HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Criminal Death Reference No. 1/2020

State Of Rajasthan, Through P.P.

----Petitioner
Versus
Mohd. Salman S/o Shakeel Ahmed, Aged About 32 Years, R/o
Village Sanjarpur, Ps Saraimeer, Distt. Azamgarh, (Uttar
Pradesh)
----Respondent
Connected With
D.B. Criminal Appeal (DB) No. 21/2022
Mohd. Saif @ Karian S/o Shadab Ahmed, R/o Sanjarpur, Thana
Saraimeer, District Azamgarh, Uttar Pradesh (Presently The
Accused Appellant Is Confined In Central Jail Jaipur Rajasthan)
----Petitioner
Versus
State Of Rajasthan, Through It Public Prosecutor
----Respondent
D.B. Criminal Appeal (DB) No. 56/2022
Mohd. Salman S/o Shakeel Ahmad, R/o Village Sanjarpur P.s.
Saraimeer Tehsil Nijamabad, District Azamgarh, Uttar Pradesh
Presently Confined In Central Jail, Jaipur
----Petitioner
Versus
State Of Rajasthan, Through Its Public Prosecutor
----Respondent
D.B. Criminal Appeal (DB) No. 213/2022
1. Saifurrehman Ansari S/o Abdul Rehman Ansari, R/o House
No. 246, Badraka Mohalla, Ps Azamgarh, District
Azamgarh, Uttar Pradesh (Presently Confined In Central Jail
Jaipur)
2. Mohd. Sarvar Azmi, S/o Mohd. Haneef, R/o Post
Chandpatti, Tehsil Sagri, Ps Ronapar, District Azamgarh,
Uttar Pradesh (Presently Confined In Central Jail, Jaipur)
----Petitioners

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Versus
State Of Rajasthan, Through Its Public Prosecutor
----Respondent
D.B. Criminal Appeal (DB) No. 253/2022
State Of Rajasthan, Through PP
----Petitioner
Versus
1. Shri Shahbaz Hussain @ Shahbaz Ahmed @ Shanu S/o Shri
Mumtaz Ahmad, Aged About 42 Years, R/o Mohalla Katra
Bazar, Bahdohi (Up) At Present R/o House No. 155/117(2)
Hata Sulema Kadar, Molviganj P.s. Naka Hindoli, Lucknow.
U.p.
2. Shri Mohammad Saif @ Kairion S/o Shri Shadab Ahmad,
Aged About 32 Years, R/o Village Sanjrpur, P.s. Saraimeer,
Distt. Azamgarh (Up)
3. Shri Mohammad Sarvar Azmi @ Rajhans Yadav S/o Shri
Mohammad Hanif, Aged About 34 Years, R/o Chand Patti
Bazar, P.s. Ronapar Zila, Distt. Aazamgarh, (Up)
4. Shri Saifur @ Saifurrehman Ansari S/o Shri Abdul Rehman
Ansari, Aged About 32 Years, R/o 246, Badarka, P.s.
Kotwali, Distt. Aazamgarh (Up)
5. Shri Mohammad Salman S/o Sakil Ahamad, Aged about 26
years R/o Sanjarpur, P.s. Saraimeer, Distt. Azamgarh (Up)
----Respondents

For State(s) : Ms. Rekha Madnani, Addl.G.A.

assisted by Ms. Savita Nathawat
For Accused(s) : Ms. Nitya Rama Krishnan, Sr. Adv.
Assisted by Mr. Vibhor Jain, Mr.
Shivam Sharma, Mr. Mayank Sapra,
Mr. Syed Saddat Ali, Mr. Aswath
Sitaraman, Mr. Raghav Tankha, Ms.
Stuti Rai

Mr. Shri Singh, Mr. Siddarth Satija, Mr.

Rajat Kumar, Ms. Tusharika Mattoo,
Ms. Ipsita Agarwal, Mr. Akash Sachan,
Ms. Zehra Khan, Mr. Syed Saddat Ali

Mr. Vishal Gosain, Ms. Seema Mishra,

Ms. Deeksha Dwivedi, Mr. Harsh
Bohra, Mr. Syed Saddat Ali

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Mr. Ashok Agarwal, Mr. Nishant Vyas,

Mr. Mujahid Ahmed, Ms. Aditi Sarswat

HON'BLE MR. JUSTICE PANKAJ BHANDARI

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

RESERVED ON :: 03/11/2022
PRONOUNCED ON :: 29/03/2023

1. Present D.B. Criminal Death Reference No.1/2020 has been

moved by Court of Special Judge, Jaipur Bomb Blast Cases, Jaipur

for confirmation of Death Sentence awarded by the Court vide

judgment of conviction dated 18.12.2019 and order of sentence

dated 20.12.2019 to accused Mohammad Salman in Sessions Case

No.8/2010 – State Versus Shri Shahbaz Hussain & Ors., FIR

No.133/2008, Police Station, Manak Chowk, Jaipur City (North).

Aggrieved by the judgment of conviction dated 18.12.2019 and

order of sentence dated 20.12.2019, accused Mohammad Salman

preferred D.B. Criminal Appeal No.56/2022, Saifur @

Saifurrehman & Sarvar Azmi @ Rajhans Yadav preferred D.B.

Criminal Appeal No.213/2022 and Mohammad Saif @ Kairion also

preferred D.B. Criminal Appeal No.21/2022. By the aforesaid

judgment dated 18.12.2019 Shahbaz Hussain @ Shahbaz Ahmed

@ Shanu was acquitted from the charges levelled against him.

State of Rajasthan has also preferred D.B. Criminal Appeal

No.253/2022 against the acquittal of Shahbaz Hussain @ Shahbaz

Ahmed @ Shanu and for enhancement of sentence of other

accused.

2. Accused Mohammad Salman has been acquitted for the

offence under Section 3 of the Prevention of Damage to Public

Property Act, 1984 and Sections 4, 5 & 6 of the Explosive

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Substances Act, 1908 read with Section 120-B IPC and Section

3/10, 20 and 38 of the Unlawful Activities Act, 1967 and other

accused namely Saifurrehman Ansari, Mohammad Saif and Sarvar

Azmi were acquitted for the offences under Section 3 of the

Prevention of Damage to Public Property Act, 1984 read with

Section 120-B IPC and Sections 4 & 5 of the Explosive Substances

Act, 1908 read with Section 120-B IPC, Section 6 of the Explosive

Substances Act, 1908 and Sections 3/10, 20 and 38 of the

Unlawful Activities Act, 1967. Accused Mohammad Salman,

Saifurrehman Ansari, Mohammad Saif and Sarvar Azmi were

convicted for the following offences:

Mohammad Salman:-

Offence Sentence Fine Sentence in

default of fine
U/s 302 IPC Death penalty Rs.50,000/-
U/s 307 IPC 7 years R.I. Rs.10,000/- 3 months
U/s 326 IPC 5 years R.I. Rs.10,000/- 3 months
U/s 324 IPC 3 years R.I. Rs.5,000/- 3 months
U/s 427 IPC 1 year S.I. Rs.1,000/- 3 months
U/s 121-A IPC Life Rs.50,000/- 3 months
Imprisonment
U/s 124-A IPC Life Rs.50,000/- 3 months
Imprisonment
U/s 153-A IPC 3 years R.I. Rs.50,000/- 3 months
U/s 3 of Life Rs.50,000/- 3 months
Explosive Imprisonment
Substances
Act, 1908
U/s 13 of 7 years R.I. Rs.50,000/- 3 months
Unlawful
Activities
(Prevention)
Act, 1967
U/s 16(1)A of Death Penalty Rs.50,000/-
Unlawful
Activities
(Prevention)
Act, 1967

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U/s 18 of Life Rs.50,000/- 3 months

Unlawful Imprisonment
Activities
(Prevention)
Act, 1967
U/s 120-B IPC Life Rs.50,000/- 3 months
Imprisonment

All sentences were directed to run concurrently.

Sarvar Azmi @ Rajhans Yadav, Mohammad Saif @ Kairion

and Saifur @ Saifurrehman:-

Offence Sentence Fine Sentence in

default of fine
U/s 302/120-B, Life Rs.50,000/- 3 months
307/120-B, Imprisonment
121-A, 124-
A/120-B IPC,
Section 3 of
Explosive
Substances
Act, 1908 r/w
Section 120-B
IPC
U/s 326/120-B 5 years R.I. Rs.10,000/- 3 months
IPC
U/s 324/120-B 3 years R.I. Rs.5,000/- 3 months
IPC
U/s 153-A/120- 3 years R.I. Rs.50,000/- 3 months
B IPC
U/s 13 of 7 years R.I. Rs.50,000/- 3 months
Unlawful
Activities
(Prevention)
Act, 1967
U/s 18 of Life Rs.50,000/- 3 months
Unlawful Imprisonment
Activities
(Prevention)
Act, 1967

All sentences were directed to run concurrently.

3. Succinctly stated the facts of the case are that a spate of

explosions took place in the crowded market, places of the walled

pink city of Jaipur on Tuesday, May 13, 2008 within a short span of

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20 minutes, resulting into death of 71 persons and injuries to 185

persons. In each of the blast sites, the bombs were planted on

brand new bicycles, which were placed at carefully selected

crowded market places near temples and police stations. In total 8

FIRs were registered, 4 FIRs were registered at Police Station

Kotwali and 4 FIRS were registered at Police Station Manak

Chowk.

4. The present case pertains to FIR No.133/2008, Police Station

Manak Chowk. The author of the FIR was Shahnavaz (PW-1). The

place of incidence of blast in this FIR is near Purva Mukhi

Hanuman Temple, Sanganeri Gate in front of “pyau” (water kiosk).

The total number of persons injured are 36 and those died in the

blast are 17.

5. On next day of the incident i.e. 14.05.2008, an Email was

received by TV Channels and News Agencies- India TV and Aaj Tak

by which Indian Mujaheedeen Organization took the responsibility

of serial bomb blasts in Jaipur. Along with the Email, one video clip

was also received, which pertained to bicycle and a bag on that

bicycle. In the first part of the Email, there is mention about the

bicycle with frame No.129489, which was placed near Police

Station, Kotwali at Chhoti Chaupar. The bicycle with the same

frame number was seized from the blast site near Police Station,

Kotwali in a damaged condition in FIR No.117/2007. Exactly 4

months after the Jaipur blasts i.e. on 13.09.2008, there were

serial bomb blasts at 5 places in Delhi. On 19.9.2008, a Team of

Delhi Police Special Cell raided a Batla House Flat in Jamia Nagar

in South Delhi following a tip-off that terrorists allegedly involved

in the Delhi serial bomb blasts were holed up there. In the

operation, two terrorists, Chhota Sajid and Aatif Ameen were

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killed and one Police Officer, Inspector-Mohan Chand Sharma

expired. Accused Mohammad Saif was arrested from the flat. On

02.10.2008 accused Mohammad Saif made a disclosure statement

which was recorded by the Delhi Police. Saif admitted his active

role in the Jaipur bomb blast case and also named 9 other accused

and their direct involvement in planting the bombs at various

places in Jaipur. In the disclosure statement, it was mentioned

that all these 10 accused had come in groups on 11 th May 2008 to

do reconnaissance “Reki” of the places where they intended to

plant bombs and returned on the same day. On 12 thMay, 2008

they made bombs at Batla House and on 13 th May, 2008 they all

came to Jaipur in a Volvo Bus in different groups and returned

back on the same day in the evening by Ajmer Shatabdi Train in

fake Hindu names.

6. Mohammad Salman was identified in test identification

parade by Rajesh Lakhwani, the shop owner. After due

investigation, charge-sheet was filed. The trial Court framed

charges under Sections 120-B, 302, 307, 326, 324, 427, 121A,

124A, 153A of IPC, Section 3 of the Prevention of Damage to

Public Property Act, 1984 read with Section 120-B IPC, Sections 3,

4, 5 of Explosive Substances Act, 1908 read with Section 120-B

IPC, Section 6 of Explosive Substances Act, 1908, Sections 3/10,

13, 18, 20, 38 of the Unlawful Activities (Prevention) Act, 1967

and Section 16(1)A or Section 16(1)A of the Unlawful Activities

(Prevention) Act, 1967 read with Section 120-B of IPC. The

accused denied the charges and sought trial, upon which, 169

witnesses, PW-1 to PW-169 were examined; documents Exhibit-

P1 to Exhibit-P334A were exhibited and Articles 1 to 54 were also

exhibited on behalf of the prosecution. Accused were examined

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under Section 313 Cr.P.C. In defence, Exhibit-D1 to Exhibit-D39

were exhibited and 3 witnesses, namely, Shahbaj Ahmed (DW-1),

Mohammad Saif (DW-2) and Sarvar Azmi (DW-3) were examined.

After hearing the parties, the learned trial Court has convicted the

accused for the offences stated above, aggrieved by which,

Mohammad Salman, Mohammad Sarvar Azmi, Saifur @

Saifurrehman and Mohammad Saif have preferred the present

appeals. Against the acquittal of Shahbaz Hussain, and for

enhancement of sentence, State has preferred appeal. Reference

has been moved by the Court of Special Judge, Jaipur Bomb Blast

Cases, Jaipur, for confirmation of death sentence of Mohammad

Salman.

7. It is contended by the learned Additional Government

Advocate that the case rests on circumstantial evidence. The first

circumstance against Salman is that his name was mentioned by

co-accused Mohammad Saif in his disclosure statements dated

01.10.2008 and 02.10.2008. Accused Mohammad Saif was

arrested on 19.09.2008 in Batla House Encounter case for Delhi

bomb blasts. It is his arrest that gave a break through to the ATS

in the investigation of Jaipur bomb blasts. In his disclosure

statement, Saif named 9 other accused, who were involved in

planting bombs at various places. It is argued that there was no

pressure on accused Mohammad Saif to make an admission of the

offence of planting bombs in Jaipur, after 4 months of the incident.

The disclosure statement of Mohammad Saif was later on

corroborated by the disclosure statement of accused Salman and

is thus relevant under Section 10 of the Evidence Act.

8. It is contended that the second circumstance against

accused Salman is disclosure statement made by him about the

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place where he planted bomb and memo of place of purchase of

cycle. It is argued that the ATS knew that the bombs are planted

at 10 places but no other persons could have known the place

from where accused Salman purchased the cycle and planted the

bomb and this fact was only within his exclusive knowledge. By his

own disclosure statement, accused Salman has not only admitted

his crime of planting bomb near Hanuman Temple Sanganeri Gate,

but he has also corroborated the disclosure statement of accused

Mohammad Saif and admitted the offence of conspiracy in serial

bomb blasts at Jaipur.

9. The third circumstance against accused Salman is his

identification by Rajesh Lakhwani (PW-147), owner of cycle shop,

in the test identification parade (Exhibit-P143). It is contended

that the test identification parade was conducted on 28.11.2010.

In the remark at Column No.3, it is mentioned that injury mark on

the cheek of accused Salman was covered by the tape and similar

tape was affixed on the cheeks of other persons, who had

participated in the test identification parade. It is argued that

Salman had purchased Atlas cycle from Hemraj Cycle & Stove

Works, the frame number of which was H-936909. The same Atlas

cycle with the same frame number was seized in a damaged

condition on 13.05.2008 from the place of incident. It is argued

that Rajesh Lakhwani (PW-147) has identified accused Salman as

the person who purchased cycle in the name of Jitendra. It is

contended that the test identification parade was conducted in a

fair manner on 28.11.2010. The injury mark on the cheek of

accused Salman was covered with a white tape and similar tapes

were put on the others. Baldev Singh (PW-126), SDM, Ajmer, who

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conducted the test identification parade has stated that he took all

precautions while conducting the test identification parade.

10. The next circumstance against accused Salman is his

identification by witness Rajesh Lakhwani (PW-147) in the Court.

11. The next circumstance against accused Salman is the

evidence with regard to travel of Salman to Jaipur from Delhi in

the name of Jitendra in the Volvo Bus. In the reservation chart of

13.05.2008 of Volvo Bus No.466, name of Jitendra Singh is

mentioned. The cycle was also purchased in the name of Jitendra

and he returned to Delhi by Shatabdi Train in the same name i.e.

Jitendra.

12. Learned Additional Government Advocate has drawn the

attention of the Court to reservation chart of Volvo Bus No.466

(Exhibit-P-244) and certified copy of the reservation chart of

Ajmer Shatabdi Ajmer to Delhi Via Jaipur (Exhibit-P136A and

137A). The confirmed list of passengers of Ajmer Shatabdi was

also exhibited as Exhibit-P76A. It is argued that it cannot be a co-

incidence that two persons came to Jaipur from Delhi along with

two others on a common single ticket No.8414254 by Volvo Bus

No.466 in the fake names of Harsh Yadava and Jitendra on

13.05.2008. They purchased cycles from Kishanpole Bazar again

in the same fake names of Harsh Yadava and Jitendra in afternoon

and after planting bombs, they left for Delhi in the same Coach C-

3 of Ajmer Shatabdi Train No.2016 again in the same fake names

of Harsh Yadava and Jitendra on 13.05.2008. It is further argued

that Salman has given a bald denial in his examination under

Section 313 of Cr.P.C., which also is a circumstance against him as

he has not shown as to at what place he was on 13.05.2008.

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13. It is contended that the Death Reference should be answered

in the affirmative and since all the other accused including

Shahbaz Hussain conspired, all should be awarded death penalty.

14. Learned counsel appearing for accused Salman contends that

disclosure statement of Mohammad Saif mentioning the name of

Salman and pointing out spot of blast vis-a-vis Salman is totally

inadmissible. It is contended that in the disclosure statement of

Mohammad Saif, he has mentioned names of 9 co-accused. He

has only mentioned Salman and there is no mention about the

parentage of Salman, place of residence of Salman and so, there

is no evidence as to how the Police came to the conclusion that

name Salman stated by Mohammad Saif referred to Mohammad

Salman, the present accused. It is also contended that any

disclosure statement made by Mohammad Saif is inadmissible in

evidence as it is hit by Section 162 of Cr.P.C. and Sections 25 and

26 of the Indian Evidence Act. It is further contended that there

was no discovery under Section 27 of the Indian Evidence Act on

the basis of the disclosure statement made by Mohammad Saif.

15. It is further contended that pointing out to the place of bomb

blasts is inadmissible and cannot be used as evidence against

Salman for the very reason that the place where the bomb blasts

took place was already in the knowledge of the Anti Terror Squad

(ATS) and the general public at large, hence, there was no

discovery of fact under Section 27 of the Indian Evidence Act with

regard to pointing to the place of bomb blasts and is thus, of no

consequence and cannot be used against present accused Salman.

The statement that he planted bomb and pointing out to the place

of bomb blasts only amounts to confession made to a Police

Officer, which is hit by Sections 25 and 26 of the Indian Evidence

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Act, which states that the confession made to a Police Officer is

not admissible against accused under any circumstance. Reliance

in this regard is placed on Aghnoo Nagesia Versus State of Bihar:

AIR 1966 SC 119 and Indra Dalal Versus State of Haryana:

(2015) 11 SCC 31.

16. It is argued by learned counsel that the bill book was a

crucial evidence and case property of the blast case. It is

surprising that the same was not seized by the Police and it was

produced for the first time by Rajesh Lakhwani (PW-147) in Court

on 28.05.2012 in Sessions Case No.2A/2010 i.e. after 4 years of

the incident.

17. It is also contended that Investigating Officer, Mahendra

Singh Choudhary (PW-169) has stated that he did not seize any

bill book in this case and stated that in the preliminary

investigation, Rajendra Singh Nain had come to the conclusion

that the cycle was bought from Kishanpole Bazar, however,

Rajendra Singh Nain, who was a very important and material

witness has been withheld by the prosecution without any

justification. Therefore, the authenticity of the bill book and also

the factum of sale of cycle by Rajesh Lakhwani is doubtful. It is

further contended that the shop from which the cycle was sold is

not established. Rajesh Lakhwani has stated that he is owner of

two shops – Hari Om Cycle Shop and Hemraj Cycle & Stove

Works. Rajesh Lakhwani has not stated that from which shop he

sold the cycle. It is also argued that no investigation has been

conducted regarding the address of the purchaser written on the

bill (Exhibit-P-185), which was given to the purchaser of the cycle.

18. It is next contended by counsel appearing for Salman that a

flawed identification after two and a half years of the incident in a

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test identification parade and identification in the Court after 4

years is wholly unreliable. It is argued that the most crucial and

direct evidence against Salman is the identification by Rajesh

Lakhwani (PW-147) as the person who purchased the cycle from

his shop on 13.05.2008. It is contended that the identification of

an accused not previously seen by a witness cannot be relied upon

in the facts and circumstances of this case, as to be able to

recognize a chance customer after two and a half years after

allegedly seeing him, a person must have an extraordinary

memory and the accused person must have very unique

distinguishing features. It is also argued that in the present case,

Rajesh Lakhwani (PW-147) is a wholly unreliable witness and his

testimony does not inspire any confidence and from the evidence,

it is not revealed that he has extraordinary memory to recognize a

chance customer after two and a half years. Therefore, the

conviction cannot be based on sole testimony of Rajesh Lakhwani

(PW-147). It is further contended that the test identification

parade is also unreliable for the reason that Salman was kept

without his face being muffled for about 3 hours in CJM Court,

Jaipur City on 23.11.2020 when he was produced vide production

warrants from Tihar Jail, Delhi by Delhi Police. It is argued that

this is violative of Rule 7.31(1)(f) of the Rajasthan Police Rules.

19. It is contended that the contention of the State that it was

only after Salman’s disclosure statement that they came to know

that Salman had placed the bomb behind Purvmukhi Hanuman

Mandir near Sanganeri Gate is de-hors the record, as in

Mohammad Saif’s pointing out memo (Exhibit-P-77A) dated

13.12.2008, the site where Salman has placed the cycle bomb

was mentioned. Thus, the pointing of Salman to the place where

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he placed the bomb is of no value as this fact was already within

the notice of the Police.

20. It is further contended that in the TIP Memo (Exhibit-P-143),

it has not been recorded that on which side of the cheek of the

dummies was the tape put. It has been merely recorded that tape

was also put on the dummies’ cheeks. The tapes put on the

dummies and accused were not seized by the Magistrate as proof

and record. This is a grave flaw in the proceedings.

21. It is next contended that the Investigating Officer, the Sub

Divisional Magistrate (SDM) conducting the TIP proceedings and

the identifying witness all entered and exited the jail premises

together thereby, violating the spirit and principle of the

requirement that the Investigating Officer must not have access to

the identifying witness or the suspect. Reference in this regard is

placed to Rule 7.31(1)(g) of the Rajasthan Police Rules. It is

contended that the Entry – Exit Jail Register of 28.11.2010 shows

that Investigating Officer, Satyendra Singh Ranawat (PW-168) and

Sub Divisional Magistrate, Baldev Singh (PW-126), who conducted

the TIP and identifying witness Rajesh Lakhwani (PW-147) all

entered the jail at 11:35 a.m. and left at 11:55 a.m.

22. It is next argued that the Apex Court has held in catena of

judgments that delay in conducting TIP proceedings and

identification of accused is fatal to the case of the prosecution and

only in exceptional circumstances when the Court is impressed

with the testimony of the identifying witness that the delay may

be condoned. The present case does not fall within the exceptional

circumstance category.

23. Counsel appearing for accused Salman has placed reliance

on Mohd. Sajjad Alias Raju Alias Salaim Versus State of West

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Bengal: (2017) 11 SCC 150 wherein the arrest was made within

two months of the incident, the test identification parade was held

25 days after the arrest and identification in Court was within

around 2 years of the incident. It was held that a mere description

of “a tall person with a shallow complexion” was wholly insufficient

to make the identification reliable. It is argued that in the present

case, no special features has been stated to make the

identification safe to rely upon. Reliance is also placed on State of

Maharashtra Versus Syed Umar Sayed Abbas & Ors.: (2016) 4

SCC 735 wherein the accused was arrested a little over a year

after the incident and TIP conducted about a month thereafter.

The Court held it to be a too longer period for the witness to have

remembered the face of the accused.

24. It is next contended that the identification in Court took

place on 23.05.2012, i.e. 4 years after the incident. Even this

identification is also flawed as the witness states that he identified

the person in jail to whom he sold the cycle, but does not state

that the same person is present in the Court. It is argued that

Rajesh Lakhwani (PW-147) has stated that he gave a description

to the Police, but what was the description given has not come in

evidence. Therefore, it is not possible to assess on what basis the

witness identified Salman. Counsel in this regard has placed

reliance on Wakil Singh Versus State of Bihar: 1981 (Supp) SCC

28 wherein the Apex Court held that the failure to give in the

examination in chief any clear description of the accused was held

to be fatal to the identification by a sole witness and fatal to the

case of the prosecution. In the case before the Apex Court, the

test identification parade was held three and a half months of the

incident and so it was held not safe to rely on an identification

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even when the test identification parade was held within 8-9 days

of arrest of the accused.

25. With regard to the contention of the State that the witness

recognized the accused as a blast took place in Jaipur and the

witness must have refreshed his memory as to whom he has sold

the cycle. It is contended that Rajesh Lakhwani has not stated

why he has recognized an alleged chance customer after a gap of

two and a half years in test identification parade. It is also

contended that neither any incident or crime had actually taken

place in the presence of the prosecution witness nor had any

special circumstance occurred which would invite his attention so

as to register the features or special attributes of the accused.

Reliance in this regard is placed on Mohd. Sajjad Alias Raju Alias

Salim Versus State of West Bengal: (2017) 11 SCC 150.

26. It is next contended by counsel for Salman that conviction

cannot be based on the sole testimony of Rajesh Lakhwani as his

statement is not of sterling quality. Reliance in this regard is

placed on Bhimappa Chandrappa Hosamani Versus State of

Karnataka: (2006) 11 SCC 323 and Rai Sandeep (alias Deep)

Versus State (NCT of Delhi): (2012) 8 SCC 21.

27. It is next argued that no question has been put to accused

under Section 313 of Cr.P.C. to the effect that Salman travelled

from Delhi to Jaipur in a Volvo Bus as Jitendra Singh. It is argued

that if an incriminating circumstance is not put to an accused,

then the evidence with regard to the same cannot be read against

the accused. It is also argued that in a case based on

circumstantial evidence, it is settled principle of law that to

establish guilt, it is required that each circumstantial fact is proved

and the chain of evidence should be so complete that no other

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hypothesis can be reached other than the guilt of the accused

beyond reasonable doubt. Conviction must be based on

circumstances, which ‘must be’ established not ‘may be’

established. Reliance in this regard is placed on Sharad

Birdhichand Sarda Versus State of Maharashtra: (1984) 4 SCC

116.

28. We have considered the contentions, for deciding the present

set of appeals, we have to ponder upon the following points:

1. Whether on 13.05.2008 at Sanganeri Gate near

Hanuman Temple, Jaipur City, Police Station Manak Chowk, a

blast took place in which 17 persons died and 36 persons

were injured?

2. Whether Shahbaz sent the mail from Sahibabad and is

a co-conspirator?

3. Whether Mohammad Salman planted the bomb on an

Atlas cycle on 13.05.2008 near Sanganeri Gate Hanuman

Mandir, Jaipur?

4. Whether Bill Books establishes sale of bicycles to the

accused on 13.05.2008 and whether the blasts took place on

the bicycles sold to the accused?

5. Whether Mohammad Saif, Shaifoorrehman and Sarvar

Azmi are co-conspirators?

29. Before adverting to the facts of the case and role of each

accused individually, we would like to deal with the judgments

cited on behalf of the State as well as on behalf of the accused.

For the sake of convenience, the judgments cited by the parties

are being discussed under various heads.

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A. CIRCUMSTANTIAL EVIDENCE:

I. Learned Additional Government Advocate has placed reliance

on Pawan Kumar Versus State of Haryana: (2001) 3 SCC 628

wherein it has been held that though it is true that there should be

no missing link in the chain of events so far as the prosecution is

concerned, but it is not that every one of the links must appear on

the surface of the evidence, since some of the links, can only be

inferred from the proven facts.

II. Contra, a catena of judgments have been cited on behalf of

learned counsels appearing on behalf of different accused.

Reliance is placed on Hanuwant Govind Nargundkar Versus State

of Madhya Pradesh: AIR 1952 SC 343 wherein it has been held

as under:

“10. Assuming that the accused Nargundkar

had taken the tenders to his house, the
prosecution, in order to bring the guilt home
to the accused, has yet to prove the other
facts referred to above. No direct evidence
was adduced in proof of those facts. Reliance
was placed by the prosecution and by the
courts below on certain circumstances, and
intrinsic evidence contained in the impugned
document,Exhibit-P-3A.
In dealing with circumstantial evidence the
rules specially applicable to such evidence
must be borne in mind. In such cases there is
always the danger that conjecture or suspicion
may take the place of legal proof and
therefore it is right to recall the warning
addressed by Baron Alderson, to the jury in
Reg v. Hodge (1838) 2 Lew. 227, where he
said:-
"The mind was apt to take a pleasure in
adapting circumstances to one another, and
even in straining them a little, if need be, to
force them to form parts of one connected
whole; and the more ingenious the mind of
the individual, the more likely was it,

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considering such matters to overreach and

mislead itself, to supply some little link that is
wanting, to take for granted some fact
consistent with its previous theories and
necessary to render them complete."
It is well to remember that in cases where the evidence
is of a circumstantial nature, the circumstances from
which the conclusion of guilt is to be drawn should in
the first instance be fully established, and all the facts
so established should be consistent only with the
hypothesis of the guilt of the accused. Again,
the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused
and it must be such as to show that within all human
probability the act must have been done by the
accused. In spite of the forceful arguments addressed to
us by the learned Advocate-General on behalf of the
State we have not been able to discover any such
evidence either intrinsic within Exhibit P-3A or outside
and we are constrained to observe that the courts below
have just fallen into the error against which warning
was uttered by Baron Alderson in the above mentioned
case.”

III. Reliance is also placed on Sharad Birdhichand Sarda Versus

State of Maharashtra: (1984) 4 SCC 116 wherein the Court has

held as under:

“152. Before discussing the cases relied upon by the

High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant v. State of Madhya Pradesh:
1953CriLJ129. This case has been uniformly followed
and applied by this Court in a large number of latter
decisions up-to-date, for instance, the cases of Tufail
(Alias) Simmi v. State of Uttar Pradesh:
(1969)3SCC198 and Ramgopal v State of Maharashtra
MANU/SC/0168/1971 : 1972CriLJ473. It may be useful
to extract what Mahajan, J. has laid down in
Hanumant's case:

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It is well to remember that in cases where the

evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to
show that within all human probability the act must
have been done by the accused.
153. A close analysis of this decision would show that
the following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated
that the circumstances concerned 'must or should' and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may be
proved' and 'must be or should be proved' as was held
by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783
where the following observations were made:
Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a Court
can convict, and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions.
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature
and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based

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on circumstantial evidence.
158. It may be necessary here to notice a very forceful
argument submitted by the Additional Solicitor-General
relying on a decision of this Court in Deonandan Mishra
v. State of Bihar MANU/SC/0030/1955: 1955CriLJ1647,
to supplement his argument that if the defence case is
false it would constitute an additional link so as to
fortify the prosecution case. With due respect to the
learned Additional Solicitor General we are unable to
agree with the interpretation given by him of the
aforesaid case, the relevant portion of which may be
extracted thus:
But in a case like this where the various links as
stated above have been satisfactorily made out and the
circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity
to the deceased as regards time and situation… such
absence of explanation or false explanation would itself
be an additional link which completes the chain.
159. It will be seen that this Court while taking into
account the absence of explanation or a false
explanation did hold that it will amount to be an
additional link to complete the chain but these
observations must be read in the light of what this
Court said earlier, viz., before a false explanation can
be used as additional link, the following essential
conditions must be satisfied:
(1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the
accused with reasonable definiteness, and
(3) the circumstance is in proximity to the time and
situation.
160. If these conditions are fulfilled only then a Court
can use a false explanation or a false defence as an
additional link to lend an assurance to the Court and
not otherwise. On the facts and circumstances of the
present case, this does not appear to be such a case.
This aspect of the matter was examined in Shankarlal's
case MANU/SC/0211/1980: 1981CriLJ325 (supra)
where this Court observed thus:
Besides, falsity of defence cannot take the place
of proof of facts which the prosecution has to establish
in order to succeed. A false plea can at best be
considered as an additional circumstance, if other
circumstances point unfailingly to the guilt of the
accused.
161. This Court, therefore, has in no way departed

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from the five conditions laid down in Hanumant's

case MANU/SC/0037/1952: 1953CriLJ129 (supra).
Unfortunately, however, the High Court also seems to
have misconstrued this decision and used the so-called
false defence put by the appellant as one of the
additional circumstances connected with the chain.
There is a vital difference between an incomplete chain
of circumstances and a circumstance which, after the
chain is complete, is added to it merely to reinforce the
conclusion of the Court. When the prosecution is unable
to prove any of the essential principles laid down in
Hanumant's case, the High Court cannot supply the
weakness or the lacuna by taking aid of or recourse to
a false defence or a false plea. We are, therefore,
unable to accept the argument of the Additional
Solicitor-General.”

IV. Reliance is next placed on Musheer Khan Versus State of

M.P.: (2010) 2 SCC 748 wherein it has been held as under:

“39. In a case of circumstantial evidence, one must look

for complete chain of circumstances and not on snapped
and scattered links which do not make a complete
sequence. This Court finds that this case is entirely
based on circumstantial evidence. While appreciating
circumstantial evidence, the Court must adopt a
cautious approach as circumstantial evidence is
"inferential evidence" and proof in such a case is
derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once observed that
"proof does not mean rigid mathematical" formula since
"that is impossible". However, proof must mean such
evidence as would induce a reasonable man to come to
a definite conclusion. Circumstantial evidence, on the
other hand, has been compared by Lord Coleridge "like
a gossamer thread, light and as unsubstantial as the air
itself and may vanish with the merest of touches". The
learned Judge also observed that such evidence may be
strong in parts but it may also leave great gaps and
rents through which the accused may escape.
Therefore, certain rules have been judicially evolved for
appreciation of circumstantial evidence.
41. To my mind, the first rule is that the facts alleged as
the basis of any legal inference from circumstantial
evidence must be clearly proved beyond any reasonable
doubt. If conviction rests solely on circumstantial
evidence, it must create a network from which there is

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no escape for the accused. The facts evolving out of

such circumstantial evidence must be such as not to
admit of any inference except that of guilt of the
accused. (See Raghav Prapanna Tripathi and Ors. v.
State of U.P. MANU/SC/0127/1962 : AIR 1963 SC 74).
42. The second principle is that all the links in the chain
of evidence must be proved beyond reasonable doubt
and they must exclude the evidence of guilt of any other
person than the accused. (See: State of UP v. Ravindra
Prakash Mittal MANU/SC/0402/1992: 1992 Crl.L.J
3693(SC))
43. While appreciating circumstantial evidence, we must
remember the principle laid down in Ashraf Ali v.
Emperor 43 Indian Cases 241 at para 14 that when in a
criminal case there is conflict between presumption of
innocence and any other presumption, the former must
prevail.
44. The next principle is that in order to justify the
inference of guilt, the inculpatory facts must be
incompatible with the innocence of the accused and is
incapable of explanation upon any other reasonable
hypothesis except his guilt.
45. When a murder charge is to be proved solely on
circumstantial evidence, as in this case, presumption of
innocence of the accused must have a dominant
role. In Nibaran Chandra Roy v. King Emperor
MANU/WB/0164/1907: 11 CWN 1085 it was held the
fact that an accused person was found with a gun in his
hand immediately after a gun was fired and a man was
killed on the spot from which the gun was fired may be
strong circumstantial evidence against the accused, but
it is an error of law to hold that the burden of proving
innocence lies upon the accused under such
circumstances. It seems, therefore, to follow that
whatever force a presumption arising under Section 106
of the Indian Evidence Act may have in civil or in less
serious criminal cases, in a trial for murder it is
extremely weak in comparison with the dominant
presumption of innocence.
46. The same principles have been followed by the
Constitution Bench of this Court in Govinda Reddy v.
State of Mysore MANU/SC/0160/1958 : AIR 1960 SC 29
where the learned Judges quoted the principles laid
down in Hanumant Govind Nargundkar and Anr. v. State
of Madhya Pradesh MANU/SC/0037/1952 : AIR 1952 SC
343. The ratio in Govind (supra) quoted in paragraph 5,
page 30 of the reports in Govinda Reddy (supra) are:
In cases where the evidence of a circumstantial

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nature, the circumstances which lead to the conclusion

of guilt should be in the first instance fully established,
and all the facts so established should be consistent
only with the guilt of the accused. Again the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words there must be a chain of evidence so complete as
not to leave any reasonable doubt for a conclusion
consistent with the innocence of the accused and it
must be shown that within all human probability the act
must have been committed by the accused.
The same principle has also been followed by this
Court in Mohan Lal Pangasa v. State of U.P.
MANU/SC/0425/1974 : AIR 1974 SC 1144.”

V. Reliance is also placed on Mousam Singha Roy Versus State

of West Bengal: (2003) 12 SCC 377 wherein the Court has held

as under:

“27. Before we conclude, we must place on record the

fact that we are not unaware of the degree of agony
and frustration that may be caused to the society in
general and the families of the victims in particular, by
the fact that a heinous crime like this goes unpunished,
but then the law does not permit the courts to punish
the accused on the basis of moral conviction or on
suspicion alone. The burden of proof in a criminal trial
never shifts, and it is always the burden of the
prosecution to prove its case beyond reasonable doubt
on the basis of acceptable evidence. In a similar
circumstance this Court in the case of Sarwan Singh
Rattan Singh v. State of Punjab MANU/SC/0038/1957 :
1957CriLJ1014 stated thus :
"It is no doubt a matter of regret that a foul cold-
blooded and cruel murder should go unpunished. There
may also be an element of truth in the prosecution story
against the accused considered as a whole, the
prosecution story may be true; but between 'may be
true' and 'must be true' there is inevitably a long
distance to travel and the whole of this distance must
be covered by the prosecution by legal, reliable and
unimpeachable evidence before an accused can be
convicted."
28. It is also a settled principle of criminal jurisprudence
that the more serious the offence, the stricter the

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degree of proof, since a higher degree of assurance is

required to convict the accused.”

VI. Reliance is next placed on Narendra Kumar Versus State of

Rajasthan: (2020) SCC 1414 wherein the warning addressed by

Baron Alderson, to the jury was quoted:

“In Inspector of Police, Tamil Nadu v. John David

MANU/SC/0461/2011: (2011) 5 SCC 509, Hon'ble
Supreme Court has held that a court must be cautious
against conjectures and surmises taking place of proof.
It was further observed that in a case depending largely
upon circumstantial evidence there is always a danger
that conjectures and surmises may take place of legal
proof. The court has to be watchful and avoid the
danger of allowing suspicion to take place of legal proof.
In Anjan Kumar Sarma and Ors. v. State of Assam
MANU/SC/0656/2017 : (2017) 14 SCC 359, factors to
be taken into account in adjudication of cases of
circumstantial evidence, have been laid down by the
Hon'ble Apex Court and it has been observed:
13. Admittedly, this is a case of circumstantial
evidence. Factors to be taken into account in
adjudication of cases of circumstantial evidence laid
down by this Court are:
(1) The circumstances from which the conclusion
of guilt is to be drawn should be fully established. The
circumstances concerned 'must' or 'should' and not 'may
be established;
(2) The facts so established should be consistent
only with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any other
hypothesis except that the Accused is guilty;
(3) The circumstances should be of a conclusive
nature and tendency;
(4) They should exclude every possible hypothesis
except the one to be proved; and
(5) There must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the Accused
and must show that in all human probability the act
must have been done by the accused.
Similar principles of law have been reiterated in
Ashish Batham v. State of Madhya Pradesh
MANU/SC/0757/2002 : (2002) 7 SCC 317, and in
Inspector of Police, Tamil Nadu v. John David (supra).

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12. Thus, as per the law settled by the judgments of

Hon'ble Supreme Court, the circumstances from which
the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned 'must' or
'should' and not 'may be' established. The facts so
established should be consistent only with the
hypothesis of the guilt of the accused. They should not
be explainable on any other hypothesis except that the
accused is guilty. The circumstances should be of
conclusive nature and tendency and they should exclude
every possible hypothesis except the one to be proved.
There must be a chain of evidence so complete as not to
leave any reasonable ground for conclusion consistent
with the innocence of accused and must show that in all
human probability the act must have been done by the
accused.”

VII. Reliance is also placed on Padala Veera Reddy Versus State

of Andhra Pradesh & Ors.: (1989) Supp 2 SCC 706 wherein also

the Court again reiterated the tests which are required and held as

under:

“10. Before adverting to the arguments advanced by the

learned Counsel we shall at the threshold point out that
in the present case here is no direct evidence to connect
the accused with the offence in question and the
prosecution rests its case solely on circumstantial
evidence. This Court in a series of decisions has
consistently held that when a case rests upon
circumstantial evidence such evidence must satisfy the
following tests :
(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only

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be consistent with the guilt of the accused but should be

inconsistent with his innocence.”

VIII. Reliance is also placed on C. Chenga Reddy & Ors. Versus

State of Andra Pradesh: (1996) 10 SCC 193 wherein it has been

held hereunder:

“21. In a case based on circumstantial evidence, the

settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and
such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete and
there should be no gap left in the chain of evidence.
Further, the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence.
In the present case the courts below have
overlooked these settled principles and allowed
suspicion to take the place of proof besides relying upon
some inadmissible evidence.”

IX. Reliance is also placed on Madhu Versus State of Kerala:

(2012) 2 SCC 399 wherein it was held as under:

“5. The care and caution with which circumstantial

evidence has to be evaluated stands recognized by
judicial precedent. Only circumstantial evidence of a
very high order can satisfy the test of proof in a criminal
prosecution. In a case resting on circumstantial
evidence, the prosecution must establish a complete
unbroken chain of events leading to the determination
that the inference being drawn from the evidence is the
only inescapable conclusion. In the absence of
convincing circumstantial evidence, an accused would
be entitled to the benefit of doubt. During the course of
deliberations of the present controversy, we shall
endeavour to evaluate the worthiness of circumstantial
evidence produced by the prosecution to prove the guilt
of the accused. But more importantly, our endeavour
would be to evaluate the admissibility of the statements
made by the accused to the police, during the course of
their detention by the police, resulting in the discovery
of the gold ornaments, belonging to Padmini Devi, after
having committed her murder. This piece of evidence
has been relied upon to connect the accused with the

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crime.”

X. Reliance is also placed on Tanviben Pankaj Kumar Divetia

Versus State of Gujarat: (1997) 7 SCC 156 wherein it has been

held by the Court as under:

“45. The principle for basing a conviction on the basis of

circumstantial evidences has been indicated in a number
of decisions of this Court and the law is well settled that
each and every incriminating circumstance must be
clearly established by reliable and clinching evidence
and the circumstances so proved must form a chain of
events from which the only irresistible conclusion about
the guilt of the accused can be safely drawn and no
other hypothesis against the guilt is possible. This Court
has clearly sounded a note of caution that in a case
depending largely upon circumstantial evidence, there is
always a danger that conjecture or suspicion may take
the place of legal proof. The Court must satisfy itself
that various circumstances in the chain of events have
been established clearly and such completed chain of
events must be such as to rule out a reasonable
likelihood of the innocence of the accused. It has also
been indicated that when the important link goes, the
chain of circumstances gets snapped and the other
circumstances cannot in any manner, establish the guilt
of the accused beyond all reasonable doubts. It has
been held that the Court has to be watchful and avoid
the danger of allowing the suspicion to make the place
of legal proof for some times, unconsciously it may
happen to be a short step between moral certainty and
legal proof. It has been indicated by this Court that
there is a long mental distance between 'may be true'
and 'must be true' and the same divides conjectures
from sure conclusions. Jaharlal Das v. State of Orissa
MANU/SC/0586/1991 : 1991CriLJ1809
46. We may indicate here that more the suspicious
circumstances, more care and caution are required to
be taken otherwise the suspicious circumstances may
unwittingly enter the adjudicating thought process of
the Court even though the suspicious circumstances had
not been clearly established by clinching and reliable
evidences. It appears to us that in this case, the
decision of the Court in convicting the appellant has
been the result of the suspicious circumstances entering
the adjudicating thought process of the Court.”

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XI. In Pawan Kumar Versus State of Haryana: (2001) 3 SCC

628 wherein the Court has held as under:

“2. Before adverting to the rival contentions, be it noted

that the entire matter hinges on circumstantial
evidence. There is also however existing on record, a
dying declaration, but its effect on the matter, shall be
discussed shortly hereafter in this judgment.
Incidentally success of the prosecution on the basis of
circumstantial evidence will however depend on the
availability of a complete chain of events so as not to
leave any doubt for the conclusion that the act must
have been done by the accused person. While however,
it is true that there should be no missing links, in the
chain of events so as far as the prosecution is
concerned, but it is not that every one of the links must
appear on the surface of the evidence, since some of
these links may only be inferred from the proven facts.
Circumstances of strong suspicion without however any
conclusive evidence are not sufficient to justify the
conviction and it is on this score that great care must be
taken in evaluating the circumstantial evidence. In any
event, on the availability of two inferences, the one in
favour of the accused must be accepted and the law is
well settled on this score, as such we need not dilate
much in that regard excepting however, noting the
observations of this Court in the case of State of U.P.
Vs. Ashok Kumar Srivastava MANU/SC/0161/ 1992 :
[1992]1SCR37 wherein this Court in paragraph 9 of the
report observed:-
"9. This Court has, time out of number, observed
that while appreciating circumstantial evidence the
Court must adopt a very cautious approach and should
record a conviction only if all the links in the chain are
complete pointing to the guilt of the accused and every
hypothesis of innocence is capable of being negatived
on evidence. Great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is
reasonably capable of two inferences, the one in favour
of the accused must be accepted. The circumstance
relied upon must be found to have been fully
established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis
of guilt. But this is not to say that the prosecution must
meet any and every hypothesis put forward by the
accused however far-fetched and fanciful it might be.

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Nor does it mean that prosecution evidence must be

rejected on the slightest doubt because the law permits
rejection if the doubt is reasonable and not
otherwise.....…"
3. The other aspect of the issue is that the evidence on
record, ascribed to be circumstantial, ought to justify
the inferences of the guilt from the incriminating facts
and circumstances which are incompatible with the
innocence of the accused or guilt of any other person.
The observations of this Court in the case of Balwinder
Singh Vs. State of Punjab MANU/SC/0160/1986:
1987CriLJ330 lends concurrence to the above.”

XII. From the judgments referred to herein-above, it can be

safely deduced that in cases pertaining to circumstantial evidence,

the circumstance from which conclusion of guilt is to be drawn

should be fully established i.e. (i) the circumstances concerned

‘must or should’ be established and not ‘may’ be established, (ii)

the fact so established should be consistent only with the

hypothesis of the guilt of the accused that is to say there should

not be explainable on any other hypothesis except that the

accused is guilty, (iii) circumstances should be of a conclusive

nature and tendency, (iv) the circumstances should exclude every

possible hypothesis except the one to be proved and (v) there

must be a chain of evidence so complete as not to leave any

reasonable ground for the conclusion consistent with the

innocence of the accused and must show that in all human

probability the act must have been done by the accused. Courts

should be watchful and avoid the danger of allowing the suspicion

to take the place of legal proof and that there is a long distance

between “may be true” and “must be true”.

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B. EVIDENCIARY VALUE OF A DISCLOSURE LEADING TO A

DISCOVERY U/S 27 OF THE EVIDENCE ACT:

I. Learned Additional Government Advocate has placed reliance

on Mehboob Ali & Anr. Versus State of Rajasthan: (2016) 14 SCC

640 wherein it was held as under:

“20. Considering the aforesaid dictums, it is apparent

that there was discovery of a fact as per the statement
of Mehmood Ali and Mohd. Firoz. Co-accused was
nabbed on the basis of identification made by the
accused Mehboob and Firoz. He was dealing with fake
currency notes came to the knowledge of police through
them. Recovery of forged currency notes was also made
from Anju Ali. Thus the aforesaid accused had the
knowledge about co-accused Anju Ali who was nabbed
at their instance and on the basis of their identification.
These facts were not to the knowledge of the Police
hence the statements of the accused persons leading to
discovery of fact are clearly admissible as per the
provisions contained in Section 27 of the Evidence Act
which carves out an exception to the general provisions
about inadmissibility of confession made under police
custody contained in Sections 25 and 26 of the Evidence
Act.”

II. Reliance is also placed on State (NCT of Delhi) Versus Navjot

Sandhu: (2005) 11 SCC 600 wherein it has been held as under:

“There is one more point which we would like to discuss

i.e. whether pointing out a material object by the
accused furnishing the information is a necessary
concomitant of Section 27. We think that the answer
should be in the negative. Though in most of the cases
the person who makes the disclosure himself leads the
Police Officer to the place where an object is concealed
and points out the same to him, however, it is not
essential that there should be such pointing out in order
to make the information admissible under Section 27. It
could very well be that on the basis of information
furnished by the accused, the Investigating Officer may
go to the spot in the company of other witnesses and
recover the material object. By doing so, the
Investigating Officer will be discovering a fact viz., the
concealment of an incriminating article and the

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knowledge of the accused furnishing the information

about it. In other words, where the information
furnished by the person in custody is verified by the
Police Officer by going to the spot mentioned by the
informant and finds it to be correct, that amounts to
discovery of fact within the meaning of Section 27. Of
course, it is subject to the rider that the information so
furnished was the immediate and proximate cause of
discovery. If the Police Officer chooses not to take the
informant- accused to the spot, it will have no bearing
on the point of admissibility under Section 27, though it
may be one of the aspects that goes into evaluation of
that particular piece of evidence.”

III. Counsel appearing for the accused has placed reliance on

Ashish Jain & Ors. Versus Makrand Singh & Ors.: (2019) 3 SCC

770 wherein the Apex Court reproduced the observations of the

Supreme Court regarding the relationship between Section 27 of

the Evidence Act and Article 20(3) of the Constitution of India and

held as under:

“23. As regards the recovery of incriminating material at

the instance of the Accused, the Investigating Officer
K.D. Sonakiya, PW35, has categorically deposed that all
the confessions by the Accused persons were made
after interrogation, but the mode of this interrogation
does not appear to be of normal character, inasmuch as
he himself has deposed that the Accused persons were
further grilled and interrogated multiple times before
extracting the confessions which lead to the recovery of
the ornaments, cash, weapons and key.
24. We find from the totality of facts and circumstances
that the confessions that led to the recovery of the
incriminating material were not voluntary, but caused by
inducement, pressure or coercion. Once a confessional
statement of the Accused on facts is found to be
involuntary, it is hit by Article 20(3) of the Constitution,
rendering such a confession inadmissible. There is an
embargo on accepting self-incriminatory evidence, but if
it leads to the recovery of material objects in relation to
a crime, it is most often taken to hold evidentiary value
as per the circumstances of each case. However, if such
a statement is made under undue pressure and
compulsion from the investigating officer, as in the

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present matter, the evidentiary value of such a

statement leading to the recovery is nullified.
25. It is noteworthy to reproduce the observations of
this Court regarding the relationship between Section 27
of the Evidence Act and Article 20(3) of the Constitution
in Selvi v. State of Karnataka, MANU/SC/0325/2010 :
(2010) 7 SCC 263:
“102. As mentioned earlier "the right against self-
incrimination" is now viewed as an essential safeguard
in criminal procedure. Its underlying rationale broadly
corresponds with two objectives-firstly, that of ensuring
reliability of the statements made by an Accused, and
secondly, ensuring that such statements are made
voluntarily. It is quite possible that a person suspected
or Accused of a crime may have been compelled to
testify through methods involving coercion, threats or
inducements during the investigative stage. When a
person is compelled to testify on his/her own behalf,
there is a higher likelihood of such testimony being
false. False testimony is undesirable since it impedes
the integrity of the trial and the subsequent verdict.
Therefore, the purpose of the "rule against involuntary
confessions" is to ensure that the testimony considered
during trial is reliable. The premise is that involuntary
statements are more likely to mislead the Judge and the
prosecutor, thereby resulting in a miscarriage of justice.
Even during the investigative stage, false statements
are likely to cause delays and obstructions in the
investigation efforts.
103. The concerns about the "voluntariness" of
statements allow a more comprehensive account of this
right. If involuntary statements were readily given
weightage during trial, the investigators would have a
strong incentive to compel such statements-often
through methods involving coercion, threats,
inducement or deception. Even if such involuntary
statements are proved to be true, the law should not
incentivise the use of interrogation tactics that violate
the dignity and bodily integrity of the person being
examined. In this sense, "the right against self-
incrimination" is a vital safeguard against torture and
other "third-degree methods" that could be used to
elicit information. It serves as a check on police
behaviour during the course of investigation. The
exclusion of compelled testimony is important otherwise
the investigators will be more inclined to extract
information through such compulsion as a matter of
course. The frequent reliance on such "short cuts" will

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compromise the diligence required for conducting

meaningful investigations. During the trial stage, the
onus is on the prosecution to prove the charges levelled
against the Defendant and the "right against self-
incrimination" is a vital protection to ensure that the
prosecution discharges the said onus.
133. We have already referred to the language of
Section 161 Code of Criminal Procedure which protects
the Accused as well as suspects and witnesses who are
examined during the course of investigation in a
criminal case. It would also be useful to refer to
Sections 162, 163 and 164 Code of Criminal Procedure
which lay down procedural safeguards in respect of
statements made by persons during the course of
investigation. However, Section 27 of the Evidence Act
incorporates the "theory of confirmation by subsequent
facts" i.e. statements made in custody are admissible to
the extent that they can be proved by the subsequent
discovery of facts. It is quite possible that the content of
the custodial statements could directly lead to the
subsequent discovery of relevant facts rather than their
discovery through independent means. Hence such
statements could also be described as those which
"furnish a link in the chain of evidence" needed for a
successful prosecution. This provision reads as follows:
27. How much of information received from
Accused may be proved.-Provided that, when any fact is
deposed to as discovered in consequence of information
received from a person Accused of any offence, in the
custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be
proved.”

IV. Reliance is also placed on Niwas @ Patel Versus State: ILR

2010 (1) Delhi 342 wherein the Apex Court observed that a

disclosure statement do not inspire confidence and being not

explained as to why they were recorded, the same have to be

viewed with suspicion. Since, the clouds of suspicion have not

been removed in that nothing has been shown to us by the

prosecution, where from we can independently gather that the

same inspire confidence. The Apex Court held the evidence to be

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tainted evidence and the prosecutor was not held entitled to the

fruits of such a poison tree.

V. Reliance is also placed on Digamber Vaishnav & Anr. Versus

State of Chhattisgarh: (2019) 4 SCC 522 wherein it has been

held as under:

“29. The second circumstance relied upon by the

prosecution is the evidence of recovery. Under Section
27 of the Indian Evidence Act, it is not the discovery of
every fact that is admissible but the discovery of
relevant fact is alone admissible. Relevancy is nothing
but the connection or the link between the facts
discovered with the crime. The recovery of the
motorcycle is sought to be relied upon as a
circumstance against the Appellants. There is nothing
on record to show that the motorcycle recovered at the
instance of Appellant No. 1, belongs to him. PW-13, IO,
in his cross-examination admits that he does not know
whether the Appellant No. 1 is the owner of the
motorcycle. He further admits that no attempts were
made by him to enquire about the owner of the vehicle.”

VI. Reliance is also placed on Sangappa Basalingappa Rabasetty

Versus State of Karnataka: Criminal Appeal No.37/1982 wherein

it was held as under:

“The confessions made to the police are irrelevant and

inadmissible in evidence under Sections 24, 25 and 26
of the Evidence Act. Section 27 makes a departure from
the principle laid down in Sections 24 and 26 of the
Evidence Act. When the information contained in the
statements (whether amounting to a confession or not)
made by an accused person in police custody is
confirmed by the finding of some object or fact, the
danger disappears; for the discovery of the stolen
goods, the instrument of crime, the dead body, the
clothes which the deceased was wearing or any other
material thing, which are capable of being perceived by
the senses demonstrates conclusively that these
portions at least of the confession cannot have been
false. In such a case so much of the information given
by the accused as relates distinctly to the fact thereby
discovered becomes relevant under Section 27. The
Section is based on the view that if a fact is actually

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discovered in consequence of information given, some

guarantee is afforded thereby that the information was
true, and accordingly can be safely allowed to be given
in evidence. It can be seen that simply discovery of fact
as a result of information from accused does not make it
admissible unless its relevancy is established by other
evidence showing the connection between the fact
discovered and the offence charged and the accused.
Section 27 involves the principle of confirmation by
subsequent facts.
There appears to be a distinction between a
statement that “it is lying hid or buried at a certain
place” and “I hid or buried it at a certain place”. For
instance, in the case of a dead body, a statement of the
latter kind involves a confession of concealing evidence
or conniving at such being done; or the statement” I
stole and buried or concealed” or “the stolen property
was hid at a certain place” includes a confession of theft
and it might also be hit by Sections 25 or 26. In the
application of the rule it should never be lost sight of
that part of a statement wherein the accused admits his
guilt in regard to an offence is inadmissible as it does
not in any sense relate distinctly to the discovery of any
fact.”

VII. Reliance is next placed on Prabhu Versus State of U.P.: AIR

1963 SC 1113 wherein the Apex Court has held as under:

“Section 27 provides that when any fact is deposed to

and discovered in consequence of information received
from a person accused of any offence, in the custody of
a police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to
the fact thereby discovery may be proved. In Pulukuri
Kotayya v. King Emperor I.L.R. (1947) IndAp 65 the
Privy Council considered the true interpretation of s. 27
and said:
"It is fallacious to treat the 'fact discovered' within
the section as equivalent to the object produced; the
fact discovered embraces the place from which the
object is produced and the knowledge of the accused as
to this and the information given must relate distinctly
to this fact. Information as to past user or the past
history, of the object produced is not related to its
discovery in the setting in which it is discovered.
Information supplied by a person in custody that 'I will
produce a knife concealed in the roof of my house' does

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not lead to the discovery of a knife; knives were

discovered many years ago. It leads to the discovery of
the fact that a knife is concealed in the house of the
information to his knowledge, and if the knife is proved
to have been used in the commission of the offence, the
fact discovered is very relevant. But if to the statement
the words be added 'with which stabbed A.', these
words are inadmissible since they do not related to the
discovery of the knife in the house of the informant." (p.
77)

VIII. Reliance is also placed on State of NCT Delhi Versus Navjot

Sandhu (supra) commonly known as “Parliament Attack Case”

wherein it was held that a fact should be discovered in

consequence of the information received from the accused. If the

name and address of the shop was already known to the police

from the packets of seized article, the shop pointed out by the

accused could be admitted under Section 27 of the Indian

Evidence Act. It is argued by counsel for the accused that

relationship of cause and effect must exist between information

and fact discovered. In this regard, they have placed reliance on

Himachal Pradesh Administration Versus Om Prakash: (1972) 1

SCC 249 wherein it was held as under:

“13. Thereafter on the information furnished by the

accused that he had purchased the weapon from Ganga
Singh P.W. 11 and that he would take them to him, they
went to the that of P.W. 11 where the accused pointed
him out to them. It is contended that the information
given by the accused that he purchased the dagger
from P.W. 11 followed by his leading the police to his
than and pointing him out is inadmissible under Section
27 of the Evidence Act. In our view there is force in this
contention. A fact discovered within the meaning of
Section 27 must refer to a material fact to which the
information directly relates. In order to render the
information admissible the fact discovered must be
relevant and must have been such that it constitutes the
information through which the discovery was made.
What is the fact discovered in this case? Not the dagger

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but the dagger hid under the stone which is not known
to the police. (See Pulukuri Kotayya and Ors. v. King-
Emperor 74 India Appeals p. 65. But thereafter can it be
said that the information furnished by the accused that
he purchased the dagger from P.W. 11 led to a fact
discovered when the accused took the police to the than
of P.W. 11 and pointed him out? A single Bench of the
Madras High Court in Public Prosecutor v. India China
Lingiah and Ors. AIR 1954 Mad. 333, and in re Vellingiri
MANU/TN/0259/1950: AIR1950Mad613, seems to have
taken the view that the information by an accused
leading to the discovery of a witness to whom he had
given stolen articles is a discovery of a fact within the
meaning of Section 27. In Emperor v. Ramanuja
Ayyangar AIR 1935 Mad. 528, a Full Bench of three
Judges by a majority held that the statement of the
accused "I purchased the mattress from this shop and it
was this woman (another witness) that carried the
mattress" as proved by the witness who visited him with
the police was admissible because the word 'fact' is not
restricted to something which can be exhibited as a
material object. This judgment was before Pulukuri
Kotayya's case 74 I.A. 64 when as far as the Presidency
of Madras was concerned the law laid down by the Full
Bench of that Court, in Re Athappa Goundan ILR 1937
Mad 695 prevailed. It held that where the accused's
statement connects the fact discovered with the offence
and makes it relevant, even though the statement
amounts to a confession of the offence, it must be
admitted because it is that that has led directly to the
discovery. This view was over-ruled by the Privy Council
in Pulukuri Kotayya's case 74 I.A. 64 and this Court had
approved the Privy Council case in Ramkishan Mithanlal
Sharma v. The State of Bombay MANU/SC/0044/1954:
1955CriLJ196.
14. In the Full Bench judgment of seven Judges in
Sukhan v. The Crown ILR Lah 283, which was approved
by the Privy Council in Pulukuri Kotayya's case 74 I.A.
64, Shadi Lal, C.J., as he then was speaking for the
majority pointed out that the expression 'fact' as
defined by Section 3 of the Evidence Act includes not
only the physical fact which can be perceived by the
senses but also the psychological fact or mental
condition of which any person is conscious and that it is
in the former sense that the word used by the
Legislature refers to a material and not to a mental fact.
It is clear therefore that what should be discovered is
the material fact and the information that is admissible

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is that which has caused that discovery so as to connect

the information and the fact with each other as the
'cause and effect'. That information which does not
distinctly connect with the fact discovered or that
portion of the information which merely explains the
material thing discovered is not admissible under
Section 27 and cannot be proved. As explained by this
Court as well as by the Privy Council, normally Section
27 is brought into operation where a person in police
custody produces from some place of concealment some
object said to be connected with the crime of which the
informant is the accused. The concealment of the fact
which is not known to the police is what is discovered by
the information and lends assurance that the
information was true. No witness with whom some
material fact, such as the weapon of murder, stolen
property or other incriminating article is not hidden sold
or kept and which is unknown to the Police can be said
to be discovered as a consequence of the information
furnished by the accused. These examples however are
only by way of illustration and are not exhaustive. What
makes the information leading to the discovery of the
Witness admissible is the discovery from him of the
thing sold to him or hidden or kept with him which the
police did not know until the information was furnished
to them by the accused. A witness cannot be said to be
discovered if nothing is to be found of recovered from
him as a consequence of the information furnished by
the accused and the information which disclosed the
identity of the witness will not be admissible. But even
apart from the admissibility of the information under
Section 27, the evidence of the Investigating Officer and
the panchas that the accused had taken them to P.W. 11
and pointed him out and as corroborated by P.W. 11
himself would be admissible under Section 8 of the
Evidence Act as conduct of the accused.”

IX. Reliance is also placed on Sukhan Versus The Crown:

Criminal Appeal No.1388 of 1928 decided by Full Bench of

Lahore High Court wherein it has been held as under:

“Having ascertained the fact discovered we proceed to

determine how much of the information supplied by the
accused may be proved. The language of section 27,
when analysed, shows that the Legislature has
prescribed the following two limitations in order to

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define the scope of the information provable against the

accused:-(!) The information must be such as has
caused the discovery of the fact. This condition follows
from the phrase “discovered in consequence of
information” and also from the expression “thereby
discovered” used by the Legislature with reference to
the fact. In other words, the fact must be the
consequence, and the information the cause of its
discovery. The information and the fact should be
connected with each other as cause and effect. If any
portion of the information does not satisfy this test, it
should he excluded. (2) The information must “relate
distinctly” to the fact discovered. The word, “relate’
means “to have reference to” or '‘to connect” and the
word '‘distinctly” means ‘‘clearly, unmistakably,
decidedly or indubitably.” To put it in a different
language, the information, must be clearly connected
with the fact.
It is an established rule of the Indian law that
every confession must be rejected which has been
improperly obtained or has been made by an accused
person to a police officer or whilst be is in the custody of
a police officer. The principle upon which the rejection is
founded is that a confession thus made or obtained is
untrustworthy. If circumstances, however, appear which
rebut the presumption of its being false and
demonstrate its truth, the confession should be allowed.
When, in consequence of information furnished by the
accused, a fact is discovered; then the discovery of that
fact supplies a guarantee of the truth of the information
which may amount to a confession. The confession in so
far as it is confirmed by the discovery should be deemed
to be true.
This, no doubt, is the rationale of the exception
enacted by section 27, but its scope must depend upon
the actual language employed by the Legislature. As I
have pointed out, the wording of the section shows that
the requirement of both conditions specified above must
be satisfied before an incriminating statement can be
received in evidence. These conditions, when combined,
lead us to conclusion that only that portion of the
information is provable which was the immediate or
proximate cause of the discovery of the fact. Anything,
which is not connected with fact as its cause, or is
connected with it, not as its immediate or direct cause,
but as its remote cause, does not come within the ambit
of the section and should be excluded.”

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X. The impact and effect of Sections 25 and 27 of the Evidence

Act have been dealt with in Indra Dalal Versus State of Haryana:

(2015) 11 SCC 31 wherein it was held as under:

“16. The philosophy behind the aforesaid provision is

acceptance of a harsh reality that confessions are
extorted by the police officers by practicing oppression
and torture or even inducement and, therefore, they are
unworthy of any credence. The provision absolutely
excludes from evidence against the accused a
confession made by him to a police officer. This
provision applies even to those confessions which are
made to a police officer who may not otherwise be
acting as such. If he is a police officer and confession
was made in his presence, in whatever capacity, the
same becomes inadmissible in evidence. This is the
substantive rule of law enshrined under this provision
and this strict rule has been reiterated countlessly by
this Court as well as the High Courts.
17. The word 'confession' has no where been defined.
However, the courts have resorted to the dictionary
meaning and explained that incriminating statements by
the accused to the police suggesting the inference of the
commission of the crime would amount to confession
and, therefore, inadmissible under this provision. It is
also defined to mean a direct acknowledgment of guilt
and not the admission of any incriminating fact,
however grave or conclusive. Section 26 of the Evidence
Act makes all those confessions inadmissible when they
are made by any person, whilst he is in the custody of a
police officer, unless such a confession is made in the
immediate presence of a Magistrate. Therefore, when a
person is in police custody, the confession made by him
even to a third person, that is other than a police officer,
shall also become inadmissible.
18. In the present case, as pointed out above, not only
the confessions were made to a police officer, such
confessional statements were made by the Appellants
after their arrest while they were in police custody. In
Bullu Das v. State of Bihar MANU/SC/0689/1998 :
(1998) 8 SCC 130, while dealing with the confessional
statements made by accused before a police officer, this
Court held as under:
7. The confessional statement, Ex. 5, stated to have
been made by the Appellant was before the police
officer in charge of the Godda Town Police Station where

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the offence was registered in respect of the murder of

Kusum Devi. The FIR was registered at the police
station on 8-8-1995 at about 12.30 p.m. On 9-8-1995,
it was after the Appellant was arrested and brought
before Rakesh Kumar that he recorded the confessional
statement of the Appellant. Surprisingly, no objection
was taken by the defence for admitting it in evidence.
The trial court also did not consider whether such a
confessional statement is admissible in evidence or not.
The High Court has also not considered this aspect. The
confessional statement was clearly inadmissible as it
was made by an accused before a police officer after the
investigation had started.
19. Notwithstanding the same, the trial court as well as
the High Court had relied upon these confessions on the
basis of these statements, coupled with 'other
connected evidence available on the record', particularly
the recovery of the scooter from the old house of
accused Indra Dalal and the disclosure/confessional
statement (Mark A) made by Jaibir in another case
bearing FIR No. 718 dated November 30, 2001
registered Under Sections 420/407/463/471/120-B
Indian Penal Code and Sections 25/54/59 of the Arms
Act, 1959 registered at Police Station: Civil Lines, Hisar,
which has been proved by Inspector Ram Avatar (PW-
15).
20. What follows from the above reasoning given by the
High Court is that the confessional statements were
supported with other evidence. Though the High Court
has mentioned 'other connected evidence', what is
relied upon is the recovery of scooter and the
disclosure/confessional statement made by Jaibir in
some other case. No other evidence is pointed out by
the High Court. On our specific query to the learned
Counsel for the State during the arguments, he also
conceded that the only 'connected evidence available on
record' was the recovery of scooter and the confessional
statement (Mark A) made by Jaibir in FIR No. 718 dated
November 30, 2001. This approach of the High Court
relying upon the confessional statements, otherwise
inadmissible, with the aid of 'other connected evidence'
is contrary to law. We harbour serious doubts about
basing criminal punishment on such an unapproach, not
permissible in law. This conclusion gets strengthened as
we proceed to discuss the nuances of legal principles
and its application to the factual canvas herein.
21. The question is as to whether these could be taken
into consideration to believe the confessional

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statements by the Appellants, which were otherwise

inadmissible in law.
22. The only portion of the information contained in the
confessional statements that may be proved is provided
Under Section 27 of the Evidence Act, which reads as
under:
“27. How much of information received from
accused may be proved. - Provided that, when any fact
is deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered,
may be proved.”
23. It is clear that Section 27 is in the form of proviso to
Sections 25 and 26 of the Evidence Act. It makes it
clear that so much of such information which is received
from a person accused of any offence, in the custody of
a police officer, which has led to discovery of any fact,
may be used against the accused. Such information as
given must relate distinctly to the fact discovered. In
the present case, the information provided by all the
accused/Appellants in the form of confessional
statements, has not led to any discovery. More starkly
put, the recovery of scooter is not related to the
confessional statements allegedly made by the
Appellants. This recovery was pursuant to the statement
made by Harish Chander Godara. It was not on the
basis of any disclosure statements made by these
Appellants. Likewise, insofar as confessional statement
(Mark A) allegedly given by Jaibir is concerned, that is
again in another FIR. We shall come to its admissibility
separately. Therefore, the situation contemplated Under
Section 27 of the Evidence Act also does not get
attracted. Even if the scooter was recovered pursuant to
the disclosure statement, it would have made the fact of
recovery of scooter only, as admissible Under Section 27
of the Evidence Act, and it would not make the so-called
confessional statements of the Appellants admissible
which cannot be held as proved against them.
24. At this juncture, let us discuss as to whether the
disclosure/confessional statement (Mark A) made by
Appellant Jaibir in another case would be relevant to
prove the charge of conspiracy. It would be pertinent to
point out that this statement is made by Jaibir much
after the incident, when, naturally, the common
intention had ceased to exist. On this ground alone it
would not be admissible.”

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XI. What can be logically deduced from the above judgments is

that any confession made to a police or while in police custody is

not admissible in evidence, however, Section 27 of the Evidence

Act is an exception. Any information given to a police which leads

to discovery of a fact is admissible to the extent a fact or a

material object is discovered. If a place is already known to the

police, there is no discovery of a fact. The fact, which is already in

notice of the police is not a fact discovered on account of

disclosure made under Section 27 of the Evidence Act. If

confessions that led to the recovery of incriminating materials

were not voluntary, but caused by inducement, pressure or

coercion, it is hit by Article 20(3) of the Constitution, rendering

such confessional statement inadmissible.

C. TEST IDENTIFICATION PARADE:

I. Learned Additional Government Advocate has placed reliance

on Brij Mohan & Ors. Versus State of Rajasthan: AIR 1994 SC

739. That was a case where accused was identified by 11

witnesses. The Court observed that even when the test

identification parade was conducted after three months, the same

cannot be rejected merely on this ground as the test identification

parade was conducted within 24 hours of the arrest in connection

with the case. The Court further observed that it was not an

ordinary case of dacoity; four persons were killed, one of them

being a lady. The gruesome and callous manner, in which the

dacoity was committed by the culprits must have left a deep

impression on the mind of the witnesses, who had occasioned to

see such culprits in the electric light during the course of

commission of assault, firing and removal of the articles from the

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house in question. This deep impression will also include the facial

impression of the culprits, which in normal course must not have

been erased only within a period of three months.

II. In Daya Singh Versus State of Haryana: AIR 2001 SC 739

where accused was identified in Court by two witnesses from

amongst the accused by pointing to them out of 14 persons. It

was observed by the Court that the offence has taken place in the

presence of the witnesses and their son and daughter-in-law were

murdered by the accused. Thus, they must have left an

impression in the mind of the witnesses and merely because test

identification parade was not got conducted, their evidence cannot

be disbelieved. That was a case where the identification in Court

was after 8 years of the incident.

III. In Heera & Ors. Versus State of Rajasthan: AIR 2007 SC

2425, the Apex Court referred to the observations made by the

Supreme Court in Matru Versus State of U.P.:

MANU/SC/0141/1971 wherein the Court observed that

identification tests do not constitute substantive evidence. They

are primarily meant for the purpose of helping the investigating

agency with an assurance that their progress with investigation

into the offence is proceeding on the right lines. The identification

can only be used as corroborative of the statement in Court. The

whole idea of a test identification parade is that witnesses who

claim to have seen the culprits at the time of occurrence are to

identify them from midst of other persons without any aid or any

other source. The test is done to check upon their veracity. In

other words, the main object of holding an identification parade,

during the investigation stage, is to test the memory of the

witnesses based upon first impression and also to enable the

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prosecution to decide whether all or any of them could be cited as

eyewitnesses of the crime.

IV. Learned Additional Government Advocate has also placed

reliance on Pramod Mondal Versus State of Bihar: (2004) 13 SCC

150 wherein the Court has held as under:

“20. It is neither possible nor prudent to lay down
any invariable rule as to the period within which a Test
Identification Parade must be held, or the number of
witnesses who must correctly identify the accused, to
sustain his conviction. These matters must be left to the
Courts of fact to decide in the facts and circumstances
of each case. If a rule is laid down prescribing a period
within which the Test Identification Parade must be held,
it would only benefit the professional criminals in whose
cases the arrests are delayed as the police have no clear
clue about their identity, they being persons unknown to
the victims. They therefore, have only to avoid their
arrest for the prescribed period to avoid conviction.
Similarly, there may be offences which by their very
nature may be witnessed by a single witness, such as
rape. The offender may be unknown to the victim and
the case depends solely on the identification by the
victim, who is otherwise found to be truthful and
reliable. What justification can be pleaded to contend
that such cases must necessarily result in acquittal
because of there being only one identifying witness?
Prudence therefore demands that these matters must
be left to the wisdom of the courts of fact which must
consider all aspects of the matter in the light of the
evidence on record before pronouncing upon the
acceptability or rejection of such identification.”

V. Reliance is also placed on Raja & Ors. Versus State of

Karnataka: (2020) 15 SCC 562 wherein it has been held by the

Apex Court as under:

“16. Again, there is no hard and fast Rule about

the period within which the TIP must be held from the
arrest of the Accused. In certain cases, this Court
considered delay of 10 days to be fatal while in other
cases even delay of 40 days or more was not
considered to be fatal at all. For instance, in Pramod
Mandal v. State of Bihar MANU/SC/0765/2004 : (2004)

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13 SCC 150 the Accused was arrested on 17.01.1989

and was put up for Test Identification on 18.02.1989,
that is to say there was a delay of a month for holding
the TIP. Additionally, there was only one identifying
witness against the said Accused. After dealing with
the decisions of this Court in Wakil Singh v. State of
Bihar MANU/SC/0277/1981 : (1981) Suppl. SCC 28,
Subhash v. State of Uttar Pradesh (1987) 3 SCC 231
and Soni v. State of Uttar Pradesh (1982) 3 SCC 368
in which benefit was conferred upon the Accused
because of delay in holding the TIP, this Court
considered the line of cases taking a contrary view as
under:
18. Learned Counsel for the State submitted
that in the instant case there was no
inordinate delay in holding the test
identification parade so as to create a doubt
on the genuineness of the test identification
parade. In any event he submitted that even
if it is assumed that there was some delay in
holding the test identification parade, it was
the duty of the Accused to question the
investigating officer and the Magistrate if
any advantage was sought to be taken on
account of the delay in holding the test
identification parade. Reliance was placed on
the judgment of this Court in Bharat Singh
v. State of U.P. MANU/SC/0092/1972 :
(1973) 3 SCC 896 In the aforesaid judgment
this Court observed thus: (SCC p. 898, para
6)
6. In S.K. Hasib v. State of Bihar
MANU/SC/0180/1971 : (1972) 4 SCC 773 it
was observed by the Court that identification
parades belong to the investigation stage
and therefore it is desirable to hold them at
the earliest opportunity. An early
opportunity to identify tends to minimise the
chances of the memory of the identifying
witnesses fading away due to long lapse of
time. Relying on this decision, counsel for
the Appellant contends that no support can
be derived from what transpired at the
parade as it was held long after the arrest of
the Appellant. Now it is true that in the
instant case there was a delay of about
three months in holding the identification
parade but here again, no questions were

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asked of the investigating officer as to why

and how the delay occurred. It is true that
the burden of establishing the guilt is on the
prosecution but that theory cannot be
carried so far as to hold that the prosecution
must lead evidence to rebut all possible
defences. If the contention was that the
identification parade was held in an irregular
manner or that there was an undue delay in
holding it, the Magistrate who held the
parade and the police officer who conducted
the investigation should have been cross-
examined in that behalf.
In the instant case we find that the
defence has not imputed any motive to the
prosecution for the delay in holding the test
identification parade, nor has the defence
alleged that there was any irregularity in the
holding of the test identification parade. The
evidence of the Magistrates conducting the
test identification parade as well as the
investigating officer has gone unchallenged.
Learned Counsel for the State is, therefore,
justified in contending that in the facts and
circumstances of this case the holding of the
test identification parade, about one month
after the occurrence, is not fatal to the case
of the prosecution as there is nothing to
suggest that there was any motive for the
prosecution to delay the holding of the test
identification parade or that any irregularity
was committed in holding the test
identification parade.”

VI. In Jagnya Versus State of Rajasthan: D.B. Criminal Appeal

No.540 of 1975: MANU/RH/0309/1980 wherein it has been

held as under:

“17. It is contended by the learned Advocate that the

identification parade in this case is far from satisfactory,
and it cannot be pressed in to service to corroborate the
statements of the witnesses recorded in the court, so
far as the identification of the accused persons is
concerned. Rule 7.31 of the Rajasthan Police Rules,
1965 deals with the identification of suspects. It
requires that these proceedings should be held soon

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after the arrest of the suspects, and it should be

vouchsafed that a suspect put to identification
proceedings has been put under veil, (Ba Parda) since
the time of arrest till the proceedings for his
identification were actually arranged. It also provides
that the suspect should be placed among other persons
similarly dressed and of the same stature in the
proportion of 8 to 10 persons to one suspect. There
should be resemblance in facial outlook of persons so
mixed up with that of the suspect. It further provides
that the officer conducting the parade should question
the witnesses as to the circumstances in which they saw
the suspect whom they claim to identify and to record
the answer in the proper column of the form. While
every precaution shall be taken to prevent collusion, the
identifying witness must be given a fair chance, and
condition must not be imposed which would make it
impossible for a person honestly capable of making an
identification, to do so. It further lays down that in this
connection it is of paramount importance that no
alteration in any way of personal appearance of
unconvicted persons should be made so as to make it
difficult to recognise them. We will like to make an
important observation here that the tendency of the
Magistrate that while conducting identification
proceedings of suspects, they conceal specific signs (as
the mole and till or mark of injury by paper chits, and
similar paper chits or the like are placed on these mixed
in the identification parade is not in accordance with
rule 7.31 of the Rajasthan Police Rules, 1965, which, as
already observed above, lays down that no alteration in
any way of personal appearance of unconvicted persons
should be made so as to make it difficult to recognise
them. We will also like to observe that specific signs
(like mole, till etc) on the face of the suspect can go a
long way for the witnesses identifying the suspect in the
identification parade, as the witness is likely to observe
those specific signs at the time of the incident and keep
them in his memory, and concealing those signs will
amount to deprive the witness of reasonable
opportunity to identify the suspect. Care should be
taken by the Magistrate to see that those who are
mixed in the parade resemble in facial outlook with that
of the suspects.”

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VII. Reliance is also placed on State of Rajasthan Versus Ranjita

Ladhuram: AIR 1962 RAJ 78 wherein the Full Bench of the

Rajasthan High Court has held that it is not necessary that entries

should be made in the various police records of the precautions

that were to be taken for keeping accused person ba-parda while

under police custody. It is also not necessary to specify in the

warrant of commitment of the accused, when he is sent to judicial

custody that he is to be kept ba-parda till identification parade

takes place nor is it necessary to specify the precautions that the

jail authorities are to take for keeping accused ba-parda. It was

also held that it is not necessary that entries should be made in

the jail record for keeping the accused ba-parda while he is in

judicial lockup. It is for police authorities to specify

administratively what precautions they would like to take in order

to avoid the accused being seen by identifying witnesses prior to

test identification parade so that value of their identification may

not be lost; but it is unnecessary for Court to lay down hide-bound

rules for conduct of police in matter of this nature, much will

depend upon circumstances of each case in evaluating evidence of

identification, to lay down any hard and fast rule would be to

unduly curtail judicial discretion of the Courts which after all, was

best judge of evidence placed before it.

VIII. Reliance is also placed on Asharfi & Ors. Versus State: AIR

1961 ALL 163 wherein Allahabad High Court held as under:

“36. The only argument put forward upon this point has
been that it stands to reason that no man can identify
after four or five years a man whom he had only seen
once. We do not accept) the argument. It is based on
pure assumption and contradicted by the fact of the
identification itself. Men differ very largely in their

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powers of observation. One man will remember a face

for a very long period though he has only seen its
possessor once, and for a very short time. Other men
who are unobservant may not be able to identify
persons whom they had a good opportunity of
identifying even a short time afterwards. The power to
identify varies according to the power of observation
and the observation may be based upon small minutiae
which a witness cannot describe himself or explain. It
has no necessary connection with education or mental
attainments."
Accordingly the test is not that the identification
parade was held after a long period but whether the
power of observation of the witness was adequate.
Were delay alone to be made the test, a premium
would manifestly be placed on absconding, and all that
would be necessary for a criminal for evading justice
would be to promptly abscond and to appear only after
the lapse of a long period of time. We refuse to believe
that this could be the intention of the law. At the same
time we must stress that whenever a test identification
is discovered to have been held with delay, the-
prosecution should explain it, and that the absence of a
reasonable explanation will detract from the value of
the test. The police can seldom be blamed for arresting
a suspected criminal with delay, but once his arrest has
been effected there can be no excuse for failure to hold
his identification within two or three weeks.”

IX. On the question of test identification parade, learned counsel

for accused has placed reliance on Rameshwar Singh Versus State

of Jammu and Kashmir: (1971) 2 SCC 715 wherein it has been

held as under:

“6. We may now turn to the evidence on the record.

Abdul Ghani Sheikh who claims to be the eye witness to
the occurrence lodged the first information report (Ex.
P-1) at 11-30 a.m. at the police station only about 200
feet away from the stadium. In order to appreciate the
value of this report and the value of the testimony of
this witness in court in regard to the description of the
alleged culprit we consider it proper to reproduce the
whole of this report. It says:
At the Stadium a football match was being played.
From there the P.A.C. men chased and turned out the

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people. All the people came out from the gates on the
East and North. They were going back through the
Hazuri Bagli Road. I was standing near the cycle-shop
which is situated close to the Stadium chowk. A P.A.C.
jawan came out of the main gate. He carried a rifle. He
fired a shot towards the road. It went in the direction of
the Militia wall. Thereafter the P.A.C. Jawan came on the
road and fired shots. He went towards the Militia gate
and inflicted bullet injuries on three of the persons
going on the Road. Then a P.A.C. Sardar and a B.S.F.
Jawan with three P.A.C. men who carried, Dandas in the
hands, got held of the said Jawan. They took him inside
the stadium. The said Jawan fired nine or ten shots
recklessly, though the way-tarers were going on the
road in a peaceful manner. There was no crowd, nor was
there any breach. * * * *”

X. Reliance is also placed on Mohd. Farooq Abdul Gafur & Ors.

Versus State of Maharashtra: (2010) 14 SCC 641 wherein it has

been held by the Court as under:

“109. The contention of the learned Counsel appearing

for accused persons that there was inordinate delay in
conducting the TIP cannot be accepted in view of the
fact that both the accused persons were taken into
custody on 25.06.1999 whereas the TIP was held on
10.08.1999. therefore, the TIP was conducted only
after a period of 45 days which is not such a long
period to cast any doubt over the evidentiary value of
the TIP. Even otherwise, a TIP does not constitute
substantive evidence but can only be used for
corroboration of the statement in court. It is primarily
meant for the purpose of helping the investigating
agency with an assurance that their progress with the
investigation is proceeding on the right lines. The
substantive evidence is the evidence of identification in
court, which in the present case has been done by PW-
18. This Court in the case of Amitsingh Bhikamsingh
Thakur v. State of Maharashtra MANU/SC/7004/2007 :
(2007) 2 SCC 310, at page 315, has succinctly
observed as follows:
13. As was observed by this Court in Matru v. State of
U.P. identification tests do not constitute substantive
evidence. They are primarily meant for the purpose of
helping the investigating agency with an assurance that
their progress with the investigation into the offence is

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proceeding on the right lines. The identification can

only be used as corroborative of the statement in court.
(See Santokh Singh v. Izhar Hussain.) The necessity for
holding an identification parade can arise only when the
accused are not previously known to the witnesses. The
whole idea of a test identification parade is that
witnesses who claim to have seen the culprits at the
time of occurrence are to identify them from the midst
of other persons without any aid or any other source.
The test is done to check upon their veracity. In other
words, the main object of holding an identification
parade, during the investigation stage, is to test the
memory of the witnesses based upon first impression
and also to enable the prosecution to decide whether
all or any of them could be cited as eyewitnesses of the
crime. The identification proceedings are in the nature
of tests and significantly, therefore, there is no
provision for it in the Code of Criminal Procedure, 1973
(in short "the Code") and the Evidence Act, 1872 (in
short "the Evidence Act"). It is desirable that a test
identification parade should be conducted as soon as
after the arrest of the accused. This becomes necessary
to eliminate the possibility of the accused being shown
to the witnesses prior to the test identification parade.
This is a very common plea of the accused and,
therefore, the prosecution has to be cautious to ensure
that there is no scope for making such allegation. If,
however, circumstances are beyond control and there is
some delay, it cannot be said to be fatal to the
prosecution.
14. "It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from the
clear provisions of Section 9 of the Evidence Act, the
position in law is well settled by a catena of decisions of
this Court. The facts, which establish the identity of the
accused persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive
evidence of a witness is the statement made in court.
The evidence of mere identification of the accused
person at the trial for the first time is from its very
nature inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to
generally look for corroboration of the sworn testimony
of witnesses in court as to the identity of the accused
who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence,

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however, is subject to exceptions, when, for example,

the court is impressed by a particular witness on whose
testimony it can safely rely, without such or other
corroboration. The identification parades belong to the
stage of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right upon
the accused to claim a test identification parade. They
do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the
Code of Criminal Procedure. Failure to hold a test
identification parade would not make inadmissible the
evidence of identification in court. The weight to be
attached to such identification should be a matter for
the courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on
corroboration.
110. Next contention of the learned Counsel appearing
for the accused persons that the photograph of Accused
No. 5 was published in an Urdu daily thereby making
the identity of Accused No. 5 public also does not find
favour in view of the fact that the witnesses are
Maharashtrians and, therefore, there is no likelihood of
their reading the paper and seeing the photograph of
Accused No. 5.”

XI. Reliance is also placed on Umesh Chandra & Ors. Versus

State of Uttarakhand: 2021 SCC OnLine SC 689 wherein it was

held as under:

“A test identification parade under Section 9 of the

Evidence Act is not substantive evidence in a criminal
prosecution but is only corroborative evidence. The
purpose of holding a test identification parade during
the stage of investigation is only to ensure that the
investigating agency prima facie was proceeding in the
right direction where the accused may be unknown or
there was a fleeting glance of the accused. Mere
identification in the test identification parade therefore
cannot form the substantive basis for conviction unless
there are other facts and circumstances corroborating
the identification.”

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XII. Reliance is also placed on Chunthuram Versus State of

Chattisgarh: (2020) 10 SCC 733 wherein the Apex Court has

held as under:

“10. The infirmities in the conduct of the Test

Identification Parade would next bear scrutiny. The
major flaw in the exercise here was the presence of the
police during the exercise. When the identifications are
held in police presence, the resultant communications
tantamount to statements made by the identifiers to a
police officer in course of investigation and they fall
within the ban of Section 162 of the Code. (See
Ramkishan Mithanlal Sharma v. The State of Bombay
MANU/SC/0044/1954 : (1955) 1 SCR 903)”

XIII. Reliance is next placed on Wakil Singh & Ors. Versus State of

Bihar: 1981 (Supp) SCC 28 wherein test identification parade

was conducted after three and a half months after the dacoity and

in view of long lapse of time, the Court considered it unsafe to

convict an accused on the basis of test identification parade. It

was further held that no precautions were made to cover the cut

mark on the cheek or to put some person having similar marks or

to conceal these cut marks. The Apex Court confirmed the order of

acquittal.

XIV. Reliance is next placed on Musheer Khan Versus State of MP:

(2010) 2 SCC 748 wherein it was held as under:

“24. It may be pointed out that identification test is not

substantive evidence. Such tests are meant for the
purpose of helping the investigating agency with an
assurance that their progress with the investigation into
the offence is proceeding on right lines. (See Matru Alias
Girish Chandra v. The State of Uttar Pradesh
MANU/SC/0141/1971 : 1971(2) SCC 75 at para 17)
25. It is also held by this Court that identification test
parade is not substantive evidence but it can only be
used in corroboration of the statements in Court. (See
Santokh Singh v. Izhar Hussain and Anr.
MANU/SC/0165/1973 : (1973) 2 SCC 406 at para 11)

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26. Recently in the case of Amitsingh Bhikam Singh

Thakur v. State of Maharashtra MANU/SC/7004/2007 :
(2007) 2 SCC 310 this Court held on a consideration of
various cases on the subject that the identification
proceedings are in the nature of tests and there is no
procedure either in Cr. P.C., 1973 or in the Indian
Evidence Act for holding such tests. The main object of
holding such tests during investigation is to check the
memory of witnesses based upon first impression and to
enable the prosecution to decide whether these
witnesses could be cited as eye witnesses of the crime.
It has also been held that the evidence of the
identification of accused for the first time is inherently
weak in character and the court has held that the
evidence in test identification parade does not constitute
substantive evidence and these parades are governed
by Section 162 of Code of Criminal Procedure and the
weight to be attached to such identification is a matter
for the courts.”

XV. Reliance is also placed on Dana Yadav @ Dahu & Ors. Versus

State of Bihar: (2002) 7 SCC 295 wherein the Apex Court after

analyzing the law concluded and one of the conclusions was that

evidence of identification of an accused in court by a witness is

substantive evidence whereas that of identification in test

identification parade is, though a primary evidence but not

substantive one, and the same can be used only to corroborate

identification of accused by a witness in court.

XVI. On the question of identification, learned counsel appearing

for accused Mohammad Salman has also placed reliance on Mohd.

Sajjad Alias Raju Alias Salim Versus State of West Bengal:

(2017) 11 SCC 150 wherein it has been held as under:

“15. In Lal Singh and Ors. v. State of U.P.

MANU/SC/0871/2003 : 2003 (12) SCC 554, this Court
in Paragraphs 28 and 43 dealt with the value or
weightage to be attached to Test Identification Parade
and the effect of delay in holding such Test Identification
Parade. The said paragraphs are as under:
“28. The next question is whether the prosecution

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has proved beyond reasonable doubt that the

Appellants are the real culprits. The value to be
attached to a test identification parade depends on
the facts and circumstances of each case and no
hard-and-fast Rule can be laid down. The court
has to examine the facts of the case to find out
whether there was sufficient opportunity for the
witnesses to identify the accused. The court has
also to Rule out the possibility of their having been
shown to the witnesses before holding a test
identification parade. Where there is an inordinate
delay in holding a test identification parade, the
court must adopt a cautious approach so as to
prevent miscarriage of justice. In cases of
inordinate delay, it may be that the witnesses may
forget the features of the accused put up for
identification in the test identification parade. This,
however, is not an absolute Rule because it
depends upon the facts of each case and the
opportunity which the witnesses had to notice the
features of the accused and the circumstances in
which they had seen the accused committing the
offence. Where the witness had only a fleeting
glimpse of the accused at the time of occurrence,
delay in holding a test identification parade has to
be viewed seriously. Where, however, the court is
satisfied that the witnesses had ample opportunity
of seeing the accused at the time of the
commission of the offence and there is no chance
of mistaken identity, delay in holding the test
identification parade may not be held to be fatal. It
all depends upon the facts and circumstances of
each case.
43. It will thus be seen that the evidence of
identification has to be considered in the peculiar
facts and circumstances of each case. Though it is
desirable to hold the test identification parade at
the earliest-possible opportunity, no hard-and-fast
Rule can be laid down in this regard. If the delay is
inordinate and there is evidence probabilising the
possibility of the accused having been shown to
the witnesses, the court may not act on the basis
of such evidence. Moreover, cases where the
conviction is based not solely on the basis of
identification in court, but on the basis of other
corroborative evidence, such as recovery of looted
articles, stand on a different footing and the court
has to consider the evidence in its entirety.”

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16. In the case in hand, apart from the fact that

there was delay in holding the Test Identification
Parade, one striking feature is that none of the
concerned prosecution witnesses had given any
identification marks or disclosed special features or
attributes of any of those four persons in general and
the accused in particular. Further, no incident or crime
had actually taken place in the presence of those
prosecution witnesses nor any special circumstances
had occurred which would invite their attention so as to
register the features or special attributes of the
concerned accused. Their chance meeting, as alleged,
was in the night and was only for some fleeting
moments.”

XVII. Reliance is next placed on State of Maharashtra Versus Syed

Umar Sayed Abbas & Ors.: (2016) 4 SCC 735 wherein it was

held as under:

“17. It is very clear that in the present case the incident

of firing occurred in the circumstances wherein much
time was not available for the eye-witnesses to clearly
see the accused. In such a situation, it was of much
more importance that the Test Identification Parades
were to be conducted without any delay. The first Test
Identification Parade was held by PW21 after about 1
1/2 months of the incident. The second Test
Identification Parade was conducted by PW18 after more
than a year of the incident. Even if it is taken into
account that A12 was arrested after a year and within
one month thereafter the test Identification Parade was
conducted, still it is highly doubtful whether the eye-
witnesses could have remembered the faces of the
accused after such a long period. Though the incident
took place in broad daylight, the time for which the eye-
witnesses could see the accused was not sufficient for
them to observe the distinguishing features of the
accused, especially because there was a commotion
created after the firing and everyone was running to
shelter themselves from the firing.”

XVIII. Reliance is next placed on Budhsen & Anr. Versus State of

U.P.: (1970) 2 SCC 128 wherein the Court has held as under:

“18. Before us the entire case depends on the

identification of the appellants and this identification is

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founded solely on test identification parades. The High

Court does not seem to have correctly appreciated the
evidentiary value of these parades though they were
considered to be the primary evidence in support of the
prosecution case. It seems to have proceeded on the
erroneous legal assumption that it is a substantive piece
of evidence and that on the basis of that evidence alone
the conviction can be sustained. And then that court
also ignored important evidence on the record in regard
to the manner in which the test identification parades
were held, and other connected circumstances
suggesting that they were held more or less in a
mechanical way without the necessary precautions
being taken to eliminate unfairness. This is clearly an
erroneous way of dealing with the test identification
parades and has caused failure of justice. Shri Rana laid
great emphasis on the fact that there is no enmity
shown between the witnesses and the appellants. In our
opinion, though this factor is relevant it cannot serve as
a substitute for reliable admissible evidence required to
establish the guilt of the accused beyond reasonable
doubt. The evidence in regard to identification having
been discarded by us as legally infirm and which does
not connect the appellants with the alleged offence it
cannot by itself sustain the conviction of the appellants.”

XIX. Reliance is also placed on Greesan Nair & Ors. Versus State

of Kerala: 2022 LiveLaw (SC) 955 wherein the Apex Court held

that test identification parade conducted in the presence of a

Police Officer is inadmissible. It was also held that test

identification parade should be conducted without avoidable and

unreasonable delay after the arrest of accused and further that

there shall be healthy ratio between suspects and non-suspects

and that test identification parade is not just an empty formality.

Relevant paragraphs of the aforesaid judgment are quoted

hereunder:

“25. Analysis: Heard the learned counsel for the parties

and perused the case records. We may, at the outset,
note that the eyewitnesses questioned by the
prosecution did not give out the names or identities of

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the Accused participating in the riot and involved in the

destruction of public property. Therefore, the IO (PW-
84) had to necessarily conduct a TIP. The object of
conducting a TIP is threefold. First, to enable the
witnesses to satisfy themselves that the accused whom
they suspect is really the one who was seen by them in
connection with the crime. Second, to satisfy the
investigating authorities that the suspect is the real
person whom the witnesses had seen in connection
with the said occurrence. Third, to test the witnesses’
memory based on first impression and enable the
prosecution to decide whether all or any of them could
be cited as eyewitnesses to the crime.

26. TIPs belong to the stage of investigation by the

police. It assures that investigation is proceeding in the
right direction. It is a rule of prudence which is required
to be followed in cases where the accused is not known
to the witness or the complainant (Matru alias Girish
Chandra v. State of U.P.; Mulla and Anr. v. State of U.P.
and C. Muniappan and Ors. v. State of Tamil Nadu). The
evidence of a TIP is admissible under Section 9 of the
Indian Evidence Act. However, it is not a substantive
piece of evidence. Instead, it is used to corroborate the
evidence given by witnesses before a court of law at
the time of trial. Therefore, TIPs, even if held, cannot
be considered in all the cases as trustworthy evidence
on which the conviction of an accused can be sustained
(State of H.P. v. Lekh Raj and Anr.; and C. Muniappan
and Ors v. State of T.N.).

27. It is a matter of great importance both for the

investigating agency and for the accused and a fortiori
for the proper administration of justice that a TIP is
held without avoidable and unreasonable delay after
the arrest of the accused. This becomes necessary to
eliminate the possibility of the accused being shown to
the witnesses before the test identification parade. This
is a very common plea of the accused, and therefore,
the prosecution has to be cautious to ensure that there
is no scope for making such an allegation. If, however,
circumstances are beyond control and there is some
delay, it cannot be said to be fatal to the prosecution.
But reasons should be given as to why there was a
delay (Mulla and Anr. v. State of U.P. and Suresh
Chandra Bahri v. State of Bihar).

28. In cases where the witnesses have had ample

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opportunity to see the accused before the identification

parade is held, it may adversely affect the trial. It is the
duty of the prosecution to establish before the court
that right from the day of arrest, the accused was kept
“baparda” to rule out the possibility of their face being
seen while in police custody. If the witnesses had the
opportunity to see the accused before the TIP, be it in
any form, i.e., physically, through photographs or via
media (newspapers, television etc…), the evidence of
the TIP is not admissible as a valid piece of evidence
(Lal Singh and Ors v. State of U.P. Suryamoorthi and
Anr. v. Govindaswamy and Ors.)

29. If identification in the TIP has taken place after the

accused is shown to the witnesses, then not only is the
evidence of TIP inadmissible, even an identification in a
court during trial is meaningless (Shaikh Umar Ahmed
Shaikh and Anr. v. State of Maharashtra). Even a TIP
conducted in the presence of a police officer is
inadmissible in light of Section 162 of the Code of
Criminal Procedure, 1973 (Chunthuram v. State of
Chhattisgarh and Ramkishan Mithanlal Sharma v. State
of Bombay).

30. It is significant to maintain a healthy ratio between

suspects and nonsuspects during a TIP. If rules to that
effect are provided in Prison Manuals or if an
appropriate authority has issued guidelines regarding
the ratio to be maintained, then such rules/guidelines
shall be followed. The officer conducting the TIP is
under a compelling obligation to mandatorily maintain
the prescribed ratio. While conducting a TIP, it is a sine-
quanon that the nonsuspects should be of the same
agegroup and should also have similar physical features
(size, weight, color, beard, scars, marks, bodily injuries
etc.) to that of the suspects. The concerned officer
overseeing the TIP should also record such physical
features before commencing the TIP proceeding. This
gives credibility to the TIP and ensures that the TIP is
not just an empty formality (Rajesh Govind Jagesha v.
State of Maharashtra and Ravi v. State).

31. It is for the prosecution to prove that a TIP was

conducted in a fair manner and that all necessary
measures and precautions were taken before
conducting the TIP. Thus, the burden is not on the
defence. Instead, it is on the prosecution (Rajesh
Govind Jagesha v. State of Maharashtra).

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42. This Court in Budhsen and Anr. v. State of UP, had

directed that sufficient precautions have to be taken to
ensure that the witnesses who are to participate in the
TIP do not have an opportunity to see the accused
before the TIP is conducted. In Lal Singh v. State of
U.P., this Court had held that a trial would be adversely
affected when the witnesses have had ample
opportunity to see the accused before the identification
parade is held. It was held that the prosecution should
take precautions and establish before the court that
right from the day of his arrest, the accused was kept
“baparda” to rule out the possibility of his face being
seen while in police custody. Later, in Lalli v. State of
Rajasthan and Maya Kaur Baldevsingh Sardar and Anr. v. State of
Maharashtra, this Court has categorically held that where
the accused has been shown to the witness or even his
photograph has been shown by the investigating officer
prior to a TIP, holding an identification parade in such
facts and circumstances remains inconsequential.
Another crucial decision was rendered by this Court
in Shaikh Umar Ahmed Shaikh and Anr. v. State of
Maharashtra, where it was held:

“8. …. But, the question arises: what value could be

attached to the evidence of identity of accused by the
witnesses in the Court when the accused were possibly
shown to the witnesses before the identification parade
in the police station. The Designated Court has already
recorded a finding that there was strong possibility that
the suspects were shown to the witnesses. Under such
circumstances, when the accused were already shown
to the witnesses, their identification in the Court by the
witnesses was meaningless. The statement of
witnesses in the Court identifying the accused in the
Court lost all its value and could not be made the basis
for recording conviction against the accused. The
reliance of evidence of identification of the accused in
the Court by PW 2 and PW 11 by the Designated Court,
was an erroneous way of dealing with the evidence of
identification of the accused in the Court by the two
eyewitnesses and had caused failure of justice. Since
conviction of the appellants have been recorded by the
Designated Court on wholly unreliable evidence, the
same deserves to be set aside.”

45. In view of the above, we are of the opinion that

there existed no useful purpose behind conducting the

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TIP. The TIP was a mere formality, and no value could

be attached to it. As the only evidence for convicting
the appellants is the evidence of the eye witnesses in
the TIP, and when the TIP is vitiated, the conviction
cannot be upheld. We will now examine the other
lapses while conducting the TIPs.

46. Re: Delay in conducting the TIP: Undue delay in

conducting a TIP has a serious bearing on the
credibility of the identification process. Though there is
no fixed timeline within which the TIP must be
conducted and the consequence of the delay would
depend upon the facts and circumstances of the case 42,
it is imperative to hold the TIP at the earliest. The
possibility of the TIP witnesses seeing the accused is
sufficient to cast doubt about their credibility. The
following decisions of this Court on the consequence of
delay in conducting TIP have emphasised that the
possibility of witnesses seeing the accused by itself can
be a decisive factor for rejecting the TIP. In Suresh
Chandra Bahri v. State of Bihar, it was held that:

“It is a matter of great importance both for the

investigating agency and for the accused and a fortiori
for the proper administration of justice that such
identification is held without avoidable and
unreasonable delay after the arrest of the accused and
that all the necessary precautions and safeguards were
effectively taken so that the investigation proceeds on
correct lines for punishing the real culprit. It is in
adopting this course alone that justice and fair play can
be assured both to the accused as well as to the
prosecution. But the position may be different when the
accused or a culprit who stands trial had been seen not
once but for quite a number of times at different point
of time and places which fact may do away with the
necessity of a TIP.”

47. In Budhsen & Anr. v. State of UP, this Court set

aside the conviction imposed on the appellant therein,
on the ground that no conviction can be based by solely
relying on the identification made in a TIP. While
holding that a 14-day delay by itself in conducting the
TIP may not cause prejudice to the accused, it
observed that there is a high chance of accused being
seen by the identifying witnesses outside the jail
premises. In Subash and Shiv Shankar v. State of U.P.,
this Court acquitted an accused on the ground that the

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TIP was held three weeks after the arrest was made.
This Court suspected that the delay in holding the TIP
could have enabled the identifying witnesses to see the
accused therein in the police lockup or in the jail
premises. In State of A.P. v. Dr M.V. Ramana Reddy and
Ors., this Court acquitted respondent nos. 2 and 3
therein on the ground that there was a delay of 10
days in conducting the TIP, and in those 10 days, there
was a high likelihood of their photographs being shown
to the witnesses. In Rajesh Govind Jagesha v. State of
Maharashtra, a delay of about one month was viewed
seriously by this Court since there was a possibility of
the accused being shown to the witnesses.

48. Returning to the facts of the present case, we have

already noted that Accused Nos. 116 were arrested on
13.07.2000. Instead of filing an application for
conducting a TIP at the earliest, the IO (PW84) filed a
remand application, pursuant to which the Accused
were remanded to police custody. There is strong
evidence that the Accused were shown to the witnesses
during their police custody period. The fact that an
application for conducting a TIP was filed on
23.07.2000, i.e., the very next day after the police
custody period ended, leads to the inevitable
conclusion that the Accused were taken into police
custody to facilitate their easy identification during the
TIP. Otherwise, we see no reason why an application
for conducting a TIP was not filed immediately after the
arrest of the Accused. In such circumstances, we firmly
believe that the delay in holding the TIP coupled with
other circumstances has cast a serious doubt on the
credibility of the TIP witnesses.

49. Re: Legality of the TIP and the presence of the IO

during the conduct of the TIP: A threejudge bench of
this Court in Chunthuram v. State of Chhattisgarh, by
relying on Ramkishan Mithanlal Sharma v. State of
Bombay, has held that any identification made by
witnesses in a TIP in the presence of a police officer
tantamount to statements made to the police officer
under Section 162 Cr.P.C. The Court held:

“The infirmities in the conduct of the test identification

parade would next bear scrutiny. The major flaw in the
exercise here was the presence of the police during the
exercise. When the identifications are held in police
presence, the resultant communications tantamount to

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statements made by the identifiers to a police officer in

course of investigation and they fall within the ban
of Section 162 of the Code.”

XX. That which can be deduced from the judgments relied upon

by the counsel for the State as well as learned counsel for the

accused is that the value to be attached to a test identification

parade depends on the facts and circumstances of each case and

no hard and fast rule can be laid down. The Court has to examine

the facts of the case to find out whether there was sufficient

opportunity for the witness to identify the accused. The Court has

also to rule out the possibility of accused having been shown to

the witness before holding a test identification parade. Where

there is an inordinate delay in holding a test identification parade,

the Court must adopt a cautious approach so as to prevent

miscarriage of justice. In cases of an inordinate delay, it may be

that the witness may forget the features of the accused put up for

identification in the test identification parade. This, however, is not

an absolute rule because it depends upon the facts of each case

and the opportunity which the witnesses had to notice the

features of the accused and the circumstances in which they had

seen the accused committing the offence. Where the witness had

only a fleeting glimpse of the accused at the time of occurrence,

delay in holding a test identification parade has to be viewed

seriously. Where, however, the Court is satisfied that the

witnesses had ample opportunity of seeing the accused and there

is no chance of mistaken identity, delay in holding the test

identification parade may not be held to be fatal. Further, the

witness should at the first instance must disclose some

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identification marks or disclose special features or attributes in

particular. It can also be deduced that the identification parades

belong to the investigating stage, they are generally held during

the course of investigation with the primary object of enabling the

witnesses to identify person concerned in the offence, who are not

previously known to them. This serves to satisfy the Investigating

Officers of the bonafide of the prosecution witnesses and also to

furnish the evidence to corroborate their testimony in Court.

Identification proceedings in their legal effect amounts simply to

this that certain persons are brought to jail or some other place

and make statement either express or implied that certain

individuals whom they point out are persons whom they recognize

as having been concerned in the crime. They do not constitute

substantive evidence. These parades are essentially governed by

Section 162 Cr.P.C. The test identification parade to be of value

should be held without much delay. The number of persons mixed

up with the accused should be reasonably large and their bearing

and general appearance not glaringly dissimilar. The Investigating

Officer or Police Personnel assisting him should not be present at

the time of test identification parade. The evidence as to

identification deserves to be subjective to a close and careful

scrutiny by the Courts.

D. PROSECUTION NOT BOUND TO PRODUCE EVERY

WITNESS:

I. Learned Additional Government Advocate has placed reliance

on Mohd. Khalid Versus State of West Bengal: (2002) 7 SCC 334

wherein it was held as under:

“14. Normally, the prosecution's duty is to examine all

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the eyewitnesses selection of whom has to be made

with due care, honestly and fairly. The witnesses have
to be selected with a view not to suppress any honest
opinion, and due care has to be taken that in selection
of witnesses, no adverse inference is drawn against the
prosecution. However, no general rule can be laid down
that each and every witness has to be examined even
though his testimony may or may not be material. The
most important factor for the prosecution being that all
those witnesses strengthening the case of the
prosecution have to be examined, the prosecution can
pick and choose the witnesses who are considered to
be relevant and material for the purpose of unfolding
the case of the prosecution. It is not the quantity but
the quality of the evidence that is important. In the
case at hand, if the prosecution felt that its case has
been well established through the witnesses examined,
it cannot be said that non-examination of some persons
rendered its version vulnerable.
15. As was observed by this Court in Habeeb
Mohammad v. State of Hyderabad
MANU/SC/0034/1953 : [1954]1SCR475 prosecution is
not bound to call a witness about whom there is a
reasonable ground for believing that he will not speak
the truth."

II. Reliance is also placed on Babu Versus State of MP:

MANU/MP/0187/1967 wherein the Court has held as under:

“14. The law does not provide a number of witnesses to

be examined in a particular case. One witness, if he is
reliable, is sufficient to prove any fact. It is the quality
that matters, not the quantity. In this connection
reference may be made to a decision reported in
Narayan v. State MANU/SC/0039/1958 : AIR 1959 SC
484 in which their lordships have observed that "it is
not that the prosecution is bound to call all the
witnesses who may have seen the occurrence and so
duplicate the evidence. No doubt material witnesses
have to be examined and in particular the witnesses
who unfold the story. The test whether a witness is
material in the case is not whether he may have given
evidence in support of the defence, but the test is
whether it is essential for unfolding of the narrative".

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III. The Court also referred to the judgment of the Supreme

Court in Masatali & Ors. Versus State: AIR 1965 SC 202 wherein

it was observed as under:

“It is undoubtedly the duty of the prosecution to

lay before the Court all material evidence available to it
which is necessary for unfolding its case; but it would
be unsound to lay a general rule that every witness
must be examined even though his evidence may not be
very material or even if it is known that he has been
won over or terrorized. In such a case it is always open
to the defence to examine such witnesses as their
witnesses and the Court can also call such witnesses in
the box in the interest of justice.”

IV. Learned Additional Government Advocate has also placed

reliance on Sarwan Singh & Ors. Versus State of Bihar: AIR 1976

SC 2304 wherein the Court has held as under:

“13. Another circumstance which appears to have

weighed heavily with the Additional Sessions Judge was
that no independent witness of Salabatpura had been
examined by the prosecution to prove the prosecution
case of assault on the deceased, all though the
evidence shows that there were some persons living in
that locality like the 'Pakodewalla', Hotelwalla,
shopkeeper and some of the passengers who had
alighted at Salabatpura with the deceased. The
Additional Sessions Judge has drawn an adverse
inference against the prosecution for its failure to
examine any of those witnesses. Mr. Hardy has adopted
this argument. In our opinion the comments of the
Additional Sessions Judge are based on serious
misconception of the correct legal position. The onus of
proving the prosecution case rests entirely on the
prosecution and it follows as a logical corollary that the
prosecution has complete liberty to choose its-
witnesses if it is to prove its case. The Court cannot
compel the prosecution to examine one witness or the
other as its witness. At the most, if a material witness
is withheld, the Court may draw an adverse inference
against the prosecution. But it, is not the law that the
omission to examine any and every witness even on
minor points would undoubtedly lead to rejection of the
prosecution case or drawing of an adverse inference

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against the prosecution. The law is well settled that the

prosecution is bound to produce only such witnesses as
are essential for unfolding of the prosecution narrative.
In other words, before an adverse inference against the
prosecution can be drawn it must be proved to the
satisfaction of the Court that the witnesses who had
been withheld were eye-witnesses who had actually
seen the occurrence and were therefore material to
prove the case. It is not necessary for the prosecution
to multiply witnesses after witnesses on the same
point; it is the quality rather than the quantity of the
evidence that matters. In the instant case, the
evidence of the eye-witnesses does not suffer from any
infirmity or any manifest defect on its intrinsic merit.
Secondly, there is nothing to show that at the time
when the deceased was assaulted a large crowd bad
gathered and some of the members of the crowd had
actually seen the occurrence and were cited as
witnesses for the prosecution and then withheld. We
must not forget that in our country there is a general
tendency amongst the witnesses in mofussil to shun
giving evidence in Courts because of the cumbersome
and dilatory procedure of our Courts, the harassment
to which they are subjected by the police and the
searching cross-examination which they have to face
before the Courts. Therefore nobody wants to be a
witness in a murder or in any serious offence if he can
avoid it. Although the evidence does show that four or
five persons had alighted from the bus at the time
when the deceased and his companions got down from
the bus, yet there is no suggestion that any of those
persons stayed on to witness the occurrence. They may
have proceeded to their village homes. So far as
Pakodewalla and Hotelwalla etc. are concerned there is
positive evidence to show that they were interrogated
by the police but they expressed ignorance about the
occurrence. In this connection the evidence of P.W. 5
Harnek Singh clearly shows that the Investigating
Officer interrogated the Hotelwalla and the Pakodewalla
but they stated before him that they had not witnessed
the occurrence. In these circumstances, therefore,
there was no obligation on the prosecution to examine
such witnesses who were not at all material. It is not a
case where some persons were cited as eye-witnesses
by the prosecution on material points and were
deliberately withheld from the Court. For these
reasons, therefore, the learned Additional Sessions
Judge was not at all justified in raising an adverse

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inference against the prosecution case from this fact

and the High Court was right in rejecting this part of
the reasoning adopted by the learned Additional
Sessions Judge.”

V. Reliance is also placed on Gulam Sarbar Versus State of

Bihar: (2014) 3 SCC 401 wherein it was held as under:

“14. In the matter of appreciation of evidence of

witnesses, it is not the number of witnesses but quality
of their evidence which is important, as there is no
requirement under the Law of Evidence that any
particular number of witnesses is to be examined to
prove/disprove a fact. It is a time- honoured principle
that evidence must be weighed and not counted. The
test is whether the evidence has a ring of truth, is
cogent, credible and trustworthy or otherwise. The legal
system has laid emphasis on value provided by each
witness, rather than the multiplicity or plurality of
witnesses. It is quality and not quantity, which
determines the adequacy of evidence as has been
provided by Section 134 of the Evidence Act. Even in
Probate cases, where the law requires the examination
of at least one attesting witness, it has been held that
production of more witnesses does not carry any
weight. Thus, conviction can even be based on the
testimony of a sole eye witness, if the same inspires
confidence. (Vide: Vadivelu Thevar and Anr. v. State of
Madras MANU/SC/0039/1957 : AIR 1957 SC 614; Kunju
@ Balachandran v. State of Tamil Nadu
MANU/SC/7065/2008 : AIR 2008 SC 1381; Bipin Kumar
Mondal v. State of West Bengal MANU/SC/0509/2010 :
AIR 2010 SC 3638; Mahesh and Anr. v. State of Madhya
Pradesh MANU/SC/1125/2011 : (2011) 9 SCC 626;
Prithipal Singh and Ors. v. State of Punjab and Anr.
MANU/SC/1292/2011 : (2012) 1 SCC 10; and Kishan
Chand v. State of Haryana MANU/SC/1120/2012 : JT
2013 (1) SC 222).”

VI. Contra, it is argued by the counsel for the accused that non-

production of material witnesses has a serious impact on the

prosecution case and adverse inference should be drawn due to

the above. In this regard, reliance is placed on Habeeb

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Mohammad Versus State of Hyderabad: AIR 1954 SC 51 wherein

it has been held as under:

“In a long series of decisions the view taken in India

was, as was expressed by Jenkins C.J. in Ram Ranjan
Roy v. Emperor I.L.R. 43 Cal. 422, that the purpose of a
criminal trial is not to support at all costs a theory but
to investigate the offence and to determine the guilt or
innocence of the accused and the duty of a public
prosecutor is to represent not the police but the Crown,
and this duty should be discharged fairly and fearlessly
with full sense of the responsibility attaching to his
position and that he should in a capital case place
before the court the testimony of all the available eye-
witnesses, though brought to the court by the defense
and though they give different accounts, and that the
rule is not a technical one, but founded on common
sense and humanity. This view so widely expressed was
not fully accepted by their Lordships of the Privy Council
in Stephen Senaviratne v. The King A.I.R. 1936 P.C.
289., that came from Ceylon, but at the same time their
Lordships affirmed the preposition that it was the duty
of the prosecution to examine all material witnesses
who could give an account of the narrative of the events
on which the prosecution is essentially based and that
the question depended on the circumstances of each
case. In our opinion, the appellant was considerably
prejudiced by the omission on the part of the
prosecution to examine Biabani and the other officer in
the circumstances of this case and his conviction merely
based on the testimony of the police jamedar, in the
absence of Biabani and other witnesses admitted
present on the scene, cannot be said to have been
arrived at after a fair trial, particularly when no
satisfactory explanation has been given or even
attempted for this omission.”

VII. Reliance is also placed on State of U.P. Versus Punni & Ors.:

(2008) 11 SCC 153 wherein placing reliance on Habeeb

Mohammad (supra), it was held by the Apex Court that witnesses

essential to the unfolding of the narrative on which the

prosecution is based, must, of course, be called by the

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prosecution, whether in the result the effect of their testimony is

for or against the case for the prosecution.

VIII. Reliance is also placed on State of U.P. & Ors. Versus Jaggo

& Ors.: (1971) 2 SCC 42 wherein similar view was expressed by

the High Court placing reliance on Habeeb Mohammad (supra).

Reliance is also placed on Sri Rabindra Kumar Dey Versus State of

Orissa: (1976) 4 SCC 233 wherein it was held as under:

“36. There is yet another very important document

which has been brought on record by the appellant
which is Ext. A dated December 8, 1965. This is a
statement by P.W. 3 which to a very great extent
supports the case of the accused, but as we do not
propose to rely on the evidence of P.W. 3, we would
exclude this document from consideration. Another
document Ext, H is a statement of the Accountant
Ghansham Das which appears at p. 215 of the Paper
Book wherein Mr. Ghansham Das clearly mentions that
when he found that Rs. 10,000/- were not traceable, he
brought the matter to the notice of the officer in charge
and he was told by the Nazir that the amount of Rs.
10,000/- had been left with him by the appellant with
instructions not to refund in the treasury. This
statement clinches the issue so far as the defence case
is concerned and fully proves that the explanation given
by the appellant was correct. This document would also
have falsified the evidence of P.W. 1 who has tried to
put the entire blame on the shoulders of the appellant.
Unfortunately, however, the prosecution did not choose
to examine Ghansham Das the Accountant who was a
very material witness in order to unfold the prosecution
narrative itself, because once a reasonable explanation
is given by the appellant that he had entrusted the
money to the Nazir on his return from Balichandrapur
on January 20, 1965 which is supported by one of the
prosecution witnesses, P.W. 9, as referred to above,
then it was for the prosecution to have affirmatively
disproved the truth of that explanation. If Ghansham
Das would have been examined as a witness for the
prosecution, he might have thrown a flood of light on
the question. In his absence, however, Ext. H cannot be
relied upon, because the document is inadmissible. At
any rate, the Court is entitled to draw an inference

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adverse to the prosecution for not examining Ghansham

Das Accountant as a result of which the explanation
given by the appellant is not only reasonable but stands
unrebutted by the prosecution evidence produced
before the Trial Court.”

IX. Reliance is also placed on State of Maharashtra Versus

Suleman Sultan Mujawar: 2020 SCC Online Bom 10595 wherein

it has been held as under:

“Interestingly and which is the main dent in the case of

prosecution is that the Investigating Officer was never
examined. Illustration (g) of Section 114 of the Indian
Evidence Act, 1872 provides the Court may presume
that evidence which could be and is not produced
would, if produced be, unfavourable to the person who
withholds it. The fact that the Investigating Officer also
has not been examined would show that if examined,
his evidence would have been unfavourable to
complainant. Non examining the Investigating Officer as
a witness in the circumstances of the case would have
caused grave prejudice to accused. The Apex Court in
Habeeb Mohammad V/s. The State of Hyderabad1
observed that it was the bounden duty of the
prosecution to examine the Investigating Officer, who is
a material witness in the case particularly when no
allegation was made that if produced, he would not
speak the truth and in any case, the Court would have
been well advised to exercise its discretionary powers to
examine the witness.”

X. The law which can be deduced from the judgments referred

herein-above is that though it is not necessary for the prosecution

to produce all witnesses, but it is necessary for the prosecution to

produce the witnesses essential to the unfolding of the narrative

on which the prosecution is based, whether in the result the effect

of their testimony is for or against the prosecution. Non-

production of material witnesses may compel the Court to draw

adverse inference against the prosecution. As to who is a material

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witness, it is for the Court to ascertain looking to the facts and

circumstances of that particular case.

E. CRIMINAL CONSPIRACY:

I. Reliance is placed on Firozudeen Basheerudin & Ors. Versus

State of Kerala: (2001) 7 SCC 596 wherein it was held as under:

“23. Like most crimes, conspiracy requires an act (actus

reus) and an accompanying mental state (mens rea).
The agreement constitutes the act, and the intention to
achieve the unlawful objective of that agreement
constitutes the required mental state. In the face of
modern organised crime, complex business
arrangements in restraint of trade, and subversive
political activity, conspiracy law has witnessed
expansion in many forms. Conspiracy criminalizes an
agreement to commit a crime. All conspirators are liable
for crimes committed in furtherance of the conspiracy
by any member of the group, regardless of whether
liability would be established by the law of complicity. To
put it differently, the law punishes conduct that
threatens to produce the harm, as well as conduct that
has actually produced it. Contrary to the usual rule that
an attempt to commit a crime merges with the
completed offense, conspirators may be tried and
punished for both the conspiracy and the completed
crime. The rationale of conspiracy is that the required
objective manifestation of disposition to criminality is
provided by the act of agreement. Conspiracy is a
clandestine activity. Persons generally do not form
illegal covenants openly. In the interests of security, a
person may carry out his part of a conspiracy without
even being informed of the identify of his co-
conspirators. Since an agreement of this kind can rarely
be shown by direct proof, it must be inferred from
circumstantial evidence of co-operation between the
accused. What people do is, of course, evidence of what
lies in their minds. To convict a person of conspiracy,
the prosecution must show that he agreed with others
that together they would accomplish the unlawful object
of the conspiracy.
25. Conspiracy is not only a substantive crime. It also
serves as a basis for holding one person liable for the
crimes of others in cases where application of the usual
doctrines of complicity would not render that person
liable. Thus, one who enters into a conspiratorial

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relationship is liable for every reasonably foreseeable

crime committed by every other member of the
conspiracy in furtherance of its objectives, whether or
not he knew of the crimes or aided in their commission.
The rationale is that criminal acts done in furtherance of
a conspiracy may be sufficiently dependent upon the
encouragement and support of the group as a whole to
warrant treating each member as a casual agent to each
act. Under this view, which of the conspirators
committed the substantive offence would be less
significant in determining the defendant's liability than
the fact that the crime was performed as a part of a
larger division of labor to which the accused had also
contributed his efforts.
26. Regarding admissibility of evidence, loosened
standards prevail in a conspiracy trial. Contrary to the
usual rule, in conspiracy prosecutions an declaration by
one conspirator, made in furtherance of a conspiracy
and during its pendency, is admissible against each co-
conspirator. Despite the unreliability of hearsay
evidence, it is admissible in conspiracy prosecutions.
Explaining this rule, Judge Hand said:
"Such declarations are admitted upon no doctrine
of the law of evidence, but of the substantive law of
crime. When men enter into an agreement for an
unlawful end, they become ad hoc agents for one
another, and have made 'a partnership in crime'. What
one does pursuant to their common purpose, all do, and
as declarations may be such acts, they are competent
against all (Van Riper v. United States 13 F.2d 961, 967,
(2d Cir. 1926). "
27. Thus conspirators are liable on an agency theory for
statements of co-conspirators, just as they are for the
overt acts and crimes committed by their confreres.”

II. Reliance is also placed on State of Maharashtra Versus

Somnath Thapa & Ors.: (1996) 4 SCC 659 wherein the Court has

held as under:

“23. Our attention is pointedly invited by Shri Tulsi to

what was stated in para 24 of Ajay Aggarwal's case
wherein Ramaswamy, J. stated that the law has
developed several or different models or technique to
broach the scope of conspiracy. One such model is that
of a chain, where each party performs even without
knowledge of the other, a role that aids succeeding

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parties in accomplishing the criminal objectives of the

conspiracy. The illustration given was what is done in
the process of procuring and distributing narcotics or an
illegal foreign drug for sale in different parts of the
globe. In such a case, smugglers, middlemen, retailers
are privies to a single conspiracy to smuggle and
distribute narcotics. The smugglers know that the
middlemen must sell to retailers; and the retailers know
that the middlemen must buy from importers. Thus the
conspirators at one end at the chain know that the
unlawful business would not, and could not, stop with
their buyers, and those at the other end know that it
had not begun with their settlers. The action of each has
to be considered as a spoke in the hub - there being a
rim to bind all the spokes together in a single
conspiracy.
24. The aforesaid decisions, weighty as they are, lead
us to conclude that to establish a charge of conspiracy
knowledge about indulgence in either an illegal act or a
legal act by illegal means is necessary. In some cases,
intent of unlawful use being made of the goods or
services in question may be inferred from the
knowledge itself. This apart, the prosecution has not to
establish that a particular unlawful use was intended, so
long as the goods or service in question could not be
put to any lawful use. Finally, when the ultimate offence
consists of a chain of actions, it would not be necessary
for the prosecution to establish, to bring home the
charge of conspiracy, that each of the conspirators had
the knowledge of what the collaborator would do, so
long as it is known that the collaborator would put the
goods or service to an unlawful use.”

III. Reliance is also placed on Mohammad Usman Mohammad

Hussain Maniyar & Ors. Versus State of Maharashtra: (1981) 2

SCC 443 wherein it has been held as under:

“17. Now to turn to the conviction under Section 120B

of the Penal Code. Section 120B provides:
120B. (1) Whoever is a party to a criminal conspiracy to
commit an offence punishable.… 'Criminal conspiracy'
has been defined under Section 120A of the Penal Code
as follows:
120 A. When two or more persons agree to do, or cause
to be done-(1) an illegal act, or
(2) an act which is not illegal by illegal means,

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such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some fact besides the agreement is done by one
or more parties to such agreement in pursuance
thereof.
Explanation- It is immaterial whether the illegal act is
the ultimate object of such agreement, or is merely
incidental to that object,
The contention of learned Counsel is that there is
no evidence of agreement of the appellants to do an
illegal act.
It is true that there is no evidence of any express
agreement between the appellants to do or cause to be
done the illegal act. For an offence under Section 120B,
the prosecution need not necessarily prove that the
perpetrators expressly agreed to do or cause to be done
the illegal act; the agreement may be proved by
necessary implication. In this case, the fact that the
appellants were possessing and selling explosive
substances without a valid licence for a pretty long time
leads to the inference that they agreed to do and/or
cause to be done the said illegal act, for, without such
an agreement the act could not have been done for
such a long time.”

IV. Reliance is next placed on Chamanlal & Ors. Versus State of

Punjab & Anr.: (2009) 11 SCC 721 wherein the elements of

criminal conspiracy was explained as under:

“The elements of a criminal conspiracy have been stated

to be: (a) an object to be accomplished, (b) a plan or
scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or
more of the accused persons whereby, they become
definitely committed to cooperate for the
accomplishment of the object by the means embodied in
the agreement, or by any effectual means, and (d) in
the jurisdiction where the statute required an overt act.
The essence of a criminal conspiracy is the unlawful
combination and ordinarily the offence is complete when
the combination is framed. From this, it necessarily
follows that unless the statute so requires, no overt act
need be done in furtherance of the conspiracy, and that
the object of the combination need not be
accomplished, in order to constitute an indictable

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offence. Law making conspiracy a crime, is designed to

curb immoderate power to do mischief which is gained
by a combination of the means. The encouragement and
support which co-conspirators give to one another
rendering enterprises possible which, if left to individual
effort, would have been impossible, furnish the ground
for visiting conspirators and abettors with condign
punishment. The conspiracy is held to be continued and
renewed as to all its members wherever and whenever
any member of the conspiracy acts in furtherance of the
common design. (See American Jurisprudence, Vol. II,
Section 23, p. 559.) For an offence punishable under
Section 120B, the prosecution need not necessarily
prove that the perpetrators expressly agreed to do or
caused to be done an illegal act; the agreement may be
proved by necessary implication. The offence of criminal
conspiracy has its foundation in an agreement to
commit an offence. A conspiracy consists not merely in
the intention of two or more, but in the agreement of
two or more to do an unlawful act by unlawful means.
So long as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect, the
very plot is an act in itself, and an act of each of the
parties, promise against promise, actus contra actum,
capable of being enforced, if lawful, punishable if for a
criminal object or for use of criminal means.”

V. On the other hand, learned counsel appearing for the

accused has placed reliance on Kehar Singh & Ors. Versus State

(Delhi Administration): (1988) 3 SCC 609 wherein it was held as

under:

“274. It will be thus seen that the most important

ingredient of the offence of conspiracy is the agreement
between two or more persons to do an illegal act. The
illegal act may or may not be done in pursuance of
agreement, but the very agreement is an offence and is
punishable. Reference to secs. 120-A and 120-BIPC
would make these aspects clear beyond doubt. Entering
into an agreement by two or more persons to do an
illegal act or legal act by illegal means is the very
quintessence of the offence of conspiracy.

275. Generally, a conspiracy is hatched in secrecy and it

may be difficult to adduce direct evidence of the same.
The prosecution will often rely on evidence of acts of

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various parties to infer that they were done in reference

to their common intention. The prosecution will also
more often rely upon circumstantial evidence. The
conspiracy can be undoubtedly proved by such evidence
direct or circumstantial. But the Court must enquire
whether the two persons are independently pursuing
the same and or they have come together to the pursuit
of the unlawful object. The former does not render them
conspirators, but the latter is. It is, however, essential
that the offence of conspiracy requires some kind of
physical manifestation of agreement. The express
agreement, however, need not be proved. Nor actual
meeting of two persons is necessary. Nor it is necessary
to prove the actual words of communication. The
evidence as to transmission of thoughts sharing the
unlawful design may be sufficient.Gerald Orchard of
University of Canterbury, New Zealand 1974 C L R 297
explains the limited nature of this proposition:
Although it is not in doubt that the offence
requires some physical manifestation of agreement, it is
important to note the limited nature of this proposition.
The law does not require that the act of agreement take
any particular form and the fact of agreement may be
communicated by words or conduct. Thus, it has been
said that it is unnecessary to prove that the parties
"actually came together' and agreed in terms" to pursue
the unlawful object; there need ever have been an
express verbal agreement, it being sufficient that there
was "a tacit understanding between conspirators as to
what should be done.
276. I share this opinion, but hasten to add that the
relative acts or conduct of the parties must be
conscientious and clear to mark their concurrence as to
what should be done. The concurrence cannot be
inferred by a group of irrelevant facts artfully arranged
so as to give an appearance of coherence. The
innocuous, innocent or inadvertent events and incidents
should not enter the judicial verdict. We must thus be
strictly on our guard.”

VI. Reliance is also placed on State of Kerela Versus P. Sugathan

& Ors.: (2000) 8 SCC 203 wherein it has been held by the Court

as under:

“12. We are aware of the fact that direct independent

evidence of criminal conspiracy is generally not available

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and its existence is a matter of inference. The

inferences are normally deduced from acts of parties in
pursuance of purpose in common between the
conspirators. This Court in V.C. Shukla v. State
MANU/SC/0545/1980 : (1980)2SCC665 held that to
prove criminal conspiracy there must be evidence direct
or circumstantial to show that there was an agreement
between two or more persons to commit an offence.
There must be a meeting of minds resulting in ultimate
decision taken by the conspirators regarding the
commission of an offence and where the factum of
conspiracy is sought to be inferred from circumstances,
the prosecution has to show that the circumstances
giving rise to a conclusive or irresistible inference of an
agreement between the two or more persons to commit
an offence. As in all other criminal offences, the
prosecution has to discharge its onus of proving the
case against the accused beyond reasonable doubt. The
circumstances in a case, when taken together on their
face value, should indicate the meeting of the minds
between the conspirators for the intended object of
committing an illegal act or an act which is not illegal,
by illegal means. A few bits here and a few bits there on
which the prosecution relies cannot be held to be
adequate for connecting the accused with the
commission of the crime of criminal conspiracy. It has to
be shown that all means adopted and illegal acts done
were in furtherance of the object of conspiracy hatched.
The circumstances relied for the purposes of drawing an
inference should be prior in time than the actual
commission of the offence in furtherance of the alleged
conspiracy.”

VII. Reliance is also placed on P.K. Narayan Versus State of

Kerela: (1995) 1 SCC 142 wherein it was held as under:

“10. The ingredients of this offence are that there

should be an agreement between the persons who are
alleged to conspire and the said agreement should be
for doing of an illegal act or for doing by illegal means
an act which by itself may not be illegal. Therefore the
essence of criminal conspiracy is an agreement to do an
illegal act and such an agreement can be proved either
by direct evidence or by circumstantial evidence or by
both and it is a matter of common experience that
direct evidence to prove conspiracy is rarely available.
Therefore the circumstances proved before, during and

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after the occurrence have to be considered to decide

about the complicity of the accused. But if those
circumstances are compatible also with the innocence of
the accused persons then it can not be held that the
prosecution has successfully established its case. Even if
some acts are proved to have been committed it must
be clear that they were so committed in pursuance of an
agreement made between the accused who were parties
to the alleged conspiracy. Inferences from such proved
circumstances regarding the guilt may be drawn only
when such circumstances are incapable of any other
reasonable explanation. From the above discussion it
can be seen that some of the circumstances relied upon
by the prosecution are not established by cogent and
reliable evidence. Even otherwise it can not be said that
those circumstances are incapable of any other
reasonable interpretation.”

VIII. Reliance is further placed on Central Bureau of Investigation,

Hyderabad Versus K. Narayana Rao: (2012) 9 SCC 512 wherein

it has been held as under:

20. The ingredients of the offence of criminal conspiracy

are that there should be an agreement between the
persons who are alleged to conspire and the said
agreement should be for doing of an illegal act or for
doing, by illegal means, an act which by itself may not
be illegal. In other words, the essence of criminal
conspiracy is an agreement to do an illegal act and such
an agreement can be proved either by direct evidence
or by circumstantial evidence or by both and in a matter
of common experience that direct evidence to prove
conspiracy is rarely available. Accordingly, the
circumstances proved before and after the occurrence
have to be considered to decide about the complicity of
the accused. Even if some acts are proved to have
committed, it must be clear that they were so
committed in pursuance of an agreement made between
the accused persons who were parties to the alleged
conspiracy. Inferences from such proved circumstances
regarding the guilt may be drawn only when such
circumstances are incapable of any other reasonable
explanation. In other words, an offence of conspiracy
cannot be deemed to have been established on mere
suspicion and surmises or inference which are not
supported by cogent and acceptable evidence.”

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IX. Further, reliance is placed on State Versus Mohd. Afzal &

Ors.: 2003 SCC Online Del 935 wherein it has been held as

under:

211. A conspiracy is a march under a banner. The very

agreement, concert or league is the ingredient, of the
offence like most crimes, conspiracy requires an act
(actus reus) and an accompanying mental State (mens
rea). From the definition of conspiracy in Section 120-A,
it is evident that the agreement constitutes the act and
the intention to achieve unlawful object constitutes the
mental State . All conspirators are liable for the crimes
committed in furtherance of the conspiracy besides
being liable for committing an offence of conspiracy
itself. Pertaining to conspiracy, law punishes conduct
that threats to produce the harm as well as the conduct
that actually produces the harm. In this, lies the
difference between the offence of conspiracy and
general penal offences. In case of general offences,
attempt to commit a crime merges when the crime is
completed but in case of conspiracy, punishment is for
both, the conspiracy and the completed crime. This
distinctiveness of the offence of conspiracy makes all
conspirators as agents of each other. Conspiracy,
Therefore, criminalizes the agreement to commit a
crime. Inherently, conspiracy is a clandestine activity.
Its covenants are not formed openly. It has to be
inferred from circumstantial evidence of co-operation.
212. If conspiracies are hatched in the darkness of
secrecy and direct evidence is seldom forthcoming and
if the offence is to be proved in relation to the acts,
deeds or things done by the co-conspirators, the
question would arise as to what is the nature of these
acts, deeds or things. Is merely moving around together
or seen in each other's company sufficient? If not, what
more should be there from which it could be inferred
that the conspirators were acting to achieve the desired
offence in furtherance of a crime.
213. A charge of conspiracy, inherently causes prejudice
to an accused because it forces him into a joint trial and
the entire mass of evidence against all the accused
persons is presented for consideration of the court. This
prejudice may get compounded when prosecutors seek
to sweep within the dragnet of conspiracy all those, who
have been associated in any degree whatsoever with

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the main offenders. But the prosecution also has a

difficulty at hand. It is difficult for it to trace the exact
contribution of each member of a conspiracy besides,
direct evidence is seldom forthcoming. In the judgment
MANU/SC/0451/1996: 1996CriLJ2448, State of
Maharashtra and Ors. v. Som Nath Thapa and Ors., the
Hon'ble Supreme Court illuminating on this grey area,
observed that for a person to conspire with another, he
must have knowledge of what the co-conspirators were
wanting to achieve and thereafter having the intent to
further the illegal act takes recourse to a course of
conduct to achieve the illegal end or faciliState its
accomplishment. Except for extreme cases, intent could
be inferred from knowledge for example whether a
person was found in possession of an offending article,
no legitimate use of which could be done by the
offender. To illustrate, a person is found in possession of
100 Kg. of RDX, is proved to be visiting or visited by "A"
against whom there is a charge of conspiring to blow up
a public place. Here, the recovery of the offending
article would be enough to infer a charge of conspiracy.
However, such instances apart, it was held that law
would require something more. This something more
would be a step from knowledge to intent. This was to
be evidenced from informed and interested cooperation,
simulation and instigation. The following passage from
People v. Lauria 251, California APP 2 (d) 471 was cited.
"All articles of commerce may be put to illegal ends, but
all do not have inherently the same susceptibility to
harmful and illegal use....This different is important for
two purposes. One is for making certain that the seller
knows the buyer's intended illegal use. The other is to
show that by the same he intends to further promote
and cooperate in it. This intent, when given effect by
overt act, is the gist of conspiracy. While it is not
identical with mere knowledge that another proposes
unlawful action, it is not unrelated to such knowledge.…
The step from knowledge to intent and agreement may
be taken. There is more than suspicion, more than
knowledge, acquiescence, carelessness, indifferent, lack
of concern. There is informed and interested
cooperation, simulation, instigation."
214. Thus, the proof of offence of conspiracy would
require in most cases some kind of physical
manifestation of agreement. The physical
manifestations may not be proved by overt acts but
may be evidenced by conscience acts or conduct of
parties and reasonably clear to mark their concurrence.

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Where evidence is clear, offence of conspiracy may be

proved by necessary implications. Innocuous, innocent
or inadvertent acts and events should not enter the
judicial verdict. The court must be cautious not to infer
agreement from a group of irrelevant facts carefully
arranged so as to give an assurance of coherence. Since
more often than not conspiracy would be proved on
circumstantial evidence, four fundamental requirements
as laid down as far back as in 1881 in the judgment
reported 60 years later at the suggestion of Rt. Hon'ble
Sir Tej Bahadur Sapru 1941 All ALJR 416, Queen
Empress v. Hoshhak may be re-emphasised:-
1. that the circumstances from which the conclusion is
drawn be fully established;
2. that all the facts should be consistent with the
hypothesis;
3. that the circumstances should be of a conclusive
nature and tendency;
4. that the circumstances should, by a moral certainty,
actually exclude every hypothesis but the one proposed
to be proved.”

30. From the judgments referred to herein-above, it is evident

that to bring home the offence of criminal conspiracy, there must

be a meeting of minds resulting in ultimate decision taken by the

conspirators regarding the commission of an offence and when the

factum of conspiracy is sought to be inferred from circumstances,

the prosecution has to show that the circumstances give rise to a

conclusive or irresistible inference of an agreement between two

or more persons to commit an offence. The prosecution has to

discharge its onus of proving the case against the accused beyond

reasonable doubt. The circumstances when taken together on

their face value should indicate the meeting of the minds between

conspirators for they intended object of committing an illegal act.

It can also be inferred from the judgments cited by the parties

that a few bits here and a few bits there on which the prosecution

relies cannot be held to be adequate for connecting the accused

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with the commission of the crime of criminal conspiracy. It has to

be shown that the means adopted and illegal acts done were in

furtherance of the object of the conspiracy hatched. The

circumstances relied for the purpose of drawing an inference

should be prior in time than the actual commission of offence in

furtherance of the alleged conspiracy. It is also inferred from the

perusal of the judgments cited at bar that conspiracy is a

continuing offence, which continues to subsist till it is executed

and during its subsistence whenever anyone of the conspirators

does an act or series of act, he should be held guilty under Section

120B of the Indian Penal Code.

31. Point No.1- Whether on 13.05.2008 at Sanganeri Gate near

Hanuman Temple, Jaipur City, Police Station Manak Chowk, a blast

took place in which 17 persons died and 36 persons were injured?

32. It is not disputed by the counsels appearing for the parties

that a blast did take place at Sanganeri Gate near Hanuman

Mandir, Jaipur. The fact that 17 persons died and 36 injured is

established before the trial Court and no objection has been raised

to the said finding drawn by the trial Court. We are, therefore, not

inclined to take up this issue. It is thus established that a blast

took place on 13.05.2008 near Sanganeri Gate Hanuman Mandir

wherein 17 persons died and 36 were injured.

33. Point No.2-Whether Shahbaz sent the mail from Sahibabad

and is a co-conspirator?

34. The State has challenged the acquittal of accused Shahbaz.

It is contended by learned Additional Government Advocate that

the incident i.e. Jaipur Bomb Blasts took place on 13.05.2008. An

email was received by two newspaper agencies on 14.05.2008

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wherein the responsibility of causing the bomb blasts was taken

up by Indian Mujaheedeen. With the attachments, which were

made part of the email, a photograph of cycle bearing frame

No.129489 was also received. The same cycle with the same

frame number was found involved in one of the blast sites, which

goes to show that the person, who had sent the mail was also a

co-conspirator in the Jaipur Bomb Blasts case.

35. It is contended that from the IP Address, the police on the

same day i.e. on 14th May, 2008 came to know that the email has

been sent from Sahibabad and the IP Address belonged to

Madhukar Mishra. The police immediately went to the Cyber Cafe

belonging to Madhukar Mishra. The CPU was seized and after

arrest of Shahbaz, he was subjected to test identification parade,

in which Madhukar Mishra identified Shahbaz. Madhukar Mishra

also identified Shahbaz in the court proceedings. Thus, the fact

that the mail was sent by Shahbaz was proved before the Court. It

is argued that the person, who has sent the mail, was part of the

conspiracy as he was knowing about the Jaipur Bomb Blasts.

36. Learned counsel appearing for accused Shahbaz has opposed

the appeal. It is contended that the learned trial Court has

discussed the entire evidence and has come to the conclusion that

Shahbaz was not involved in the Jaipur Bomb Blasts. He was not

having any connection with the accused named in the Jaipur Bomb

Blasts. It was not established that he was having any links with

SIMI or Indian Mujaheedeen Organization and no incriminating

material was seized from him. It is argued by the counsel that

Shahbaz was picked from his house by ATS. He had a function at

his house on account of birth of his child. It is also contended that

the Police has falsely implicated him in this case. It is also argued

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that the test identification parade was not conducted properly as

Shahbaz was shown to Madhukar Mishra prior to the test

identification parade. In this regard, our attention has been drawn

to various documents produced by the prosecution.

37. It is contended that an application for test identification

parade was moved before the Magistrate on 02.09.2008 in which

the Magistrate posted the matter on 03.09.2008 at 03:00 PM in

the jail premises. It is also contended that Madhukar Mishra was

residing at a distance of 400 kms and so it was not possible for

him to come to Jaipur after the notices were served upon him. Our

attention has also been drawn to the notices, which were sent to

Madhukar Mishra. From the service report, it is evident that the

notices were issued on 02.09.2008 and were served upon

Madhukar Mishra on the same day i.e. 02.09.2008. He appeared

in the jail on the very next day i.e. 03.09.2008, it is evident that

Madhukar Mishra was in Jaipur itself during the period when

Shahbaz was taken in the police custody. It is also evident that

Shahbaz was in police custody and during the police custody,

application was moved for test identification parade. Shahbaz was

deposited in the jail on 03.09.2008 itself and on that day itself,

test identification parade was conducted. It is the case of defence

that Shahbaz has appeared as defence witness and he has stated

that while he was in the custody of ATS/SOG, a boy wearing

maroon coloured clothes and a cap came to the place where he

was kept by the ATS. He has also stated that when the test

identification parade was conducted, the same boy wearing the

same maroon coloured clothes came to identify him. It is also

contended that the test identification parade looses its value since

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there is a specific allegation that the accused Shahbaz was shown

to the witness.

38. It is contended that Madhukar Mishra has not mentioned

about any specific features of Shahbaz so as to identify him in jail.

It is also contended that the email as per Madhukar Mishra was

sent on 14.05.2008 and the identification parade took place on

03.09.2008 i.e. after 3 months and 20 days. It is further

contended that Shahbaz was having a cut mark on his eyebrow

and it was not concealed. Thus, the test identification parade

looses its credibility. It is also contended that as per the

prosecution case, some sketches were got prepared from

Madhukar Mishra, but the same were not produced before the

Court to establish that Shahbaz had any resemblance with the

sketches, which goes to show that the sketches must not be

matching with that of Madhukar Mishra and that is why they were

not produced before the Court.

39. It is contended that the original CPU on which the CDs were

written and then from which it was transferred to another

computer from where it is said to have been sent to the

newspaper agencies, was not seized by the Police. It is also

contended that the register in which entry of persons coming to

the Cyber Cafe was maintained, was also not seized by the Police

to establish that Shahbaz visited the Cyber Cafe on 14.05.2008. It

is further contended that there is no evidence to the effect that

the CDs were sent to Shahbaz. It is also not proved as to who

sent the CD to Shahbaz. It is further contended that from the

evidence of Investigating Officers, it is clear that there is no

material to connect Shahbaz with the other co-accused. No

material whatsoever has been recovered to suggest that Shahbaz

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was having any connections with the banned Organizations. There

is no record that he has ever sent any incriminating material to

other persons to propagate hatred or wage war against the

country.

40. It is contended that Shahbaz was having his exams in the

month of May itself and he cleared his B.Tech. with first division.

He was employed and a missing person report was also filed by

his employer, when he was secretly picked up by the ATS and

taken to Jaipur. It is also contended that accused Shahbaz moved

an application to the Court to subject himself to lie detector test,

which was opposed by the State for the reasons best known to the

prosecuting agency. It is further contended that truth would have

surfaced, if Shahbaz would have been subjected to lie detector

test and State i.e. the prosecution agency purposely opposed the

application as it was known to them that Shahbaz had no

connection whatsoever with the email, which is said to have been

sent from Cyber Cafe belonging to Madhukar Mishra. It is also

contended that no information has been given by Shahbaz under

Section 27 of the Evidence Act and no recovery has been made

from him, which would connect Shahbaz with the Jaipur Bomb

Blast cases. It is further contended that the Investigating Officers

have admitted in their cross-examination that they could not find

any material, which would link Shahbaz with the other co-accused

in these cases.

41. We have considered the contentions and have carefully

perused the evidence on record with regard to accused-Shahbaz.

42. The main CPU on which the CDs were written and from which

it was transferred to the other CPU from which it was mailed, has

not been seized to establish that the same was sent from the

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Cyber Cafe belonging to Madhukar Mishra. The absence of

Madhukar Mishra at the time when the CPU was seized also raises

doubt for the very reason that the Officer, who went to seize the

CPU, has stated that Madhukar Mishra was not present at that

time and in his presence, father of Madhukar Mishra talked to

Madhukar Mishra on mobile and after inquiring from him, handed-

over a CPU to the Seizing Officer. The Seizing Officer did not even

talked directly to Madhukar Mishra to inquire about the CPU, which

was used to load the contents of the CD and from which it was

transferred to another CPU. The absence of Madhukar Mishra and

his going away to his parental home also appears to be a made up

story. As the mail was the first link to the bomb blasts, the Police

could have waited to question him about the person who had sent

the mail and would have seized the original CPU in which the CDs

were written. The prosecution has thus failed to establish that the

CD was given to Madhukar Mishra, he loaded the CD and had

transferred it to another computer from which it was mailed.

43. The possibility of accused Shahbaz being shown to Madhukar

Mishra cannot be ruled out as Shahbaz was in the custody of SOG

and during the police remand, an application was moved for test

identification parade. The said application was moved on

02.09.2008 and the test identification parade was scheduled on

03.09.2008. The accused remained in custody of the police on 2 nd

night and possibility that he was shown to Madhukar Mishra in

police custody on 2nd & 3rd and in the jail on 3rd morning cannot be

ruled out. Madhukar Mishra whose residence in the notice is

shown as Sahibabad, which is at a distance of around 400 kms,

was served on the same day on which the summons were issued

i.e. on 02.09.2008 and he appeared in the jail on 03.09.2008. This

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clearly goes to show that Madhukar Mishra was in Jaipur itself

where the notices were served upon him. The chances of the

accused being shown to Madhukar Mishra can thus be a possibility,

more particularly when Shahbaz has appeared as a defence

witness and he has stated that while he was in custody of

ATS/SOG, he was shown to a boy, who was wearing maroon

coloured clothes and was having a cap. He has stated that the

same boy came to identify him in jail, which was told to the

Magistrate but, the same was not recorded and he was only asked

to sign the memo.

44. Non-seizure of the register in which entries were made of the

persons, who had used the Cafe on 14.05.2008, also creates

doubt about the involvement of Shahbaz, since from the register it

could have revealed as to who visited the Cyber Cafe to send the

mail. The non-production of the sketches also casts doubt on the

prosecution case, thus, the possibility that the sketches were not

produced as they must not be matching with accused Shahbaz

cannot be ruled out. It is also evident that Madhukar Mishra has

not even given any specific details or features of the person who

came to the Cyber Cafe to send the mail, thus his test

identification parade and identification in Court looses credibility.

45. It has been held by Apex Court in various cases that if a

witness does not give any specific details or features of the

person, who he is identifying, his identification parade looses

credibility, more particularly if the test identification parade is

conducted after a lapse of time. In the present case in hand, the

identification parade was conducted after 3 months and 20 days of

the alleged date of sending the email i.e. 14.05.2008. Thus, the

identification parade by a person, who had seen the sender of the

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email for a short duration and who has not given any specific

features, looses its credibility. Further, the test identification

parade is also not strictly in accordance with the Rajasthan Police

Rules as there was a cut mark on the eyebrow of Shahbaz. No

effort was made by the Magistrate to conceal the mark and put a

tape on the same and on the other persons, who were placed

along with the accused for test identification parade.

46. It is evident that the test identification parade is the only

circumstance against Shahbaz on the basis of which he has been

connected with the Jaipur Bomb Blasts cases and since the test

identification parade was not conducted in a proper manner, since

the same was conducted after 3 months and 20 days and since

there is a possibility that accused was shown to the witness prior

to the test identification parade, this circumstance cannot be

made a ground to hold Shahbaz guilty.

47. The trial Court has discussed in detail each and every aspect

of the matter and has rightly come to the conclusion that the

prosecution has utterly failed to establish that Shahbaz was the

person, who sent email from Cyber Cafe at Sahibabad. The trial

Court has rightly come to the conclusion that there is no evidence

whatsoever to connect Shahbaz with the alleged Jaipur Bomb

Blasts. It has also rightly come to the conclusion that there is no

evidence to the effect that Shahbaz was having any connection

with any of the accused in this case or he was having any

connection with the banned Organizations. Learned trial Court has

thus committed no error in acquitting accused Shahbaz from the

alleged offences. We would like to add that no certificate under

Section 65-B of the Evidence Act was produced to establish the

receipt of mail by India TV and Aaj Tak and material witnesses Mr.

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A.K. Jain and Officers of News Agency were not produced to

establish receipt of E-mail. The point No.2 is therefore answered in

negative.

48. Point No.3-Whether Mohammad Salman planted the bomb on

an Atlas cycle on 13.05.2008 near Sanganeri Gate Hanuman

Mandir, Jaipur?

49. It is admitted by learned Additional Government Advocate

that there is no eyewitness to the planting of bomb near

Sanganeri Gate Hanuman Mandir, Jaipur and the case rests on

circumstantial evidence. For reaching the conclusion as to whether

the bomb was planted by Salman or not, this Court is required to

scan the circumstances and as per the law settled by the Apex

Court, the circumstances should be so linked so as to form a chain

and the chain should be complete and there should be no other

chance of anyone else committing the offence.

50. The first circumstance as pointed out by learned Additional

Government Advocate is the disclosure statement given by

Mohammad Saif. It has been argued by learned Additional

Government Advocate that the disclosure statement made by

Mohammad Saif is covered under Section 10 of the Evidence Act

and as all the accused persons had conspired, the statement made

by one of the conspirators can be read against the other co-

accused also. It would be relevant to quote Section 10 of the

Evidence Act:

“10. Things said or done by conspirator in

reference to common design – Where there is
reasonable ground to believe that two or more
persons have conspired together to commit an offence
or an actionable wrong, anything said, done or written
by any one of such persons in reference to their
common intention, after the time when such intention
was first entertained by any one of them, is a relevant

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fact as against each of the persons believed to be so

conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of
showing that any such person was a party to it.
Reasonable ground exists for believing that A has
joined in a conspiracy to wage war against the 1
[Government of India]. The facts that B procured
arms in Europe for the purpose of the conspiracy, C
collected money in Calcutta for a like object, D
persuaded persons to join the conspiracy in Bombay,
E published writings advocating the object in view at
Agra, and F transmitted from Delhi to G at Kabul the
money which C had collected at Calcutta, and the
contents of a letter written by H giving an account of
the conspiracy, are each relevant, both to prove the
existence of the conspiracy, and to prove A’s
complicity in it, although he may have been ignorant
of all of them, and although the persons by whom
they were done were strangers to him, and although
they may have taken place before he joined the
conspiracy or after he left it.”

51. From bare perusal of Section 10 of the Evidence Act, it is

clear that each of the co-conspirator is responsible for the act

done by one, but the point in issue is whether the statement made

by one accused can be read against other, when the statement is

made after the conspiracy seizes. Admittedly, the bomb blast took

place on 13.05.2008, disclosure statement was recorded on

01.10.2008 and 02.10.2008 i.e. more than 4 months and 20 days

of the bomb blast. The conspiracy came to an end after the bomb

blast and the statement or the disclosure made by Mohammad

Saif cannot be said to be during the subsistence of conspiracy and

is thus not covered under Section 10 of the Evidence Act. In this

regard, we may refer to Mirza Akbar Versus King Emperor:

Manu/PR/0082/1940 and Bhagwan Swarup Lal Bishan Lal

Versus State of Maharashtra: AIR 1965 SC 682. It is a settled

proposition of law that for a case to fall under Section 10 of the

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Evidence Act, there has to be a prima facie case of criminal

conspiracy. The disclosure statement or any fact, which is brought

to the notice of the authorities should have been made during the

pendency of the conspiracy and after the event has taken place,

any disclosure statement made by one of the accused cannot be

used under Section 10 of the Evidence Act against the other co-

accused. Sanjeev Kumar Yadav (PW-160) has stated that on

02.10.2008 Mohammad Saif gave the following disclosure

statement. Saif has stated that on 13.05.2008, he along with

other Cadre of Indian Mujaheedeen, Ariz Khan @ Junaid, Mirza

Shadab Beg @ Malik, Mohammad Khalid, Saifur, Sajid Chhota,

Sajid Bada, Salman, Sarvar, Mohammad Atif Ameen were involved

in planting bombs at Jaipur. Mohammad Saif has narrated that on

11th May, 2008 on the advise of Atif, everyone left their mobile at

Delhi and left for Jaipur from Bikaner House, via Volvo Bus and

reached at Jaipur 02:00 p.m. and distributed themselves in groups

of 4 each. He has also stated that in his group, there was Chhota

and Bada Sajid and Salman. Bada Sajid showed the site where the

blast was to be done. He also showed the cycle shop from where

the cycle was to be purchased. Thereafter, Bada Sajid took them

to the railway station and after seeing the railway station, they

returned to the bus stand and thereafter, all of them left for Delhi

in a non-air conditioned bus. Saif has further stated that on 12 th

May, 2008 they prepared the bombs at Batla House in Delhi. An

Amount of Rs.3,000/- each was given by Atif to each accused for

purchase of cycle. The return tickets from Jaipur to Delhi by Ajmer

Shatabdi Express was also given to each person. Saif has further

stated that on 13th May, 2008 in the morning Chhota Sajid, Bada

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Sajid and Salman brought bombs in school bags and reached

Bikaner House in an auto. Thereafter, from Bikaner House, they

booked tickets to Jaipur in fake Hindu names and then all 7

including Ariz Khan, Mohammad Khalid and Saifur reached Jaipur.

The other co-accused came by a different bus. As per his

disclosure statement, all members of his group had food at a hotel

and thereafter, each purchased a cycle, then planted bombs on

them and after putting the timer, reached Jaipur railway station by

auto. He has further stated that everyone reached the railway

station by 05:00 p.m. they departed for Delhi by Ajmer Shatabdi

Express. Saif has further stated that for sending the mail on

14.05.2008, Atif by a phone, which was not having any sim, sent

the video recording. In his disclosure statement, Saif has further

stated that he can point out to the place where he has placed his

cycle bomb. He has also stated that he can help in getting the

other co-accused arrested.

52. A bare reading of the statement, which was recorded by the

Police on 01.10.2008 and 02.10.2008 reveals that it was a

statement made to the Police in the form of a confession. A

confession made to a Police Official is hit by Sections 25 and 26 of

the Evidence Act and such statement is inadmissible in view of

Section 162 of Cr.P.C. also. It is also pertinent to note that what is

recorded by the Police Officer/ATS is that Mohammad Saif has

stated that he was involved in the Jaipur bomb blast and along

with him, 9 other persons were also involved. However, he has

simply named the other co-accused and has not given any details

about them with regard to their parentage, their place of living

etc. The names which have been mentioned in the disclosure

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statement are common Muslim names such as Salman,

Saifurrehman, Atif and so on. It is also important to note that no

fact was discovered in furtherance of the disclosure statement

made by Mohammad Saif. No persons named in the disclosure

statement were arrested on account of disclosure statement made

by Mohammad Saif, therefore, the disclosure statement is neither

admissible under Section 10 of the Evidence Act nor it is

admissible under Section 27 of the Indian Evidence Act, as no fact

was discovered from such disclosure statement. No attempt was

made by the ATS to get his statement recorded under Section 164

Cr.P.C. The disclosure statement thus cannot be taken aid of and

cannot be considered to be a circumstance against accused

Mohammad Salman.

53. The fact that Mohammad Saif was arrested on 19.09.2008 in

FIR No.166/2008, Police Station, Karol Bagh, Delhi is established

from the statement of Sanjeev Kumar Yadav (PW-160). The trial

Court has considered the disclosure statement made by

Mohammad Saif as a relevant fact under Section 10 of the

Evidence Act. We are in total disagreement with the conclusion

arrived at by the learned trial Court in dealing with the disclosure

statement as a relevant fact under Section 10 of the Evidence Act

for the very reason that the disclosure statement was not made

during the pendency of the conspiracy and it was only after the

incident had taken place that the disclosure statement was made.

Further, the disclosure statement at most was made to a Police

Officer whilst in custody and was thus, inadmissible in view of the

bar contained under Sections 25 and 26 of the Evidence Act.

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54. The next circumstance pointed out by the Additional

Government Advocate against Salman is his own disclosure

statement. Jagdish Prasad Sharma (PW-125) has deposed that on

23.11.2010, he was posted as Dy.S.P. (Operations), ATS, Jaipur.

On that date they arrested Salman in FIR No.130/2008 from the

CJM Court in a muffled condition. He has also stated that Salman

was requisitioned by a production warrant from Tihar Jail, Delhi.

His arrest memo has been exhibited as Exhibit-P141. Satyendra

Singh Ranawat (PW-168) has stated that Salman alongwith Bada

Sajid, Chhota Sajid, Saif, Atif, Khalid, Sarvar, Saifur, Junaid and

Shadab came to Jaipur two and a half years ago, bombs were

brought by Atif and Junaid. He has also stated that Salman in his

disclosure statement has revealed that if he is taken through

Jaipur City, he can point out the place where he had planted the

bomb. This witness has further stated that on 24.11.2010 at

09:15 a.m. Salman gave statement under Section 27 of the

Evidence Act with regard to the place where the cycle was placed.

The same was recorded as Exhibit-P252. Satyendra Singh

Ranawat (PW-168) has further stated that on the basis of the

information given by Salman, he was taken to the place in a

muffled condition near Sanganeri Gate. Salman pointed out to the

place where he had placed the cycle and on the basis of the

information given by the accused, he was arrested in FIR

No.133/2008 Police Station Manak Chowk vide arrest memo

(Exhibit-P152). Witness Jagdish Prasad Sharma (PW-125) has

stated that the place where the cycle was placed was pointed out

by Salman and on that basis, a site plan (Exhibit-P142) was

prepared. The trial Court has come to the conclusion that the

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information given by the accused with regard to the place where

he had placed the cycle is admissible.

55. We have considered the provisions of Section 27 of the

Evidence Act. It is a settled proposition of law that some fact

should be discovered on the basis of the information furnished by

the accused. The fact that a bomb blast took place near Hanuman

Temple, Chaura Rasta, Jaipur is a fact, which was known to

everyone in Jaipur City to the ATS and every Police Officer. Thus,

the disclosure statement with regard to the place of bomb blasts

cannot be considered to be an information under Section 27 of the

Evidence Act as no fact was discovered on the basis of this

information. The pointing out to the place where he planted cycle

bomb cannot thus be considered to be a circumstance against

Mohammad Salman.

56. The next circumstance and as per the prosecution the main

circumstance against accused Salman is his test identification by

the shop keeper – Rajesh Lakhwani in test identification parade

held in jail and later on identifying accused Salman in Court at the

time of recording of evidence. Rajesh Lakhwani (PW-147), shop

keeper, who has allegedly sold the cycle to Jitendra has stated

that he was called at Jail to identify the person to whom he sold

cycle on 13.05.2008 and he identified Salman as the same person.

Satyendra Singh Ranawat (PW-168) has stated that accused

Salman was sent to judicial custody. Permission was sought from

CJM, Jaipur for test identification and SDM, Ajmer was assigned

the job of conducting test identification parade of Salman. The

report of the test identification parade has been exhibited as

Exhibits-P143, P144 and P145. Satyendra Singh Ranawat (PW-

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168) has stated that he was not present at the time of test

identification parade. On cross-examination, Satyendra Singh

Ranawat (PW-168) after seeing the Entry and Exit register

(Exhibit-D22) of 28.11.2010 wherein it is mentioned that at 11:30

a.m. Baldev Singh, SDM Ajmer, Satyendra Singh Ranawat (PW-

168) and witness Rajesh Lakhwani (PW-147) all entered the jail

together. It is also mentioned that at 11.55 a.m. all of them exited

the jail, however, Satyendra Singh Ranawat (PW-168) submitted a

clarification in his cross-examination that he only entered till the

administrative building of the jail complex and did not enter the

jail as such. Rajesh Lakhwani (PW-147) has stated that 6-7

persons were placed with the accused and he had rightly identified

accused Salman. In the cross-examination, Rajesh Lakhwani (PW-

147) has stated that for the first time he saw accused Salman on

13.05.2008; second time, when he was identified in jail and

thereafter, he has seen the accused in the court proceedings.

Baldev Singh (PW-126) has stated that on 28.11.2011 he went to

the Central Jail and in his presence, the test identification parade

was conducted. In the cross-examination, this witness has denied

that he along with Satyendra Singh Ranawat (PW-168) and the

witness entered the jail premises at the same time and that they

all exited together at the same time. Baldev Singh (PW-126) has

further stated that there was a mark on the cheek of Salman and

a white tape was put on that and similar tape was put on the

other persons, who participated in the test identification parade

along with the accused. The Court below has come to the

conclusion that the test identification parade was properly

conducted and the witness had correctly identified Salman.

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57. In the present case, test identification parade is of utmost

importance because that is the main circumstance. It is pertinent

to note that the test identification parade of accused Salman was

conducted on 24.11.2010 and the date of sale of cycle is

13.05.2008 meaning thereby, that the test identification parade

was conducted after 2 years, 6 months and 11 days of the date of

the sale. Rajesh Lakhwani (PW-147) has not pointed out any

special features or attributes of the person - Jitendra Singh, who

had purchased cycle from his shop. No features were told to the

Court which made it possible for Rajesh Lakhwani (PW-147) to

recognize the purchaser after more than two and a half years of

the sale of the cycle.

58. From the judgments referred to herein-above under the

heading ‘test identification parade’, we have enumerated that if

there is delay in conducting test identification parade, then there

ought to be some specific features on the basis of which the

witness could identify the accused. Brij Mohan & Ors. Versus State

of Rajasthan (supra) was a case where dacoity was committed

wherein four persons were killed. The gruesome and callous

manner, in which the dacoity was committed by the culprits must

have left a deep impression on the mind of the witnesses and

therefore, they were identified by eleven witnesses. In that case,

delay of 3 months in test identification period was not considered

to be an inordinate delay.

59. Daya Singh Versus State of Haryana (supra) was a case

where son and daughter-in-law of the witnesses were murdered in

their presence. It was observed by the Apex Court that the

incident must have left an impression in the mind of the witnesses

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and merely because test identification parade was not got

conducted, even then their evidence cannot be disbelieved. That

was a case where the identification in Court was done after 8

years of the incident.

60. In Pramod Mondal Versus State of Bihar (supra) and Raja &

Ors. Versus State of Karnataka (supra), the Apex Court held that

no hard and fast rule about the period within which test

identification parade must be held from the arrest of the accused,

can be laid. In some cases, the Court considered delay of 10 days

to be fatal while in other cases even delay of 40 days or more was

not considered to be fatal.

61. Contra to the above, in Wakil Singh v. State of Bihar (supra),

the test identification parade was conducted after three and a half

months of dacoity. The Court considered it unsafe to convict the

accused on the basis of the test identification parade. In

Chunthuram Versus State of Chattisgarh (supra) the presence of

the Police during the test identification parade was considered to

be an infirmity and the same was considered to be a statement

made to a Police Officer in course of investigation. In Amitsingh

Bhikam Singh Thakur v. State of Maharashtra (supra), the Apex

Court observed that the main object of holding such tests during

investigation is to check the memory of witnesses based upon first

impression and to enable the prosecution to decide whether these

witnesses could be cited as eye witnesses of the crime. It was held

that the evidence of the identification of accused for the first time

is inherently weak in character and the court has held that the

evidence in test identification parade does not constitute

substantive evidence and these parades are governed by Section

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162 of Code of Criminal Procedure and the weight to be attached

to such identification is a matter for the courts.

62. It is also settled proposition of law as held by the Apex Court

in Dana Yadav @ Dahu & Ors. Versus State of Bihar (supra) that

evidence of identification of an accused in court by a witness is

substantive evidence whereas that of identification in test

identification parade is, though a primary evidence but it is not a

substantive one, and the same can be used only to corroborate

identification of accused by a witness in court. In Mohd. Sajjad

Alias Raju Alias Salim Versus State of West Bengal (supra), the

Apex Court held that the value to be attached to a test

identification parade depends on the facts and circumstances of

each case and no hard-and-fast Rule can be laid down. The court

has to examine the facts of the case to find out whether there was

sufficient opportunity for the witnesses to identify the accused.

The court has also to rule out the possibility of their having been

shown to the witnesses before holding a test identification parade.

Where there is an inordinate delay in holding a test identification

parade, the court must adopt a cautious approach so as to prevent

miscarriage of justice. In cases of inordinate delay, it may be that

the witnesses may forget the features of the accused put up for

identification in the test identification parade. The Court however

observed that it was not an absolute rule because it depends upon

the facts of each case and the opportunity which the witnesses

had to notice the features of the accused.

63. As to whether Rajesh Lakhwani (PW-147) had enough time

or opportunity to see the particular features of the person who

bought the cycle is an important fact. For this purpose, we have

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perused the statement of Rajesh Lakhwani (PW-147). This witness

in his cross-examination had admitted that he cannot explain the

facial features of the persons, who purchased cycle from his shop

on 12.05.2008, 13.05.2008 and 14.05.2008. This witness has

stated that the Police came to his shop and inquired about the

features of the persons who had purchased the cycles and he just

gave a rough idea as to how that person looked. As to whether a

sketch was prepared from him, this witness is not able to depose

before the Court. This witness has also stated that he does not

remember whether some tape was put on the faces of other

persons amongst whom he was to recognize the purchaser of the

cycle. This witness has stated that for the first time he saw

Salman on 13.05.2008 when cycle was purchased by him in the

name of Jitendra Singh. Thereafter, he saw Salman at jail during

the test identification parade and then he has seen Salman in the

Court. It is pertinent to note that evidence of this witness was

recorded on 16.01.2019 i.e. after about 11 years of the date of

blast. The statement of the witness that he cannot remember the

faces of persons, who had purchased cycles on 12 th, 13th and 14th

May, 2008 and that he recognizes only the person who had

purchased cycle on 13.05.2008 goes to show that he is a planted

witness, who was asked purposely to identify Salman. If a witness

cannot remember the person, who had purchased cycles in those

days, it is hard to believe how he can recognize only this particular

person when he was having general features as admitted by

Rajesh Lakhwani (PW-147).

64. The fact that Sub Divisional Magistrate, Baldev Singh (PW-

126), Satyendra Singh Ranawat (PW-168) and witness – Rajesh

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Lakhwani (PW-147) all entered the jail premises at 11:30 a.m.

and exited at the same time at 11:55 a.m. is something which is

to be taken note of for the very reason that Baldev Singh (PW-

126) denied entering the jail along with Satyendra Singh Ranawat

(PW-168) and the witness and he also denied exiting the jail

together with Satyendra Singh Ranawat (PW-168) and witness.

Similar is the statement of Satyendra Singh Ranawat (PW-168),

who has also stated that he did not enter the jail premises with

Baldev Singh (PW-126) and the witness and he did not exit at the

same time with them. However, when he was shown the Jail

Register (Exhibit-D22), then he tried to give an explanation to the

same and he said that he did not enter the administrative area.

The Jail Register (Exhibit-D22) establishes the presence of

Satyendra Singh Ranawat (PW-168) inside the jail at the time of

conducting of the test identification parade and he entered and

remained in jail with Baldev Singh and Rajesh Lakhwani for the

same period i.e. 11:30 a.m. to 11:55 a.m., which casts doubts on

the veracity of the test identification parade.

65. The Apex Court in Chunthuram Versus State of Chattisgarh

(supra) has held that the presence of Police during the test

identification parade is a grave infirmity. In the present case, the

Police Officer, who was conducting the investigation, was present

in the jail for the same period during which the witness and the

Sub Divisional Magistrate were inside the jail. Coupled with the

fact that the test identification parade was conducted after two

and a half years of the incident and no specific features were

pointed out by witness Rajesh Lakhwani (PW-147), the test

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identification parade loses its importance and the same cannot be

relied upon.

66. Yet another feature, which can be considered as an infirmity

is that the other persons, who were placed with Salman at the

time of test identification parade were in the age group of 19-30

years whereas, Salman as per the judgment of the Juvenile Justice

Board, he was a minor. This goes to show that the requirement

under Rule 7.31(1)(f) of Rajasthan Police Rules which states that

dummies must be similar in appearance to the accused was not

complied with during the TIP parade.

67. As to whether Salman travelled in the name of Jitendra from

Delhi to Jaipur and returned from Jaipur to Delhi?

68. Satyendra Singh Ranawat (PW-168) has deposed that on

13.05.2008 Sunil Kumar, Parshant, Jitendra Singh and Harsh

Yadava came from Delhi to Jaipur by Volvo Bus. He has produced

the reservation chart of bus as Exhibit-P244 and has stated that

the above-named persons were traveling on seat Nos.19 to 22. He

has further stated that on 13.05.2008 Sunil Kumar, Rahul, Vikas

Soni, Rakesh Mittal, Rajhans Yadav, Jitendra Singh, Parshant,

Rajesh Agarwal, they all returned from Jaipur to Delhi by Ajmer

Shatabdi Train. The reservation charts of train have been produced

as Exhibit-P136 and Exhibit-P137A. The list of confirmed

passengers is produced as Exhibit-P76A. As per his version, all the

ten accused returned to Delhi by Ajmer Shatabdi. He has also

stated that cycle was purchased in the name of Jitendra Singh.

The address given in the sale memo was B-137, Govind Marg,

Janta Colony, Jaipur. He got the place verified, but no one by the

name of Jitendra Singh was residing at the given address.

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69. Admittedly from the reservation chart of the Volvo Bus and

the return ticket from Jaipur to Delhi mentions the name of

Jitendra Singh as one who travelled on that day i.e. 13.05.2008.

The witness who could have identified Salman as the traveler

could be either the Bus Conductor or the Traveling Ticket Examiner

of the Railways. No effort was made to produce these witnesses

and it is argued before the Court below that so many travelers

travelled on the bus and in the train, so it is very difficult for the

Conductor or the Traveling Ticket Examiner to remember them.

70. While dealing with the test identification parade, we have

come to the conclusion that the identification of Salman as

Jitendra by shop keeper, Rajesh Lakhwani (PW-147) is not

humanly possible as it is not possible for a shop keeper to

remember the face of a particular purchaser after two and a half

years of the incident when nothing particular had happened at the

time when the sale was made. Rajesh Lakhwani (PW-147) has also

not stated any specific features of Salman so as to infer that

Salman was the person who purchased the cycle in the name of

Jitendra Singh. Thus, merely by producing tickets or by

reservation charts, it cannot be deduced that the person who

travelled in the name of Jitendra Singh was Salman. Satyendra

Singh Ranawat (PW-168) has also admitted in his cross-

examination the fact that the accused travelled in the fake Hindu

names was ascertained only after inquiry from the accused and

that there is no documentary evidence to establish that the

accused travelled in fake Hindu names. Bhawani Dutt Sharma

(PW-31), who was Stock Incharge at the Railway Reservation

Centre has admitted in his cross-examination that no one can

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travel in Ajmer Shatabdi Express without reservation. He has also

admitted that a reservation slip is to be filled for obtaining

reservation in the Shatabdi Express and in the reservation form,

one has to write his name, address, phone number and the class

in which one wants to travel. He has further stated that only after

seeing the reservation form, it can be ascertained as to from

which place the reservation was got done.

71. It is pertinent to note that no effort was made by the

Investigating Officer to collect the reservation slips of the

travelers. It is also pertinent to note that in Exhibit-P136

reservation chart of train, as per the witness, on seat No.43 Harsh

Yadava, seat No.44 Sunil Kumar, seat No.49 Rahul, seat No.59

Vikas Sony, seat No.60 Rakesh Mittal, seat No.64 Jitendra Singh,

seat No.65 Parshant Rai and seat No.66 Rajesh Agarwal and on

seat No.31 Raj Hans Yadav travelled. From the perusal of Exhibit-

136A, it is evident that all these tickets are having different ticket

numbers meaning thereby that different reservation slips must

have been filled by the travelers. No effort was made by the

Investigating Officer to seize the reservation slips from which it

could have been ascertained as to who were the travelers, what

was their place of residence and the handwriting could also have

been sent to the Handwriting Expert to ascertain whether the

forms were filled by the accused persons.

72. As to whether Salman travelled in the name of Jitendra Singh

in the Volvo Bus from Delhi to Jaipur. For this purpose, Satyendra

Singh Ranawat (PW-168) has exhibited roadways reservation

chart as Exhibit-P244 wherein Sunil Kumar, Parshant, Jitendra

Singh and Harsh Yadava have come to Jaipur. The Investigating

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Officer has not produced the reservation form of the bus before

the Court, which was also an important document from which it

could have been ascertained as to who had filled the reservation

form.

73. As to whether Salman travelled in a Muslim name on

11.05.2008.

74. For this purpose, they have produced Bajrang Singh (PW-

121), who has stated that on seat Nos.21 to 28, Abdula, Saleem,

Malik, Shahjad, Abdula, Umar, Nafaj and Fahad travelled. No effort

whatsoever has been made by the Investigating Officer to

ascertain as to in which name Salman travelled. Thus, it was an

error on the part of the Court below to have come to the

conclusion that Salman travelled in a Muslim name on 11.05.2008

and then travelled in a fake Hindu name i.e. Jitendra Singh on

13.05.2008. The Court has mentioned that there is a possibility

that Salman had travelled in a Muslim name on 11.05.2008 and

might have returned by an ordinary bus on the same day. In

absence of any cogent evidence, it could not be established that

Salman travelled in a Muslim name on 11.05.2008 and travelled

by the name of Jitendra Singh on 13.05.2008 by roadways bus

and then returned to Delhi by Shatabdi Train in the name of

Jitendra Singh. Learned trial Court has mentioned that possibility

cannot be ruled out that Salman travelled in a Muslim name. We

are of the considered view that Salman may have travelled or

might have travelled cannot be made a basis of coming to the

conclusion that Salman in fact travelled in a Muslim name on

11.05.2008. There has to be a clear proof of any fact which the

prosecution wants to establish in a case, which is based on

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circumstantial evidence. In the present case in hand, learned trial

Court has clearly erred in considering the disclosure statement

made by Mohammad Saif, which is hit by Section 162 of Cr.P.C.

and Sections 25 and 26 of the Evidence Act. There was no

discovery of fact from the disclosure statement made by

Mohammad Saif, hence, it could not have been used under Section

27 of the Evidence Act as well.

75. The prosecution has utterly failed to establish that Salman

travelled in a Muslim name on 11.05.2008, then he travelled in a

Hindu name (Jitendra Singh) on 13.05.2008 and returned to Delhi

in the same name. The prosecution has further failed to establish

that the person who purchased the cycle was accused Salman.

This Court is of the considered view that a witness cannot

remember a person, who had purchased the cycle, two and a half

years ago when no specific features were mentioned by the

witness. It is also important to note that no sketches were got

prepared from shop keeper – Rajesh Lakhwani (PW-147).

76. The bill book of Hemraj Cycle & Stove Works has been

produced to establish that the sale was made to Jitendra Singh on

13.05.2008, however, as per statement of Rajesh Lakhwani (PW-

147), he had sold the cycle from Shop No.264, Hari Om Cycles. No

bill of Hari Om Cycles has been produced by the prosecution.

Rajesh Lakhwani (PW-147) in his cross-examination has admitted

that both the shops i.e. Hemraj Cycle & Stove Works Shop No.84

and Hari Om Cycle Shop No.264 have different registration

numbers and different accountants. Since the cycle was sold from

Shop No.264 and bill book of Shop No.84 has been produced, it is

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evident that the bill book was not maintained in regular course of

business for Shop No.264 from where allegedly cycle was sold.

77. Further, the bill book for the first time was produced before

the Court and was exhibited as Article-51 on 28.05.2012 i.e. after

four years of the alleged bomb blasts incident. As to why the bill

book, which is a most important evidence in the case was not

seized by the police, has not been explained.

78. As per witness Rajesh Lakhwani (PW-147), bill book (Article-

54) was taken by the police from his father, however, the same bill

book was produced by Rajesh Lakhwani (PW-147) as Article-51 in

another sessions case from his own possession. Rajesh Lakhwani

(PW-147) in his cross-examination had admitted that bill book

(Article-54) was taken by the police from his father. As to why the

bill book was taken, the witness was not able to depose before the

Court. The original bill book was produced before the Court by the

witness himself on 28.12.2012 from his own custody. As to where

the bill book remained after it was seized from his father and how

it come back to the possession of witness Rajesh Lakhwani (PW-

147) is also a mystery, which is not explained by the prosecution.

79. For convicting a person in a case which rests on

circumstantial evidence, a chain should be formed and there

should be no breakage in the chain. From the discussions made

herein-above, leave aside complete chain, we have to conclude

that not a single link of the chain is made out in the present case

against accused Salman.

80. Point No.4 – Whether Bill Books establishes sale of bicycles

to accused on 13.05.2008 and whether the blasts took place on

the bicycles sold to the accused?

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81. To establish sale and use of bicycles for planting bombs, the

prosecution has produced the bill books. We have perused each

bill book very minutely.

82. So far as bill book of Anju Cycle Company is concerned, we

have found that there were two bills bearing No.682 and bill in

dispute pertained to cycle having frame number 97908 whereas,

the cycle, which was recovered from the blast site, was having

frame number 30616. The other anomaly, which we found on

minute perusal of the bill book is that there were two bills of same

serial No.682. In the entire bill book, in the main bill, there were

grooves to facilitate tearing of main bill, however, there were no

grooves in the disputed bill No.682, thus giving this Court an

impression that it has been inserted afterwards with an intention

to implicate Mohammad Saif. Original Bill No.682, which was there

in the bill book, was changed to 681 in the carbon copy by making

‘2’ as ‘1’ with blue ink. Even the font of original bill No.682, which

has been made 681, is not matching with the disputed bill No.682,

which also fortifies our conclusion that the bill appears to have

been inserted later on. This bill book is further not maintained in

the regular course of business as no VAT has been charged in the

bill book and the column against which the VAT is to be charged is

empty in all the bills whereas in all the other bill books, which

have been produced before the Court, VAT has been charged. This

bill book was also not seized by the Investigating Officer

immediately after the blast, even when it was known that cycle

was sold from Anju Cycle Company.

83. In bill book of Hemraj Cycle & Stove Works in bill No.3411,

no frame number is mentioned. The bill is in the name of Ajay

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Singh whereas there is no evidence that any person with the

name of Ajay Singh travelled from Delhi to Jaipur and Jaipur to

Delhi. The bill is dated 12.05.2008 whereas as per the prosecution

case cycles were purchased on 13.05.2008. In the bill book in bill

Nos.3406, 3407, 3408, 3409 and 3412 in carbon copy, dates have

been changed with ink. These bills are just preceding bill No.3411

and one bill is succeeding bill No.3411.The corrections were not

made in the main bill and have been made in the carbon copy.

Thus, there is fabrication of the documents. The bill book was also

not seized and without there being any frame number, the same

has been connected with the bomb blasts, which took place at

Phoolawalon ka khanda near Choti Chaupar. It is an admitted case

of the prosecution that there are more than 50 shops selling

cycles in Jaipur and bill books of all the shops were not seized. As

to how Rajendra Singh Nain came to the conclusion that the cycle

involved in blast, which took place at Phoolawalon ka khanda near

Choti Chaupar was sold from Hemraj Cycle & Stove Works, is not

explained by the prosecution.

84. So far as bill No.1796 of Hemraj Cycle & Stove Works, Shop

No.64, Kishanpole Bazar is concerned, the frame number on the

bill is matching with the frame number of the cycle recovered from

the blast site near Purva Mukhi Hanuman Temple, Sanganeri Gate.

This cycle as per the witness-Rajesh Lakhwani was actually sold

from Hari Om Cycle Works, Shop No.264, Kishanpole Bazar, Jaipur.

Rajesh Lakhwani has admitted that both the shops have different

registration numbers and different accountant and both are filing

separate returns. As to why bill of Shop No.264, Hariom Cycle

Works was not given to the purchaser is also a mystery. Thus, it is

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evident that the bill book was not maintained in the ordinary

course of business for Shop No.264. This bill book was also not

seized by the police and was produced for the first time in the

Court after a lapse of 4 years.

85. So far as bill No.3105 of Nand Cycle Works is concerned, the

bill is dated 12.05.2008 whereas as per the prosecution version,

the cycles were sold on 13.05.2008. The frame number mentioned

in the bill book is I023625, however, the frame number mentioned

in the seizure memo is I042625 whereas in the site plan frame

number mentioned is I062625. Thus, the frame number

mentioned on the bill book is not matching with the frame number

of the cycle recovered from the blast site. In the bill book, initially

the name of purchaser was mentioned as ‘Raje’, which was later

on being cut and in its place ‘Rajhans Sharma’ has been

mentioned. As per Laxman Jajhani, he had wrongly mentioned the

frame number of the cycle on saying of the Mistri. The said Mistri

was not produced as a witness before the Court, hence, it is not

established that the cycle which as per the bill was having frame

number I023625 and which was sold on 12.05.2008 was used in

the bomb blast. The cycle as per Laxman Jajhani was sold from

Mohit Cycle Works, Shop No.80, Kishanpole Bazar whereas the bill

was of Nand Cycle Company, Shop No.273, Kishanpole Bazar. As

per the witness shop no. 273 belongs to his brother and as per

Laxman Jajhani, both brothers are filing returns separately and

are having separate registration numbers under the Shops Act.

The Mistri who had dictated the number has also not been

produced by the prosecution to establish that he had dictated a

wrong frame number. No record of the shop has been produced to

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establish that the frame number involved in the bomb blasts which

is I042625, was actually purchased by Nand Cycle Company/Mohit

Cycle Company. As to how Laxman Jajhani came to know that the

frame number mentioned in bill book I023625 is wrong and

actually it was I042625, is also not explained. As per the

prosecution evidence, only one blast took place near Hanuman

Temple, Chandpole Bazar and that the blast took place on a PENY

cycle.

86. When frame number mentioned in the bill book was not

matching with the frame number of cycle found on the blast site

and the date of sale was not matching with the prosecution story,

as to how Rajendra Singh Nain singled out this particular shop as

the one from where cycle was sold, is also not clear. The

prosecution has failed to seize the material evidence, which is the

bill book and this bill book was produced before the Court for the

first time on 04.07.2011 i.e. after a lapse of more than 3 years.

87. We can thus conclude that the bill books in these cases were

material evidences but they suffer from many infirmities such as

mismatch of frame numbers, date of sale and seeming fabrications

and manipulations in the bill books including insertion of disputed

bill in the bill book of Anju Cycle company. The frame number of

cycles sold did not match with the frame number of the cycles

recovered from blast site. Thus, we are of the considered view

that it is not established that the cycles were sold to the accused

and were planted by the accused.

88. Point No.5-Whether Mohammad Saif, Shaifoorrehman and

Sarvar Azmi are co-conspirators?

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89. Learned Additional Government Advocate has set up a case

that all the accused were knowing each other. They came to Jaipur

on 11.05.2008 and after doing ‘Reki’ returned on the same day.

They made bombs on 12.05.2008, came to Jaipur on 13.05.2008

afternoon and returned by Ajmer Shatabdi on 13.05.2008 itself.

We deem it fit to reproduce Section 120-A of IPC as under:

“120-A. Definition of criminal conspiracy.—When two or

more persons agree to do, or cause to be done,— (1)
an illegal act, or
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to
commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in
pursuance thereof. Explanation.—It is immaterial
whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.

90. Disclosure statements of Saif, Saifurrehman, Sarvar Azmi

and Salman have been discarded by the Court and are hit by

Sections 25 & 26 of the Evidence Act and Section 162 Cr.P.C.

Disclosure statement pertaining to pointing out to the place of

bomb blasts and shops from where cycles were purchased, have

also been discarded by the Court, as these facts were already in

the notice of the Investigating Agency and no new fact has been

discovered under Section 27 of the Evidence Act.

91. The evidence pertaining to test identification parade needs to

be discarded as sale of cycle has not been established, test

identification parade was conducted after inordinate delay, the

same was conducted in the presence of Police Official, the

possibility that accused was shown to the witness cannot be ruled

out. The witnesses had cloudy memory as they deposed before

the Court that they cannot identify purchasers, who had

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purchased cycles few days back, in those circumstances, seeing a

purchaser for few minutes and then identifying him after many

months was humanly impossible and thus, their evidence is

disbelieved by the Court.

92. It is to be noted that no evidence has been adduced to

establish that there was any meeting of mind prior to the date of

bomb blasts between Mohammad Saif, Saifurrehman, Salman and

Sarvar Azmi. The prosecution has not established either

agreement to do an illegal act or a concert of action to cause an

illegal act. Thus, the prosecution has utterly failed to establish the

requisites of Section 120-A of IPC which defines criminal

conspiracy.

93. Anything said by a co-conspirator is relevant under Section

10 of the Indian Evidence Act and in this regard, State has relied

on the disclosure statement of Mohammad Saif. While dealing with

this argument, we have already held that any disclosure

statement made by a co-accused is admissible against co-

conspirator only if disclosure is made during the subsistence of the

conspiracy. The disclosure statement of Mohammad Saif in this

case was made many months after the bomb blasts and no

conspiracy was subsisting as on the date of disclosure. Otherwise

also, in the disclosure statement, generic muslim names were

used and they do not disclose the identify of the co-conspirators.

94. Admittedly, the case rests on circumstantial evidence and till

arrest of Mohammad Saif, the prosecution had no link or clue with

regard to the bomb blasts. The cases of all the accused as per the

prosecution version is so interlinked that each chain is required to

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be established. In the deliberations made above, we have come to

the conclusion that none of the link in the chain is established so

as to bring home conviction of the accused, rather not a single link

has been established before the Court. The links which should

have been established and have not been established are: journey

on 11.05.2008 from Delhi to Jaipur; making bombs at Delhi on

12.05.2008; coming to Jaipur by bus on 13.05.2008, having lunch

at Hotel Kareem; purchasing cycles, planting bombs on them and;

returning by Ajmer Shatabdi Train on 13.05.2008 itself.

95. While deciding Death Reference Nos.2, 3 & 4, this Court has

come to the conclusion that the prosecution has not been able to

establish beyond reasonable doubt the involvement of

Saifurrehman, Sarvar Azmi and Saif in Jaipur Bomb Blasts. While

deciding Death Reference No.2/2020, we have come to the

conclusion that Mohammad Saifurrehman is not guilty; in Death

Reference No.3/2020, we have held Mohammad Sarvar Azmi as

not guilty and in Death Reference No.4/2020, we have held

Mohammad Saif as not guilty. Since the prosecution has failed to

establish beyond reasonable doubt the guilt of Mohammad Sarvar

Azmi, Saifurrehman and Mohammad Saif, they cannot be held

guilty as co-conspirators in the present case. Accordingly, this

point is also decided against the State and in favour of accused.

96. Before we conclude, we must place on record the fact that

we are not unaware of the degree of agony and frustration that

may be caused to the society in general and the families of the

victims in particular by the fact that a heinous crime like this goes

unpunished but, then law does not permit the Courts to punish the

accused on the basis of moral conviction or on suspicion alone. It

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is always the burden of the prosecution to prove their case beyond

reasonable doubt on the basis of acceptable evidence. The Apex

Court in Sarwan Singh Versus State of Punjab: AIR 1957 SC 637

observed as under:

“It is no doubt a matter of regret that a foul cold-

blooded and cruel murder should go unpunished.
There may also be an element of truth in the
prosecution story against the accused. Considered as a
whole, the prosecution story may be true; but between
'may be true' and 'must be true' there is inevitably a
long distance to travel and the whole of this distance
must be covered by legal, reliable and unimpeachable
evidence before an accused can be convicted.

97. It is also a settled principle of criminal jurisprudence that

more serious the offence, the stricter the degree of proof, since

higher degree of assurance is required to convict the accused.

98. From what we have discussed herein-above, it is evident that

the prosecution has failed to establish beyond reasonable doubt

that Salman came to Jaipur in the name of Jitendra Singh, planted

the cycle near Purva Mukhi Hanuman temple, Sanganeri Gate and

left by Ajmer Shatbadi Train on the same day; we, therefore,

decline the reference and allow the appeal filed by accused –

Saifurrehman, Mohammad Sarvar Azmi, Mohammad Saif and

Mohammad Salman and dismiss the appeal filed by the State

challenging the acquittal of Shahbaz and for enhancement of

sentence of Saifoorrahman, Mohammad Saif and Sarvar Azmi. As

a result thereof, accused Shahbaz, Salman, Mohammad Saif and

Sarvar Azmi are acquitted and judgment of the trial Court to the

extent it has acquitted Shahbaz is upheld. Consequently, D.B.

Criminal Death Reference No.1/2020 is declined; D.B. Criminal

Appeal Nos.21/2022, 56/2022 & 213/2022 are allowed and

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accused Saifurrehman, Mohammad Salman, Mohammad Saif and

Sarvar Azmi are acquitted of all the charges. D.B. Criminal Appeal

No.253/2022 preferred by the State is dismissed. The impugned

judgment of conviction dated 18.12.2019 and the order of

sentence dated 20.12.2019 are accordingly quashed and set

aside.

99. The accused, who are in custody, be set at liberty forthwith,

if not required in any other case or for any other purpose.

100. Accused Appellants–Mohammad Saif, Mohammad

Saifurrehman, Mohammad Sarvar Azmi and Mohammad Salman

are directed to furnish personal bond in the sum of Rs.5,00,000/-

and a surety bond in the like amount in accordance with Section

437-A of Cr.P.C. before the Registrar (Judicial) within two weeks

from the date of release to the effect that in the event of filing of

Special Leave Petition against this judgment or on grant of leave,

Accused Appellants – Mohammad Saif, Mohammad Saifurrehman,

Mohammad Sarvar Azmi and Mohammad Salman on receipt of

notice thereof, shall appear before the Hon’ble Apex Court. The

bail bond will be effective for a period of six months.

101. It is apparent that the investigation was not fair and it

appears that nefarious means were employed by the Investigating

Agencies, material witnesses required to unfold the events were

withheld and apparent manipulations and fabrications have been

done during the investigation. We therefore deem it proper, in

interest of society, justice and morality, to direct the Director

General of Police, Rajasthan, to initiate appropriate

enquiry/disciplinary proceedings against the erring officers of the

investigating team.

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102. Since, sealed articles were opened in the Court, the Registrar

(Judicial) is directed to reseal the same and return the record to

the trial Court forthwith.

103. All the pending applications stand disposed.

(Per Hon’ble Sameer Jain, J.)

CONCURRING VIEW WITH ADDITIONAL OBSERVATIONS AND

DIRECTIONS:
1. I have had the pleasure of reading the academic and erudite

judgment authored by my brother judge and I am in complete and

respectful agreement with him on every point involved. However,

having regard to the importance of the issue involved, I deem it

appropriate to pen down a few of my own views, in addition to the

opinion of my brother judge. The following observations and

directions are common to all the death references and appeals

adjudicated, irrespective of fact that the said death references and

appeals were adjudicated individually and independently on their

own facts and arguments in great details in the above part of the

judgment.

2. At the outset, the well established rule of criminal

jurisprudence of “fouler the crime, higher the proof” is required to

be noted. In the instant case, the life and liberty of convicts, who

are young individuals, is at stake. As the accused were given

death sentence, a very careful, conscious and meticulous

approach was necessarily required to be made. It is well settled

that the prosecution must stand or fall on its own legs and that it

cannot derive any strength from the weakness of the defence. It is

also a settled law that wherever there are two possibilities, one

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reasonably indicating commission of crime and the other

reasonably indicating innocence of accused(s), the accused(s)

must be given the benefit of doubt. When any fact asserted by the

prosecution runs doubtful, the benefit should go to the accused

and not to the prosecution; that is the settled position of law. In

this regard, reliance is invited upon judgment of the Hon’ble Apex

Court rendered in Digamber Vaishnav & Anr. Vs. State of

Chhattisgarh: (2019) 4 SCC 522 wherein it was held as under:-

“14. One of the fundamental principles of criminal

jurisprudence is undeniably that the burden of proof
squarely rests on the prosecution and that the general
burden never shifts. There can be no conviction on the
basis of surmises and conjectures or suspicion
howsoever grave it may be. Strong suspicion, strong
coincidences and grave doubt cannot take the place of
legal proof. The onus of the prosecution cannot be
discharged by referring to very strong suspicion and
existence of highly suspicious factors to inculpate the
Accused nor falsity of defence could take the place of
proof which the prosecution has to establish in order to
succeed, though a false plea by the defence at best, be
considered as an additional circumstance, if other
circumstances unfailingly point to the guilt.
16. In order to sustain the conviction on the basis of
circumstantial evidence, the following three conditions
must be satisfied:
i.) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly
established;
ii.) those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the Accused;
and
iii.) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the Accused and none else, and it
should also be incapable of explanation on any other
hypothesis than that of the guilt of the Accused.
18. In Sujit Biswas v. State of Assam (2013) 12 SCC
406, this Court, while examining the distinction between

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'proof beyond reasonable doubt' and 'suspicion' has held

as under:
13. Suspicion, however grave it may be, cannot
take the place of proof, and there is a large
difference between something that "may be"
proved, and something that "will be proved". In a
criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of
proof. This is for the reason that the mental
distance between "may be" and "must be" is quite
large, and divides vague conjectures from sure
conclusions. In a criminal case, the court has a
duty to ensure that mere conjectures or suspicion
do not take the place of legal proof. The large
distance between "may be" true and "must be"
true, must be covered by way of clear, cogent and
unimpeachable evidence produced by the
prosecution, before an Accused is condemned as a
convict, and the basic and golden Rule must be
applied.”

Bearing these principles in mind, this Court, after careful

considerations, has consciously decided both the references and

appeals in favour of the convicts. This Court has observed that the

learned trial court has erroneously relied upon inadmissible

evidence, ignored material contradictions, and has also not

properly considered the legal provisions enumerated in The Indian

Evidence Act, 1872 (for short “Evidence Act”); Information and

Technology Act, 2000 (for short “I&T Act”) and the Code of

Criminal Procedure, 1973 (for short “CrPC”), which has led to

passing of the erroneous impugned order(s) which is against the

settled position of law.

3. In the instant matters, the following instances are note-

worthy:

i. The blasts occurred on 13 th May 2008 in the city of Jaipur

(Rajasthan). Subsequently, after four months, similar blasts

took place in the capital city of New Delhi on 13 th September

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 (124 of 131) [CRLDR-1/2020]

2008. For these four months, little to nothing was done by

the investigation agencies in the State of Rajasthan.

ii. The Special Cell of Delhi Police, on a tip off, raided the Batla

House in Jamia Nagar of South Delhi on 19.09.2008, where

the alleged perpetrators of the crime were holed up. Only

one of the accused, Mohd. Saif, was apprehended and his

statements were recorded under police custody, did the

investigation actually begin.

iii. The prosecution has attempted to disguise the alleged

statements made by the accused under police custody as

disclosure statements. However, the said statements were

not confessions or admission of guilt, as the same were

recorded in police custody and are hit by the provisions of

Section 162 Cr.P.C read with Sections 25, 26 and 27 of the

Evidence Act. Further, the same has not been corroborated

by the recovered evidence and material and is, therefore,

unreliable and inadmissible. The statements so recorded

were extra judicial statements made under police custody.

The prosecution ought to have recorded the statement under

Section 164 Cr.P.C before the learned Magistrate and for the

lack thereof, along with absence of any supporting

corroborating evidences, the alleged statements are hit by

provisions of Section 162 Cr.P.C. read with Sections 25, 26

and 27 of the Evidence Act and are therefore inadmissible.

Reliance in this regard is placed on the judgment of Apex

Court in Indra Dalal vs. State of Haryana: (2015) 11 SCC

31.

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iv. The alleged travel made by the accused/convicts between

Delhi and Jaipur has also not been conclusively proved. No

CCTV footage and no call details were produced from the

seized mobile from the accused in order to support the

alleged travel made on 11.05.2008 or 13.05.2008.

v. The email allegedly sent by the accused assuming

responsibility for the blasts to the media houses, including

India TV and Aaj Tak, and to Mr. A.K. Jain, then ADG,

Rajasthan Police on 14.05.2008, was neither supported by

the mandatory certificate as required under Section 65B of

Evidence Act nor was it corroborated by the statements of

Mr. A.K. Jain, Mr. Prakash Tandon or other people from the

media houses who received such email. In the absence of

mandatory certificate as required under Section 65B of the

Evidence Act, as held by the Apex Court in Arjun Panditrao

Khotkar vs. Kailash Kushanrao Gorantyal and Ors.: (2020)

7 SCC 1, and in the absence of corroborative statements of

Mr. A.K. Jain, Mr. Prakash Tandon or other people from the

media houses, the email relied upon by the prosecution is

also an inadmissible piece of evidence. Further, even the

header and tail of the email are not proper. In a nutshell, qua

email, requisites of Section 88A of the Evidence Act read

with Section 65B of the Evidence Act and Section 2 of the

I&T Act are not followed and therefore, adverse inference

under Section 114(g) of the Evidence Act has to be drawn.

vi. It is the case of the prosecution that the accused/convicts

allegedly sent the email from ‘Naveen Café’, operated by Mr.

Madhukar Mishra. However, the relevant CPUs and the

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relevant register/record were never seized and examined.

The site plan prepared is also not reflecting the existence of

the relevant CPU system. All this added with the fact Mr.

Madhukar Mishra was not present on the spot at the relevant

time casts a shadow of a doubt.

vii. The Investigation Agency have also failed to impound/seize,

at the initial stage of the investigation, the relevant bill

books from the bicycle vendors who allegedly sold the

bicycles, which were used in the explosions, to the

accused/convicts. The bill books were a substantial piece of

evidence and could have been relied upon under Section 34

of the Evidence Act. Further, Mr. Dinesh Mahawar, the mistri

at the Anju Cycle Shop, who assembled/fixed the bicycles

was also not examined. Also, the invoices and the bill books

that were produced before this Court appeared to be

tampered with, which makes the same a weak evidence.

viii. There was no scientific evidence examining or

comparing the ball bearings seized from the site of blasts to

that seized from the shop of Mr. Subhash Chandra. There

was a mismatch in the size of ball bearings which were

produced and which were recovered from the site, which has

created a doubt and there is no further investigation by the

prosecution on the same.

ix. The Test Identification Parade (in short “TIP”) is also vitiated

for non-compliance of the Rajasthan Police Manual and

Rules. There was a clear violation of Rule 7.31 as the TIP

was conducted in the presence of the Investigating Officer,

which is apparent from the statements made in the cross

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examination by Mr. Bhanwar Singh and Satyendra Singh

Ranawat as also by the prosecution witness Laxman Jajhani,

Prakash Sain and Lalit Lakhwani. The Jail Registrar has also

given testimony that the Investigating Officer was present

along-with the witnesses in Jail. The non-compliance of

necessary provisions for conducting TIP were overlooked

which has vitiated the entire procedure. Further, the TIP was

also conducted after a lapse of substantial period of time and

it is likely that the witness may have forgotten the features

of the accused and thus it was very likely that mistakes

might have been committed. Reliance in this regard is placed

on Apex Court judgment of Wakil Singh and Ors. vs. State of

Bihar: 1981 (Supp) SCC 28.

x. The prosecution has also failed to produce/examine some of

the key witnesses. The most crucial example of this is the

absence of examination of Mr. Rajendra Singh Nain, who

allegedly conducted the entire investigation with cycle shop

vendors. Other important witnesses who were not examined

includes Mr. A.K. Jain, Mr. Prakash Tandon or other people

from the media houses who allegedly received the email, Mr.

Dinesh Mahawar, the mistri who allegedly assembled/fixed

the bicycle, and the handwriting expert on whose opinion

reliance was placed upon by the prosecution.

4. Having regard to the totality of circumstances and the

evidence on record, it is difficult to hold that the prosecution had

proved the guilt of the accused by adducing cogent and clinching

evidence. As per the settled legal position, in order to sustain

conviction, the circumstances taken cumulatively should form a

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chain so complete that there is no escape from the conclusion that

within all human probability, the crime was committed by the

accused only and no one else. The circumstantial evidence must

be complete and incapable of explanation of any other hypothesis

than that of the guilt of the accused and such evidence should not

only be consistent with the guilt of the accused but should be

inconsistent with his innocence. As held by the Apex Court in

Rahul vs. State of Delhi, Ministry of Home Affairs and Ors.:

(2023) 1 SCC 83, the prosecution has to bring home the charges

levelled against the accused beyond reasonable doubt. In the

present case(s), the prosecution has failed to do so, resultantly,

the Court is left with no alternative but to acquit the accused. It

may be true that if accused(s) in a heinous crime go unpunished

or are acquitted, a kind of agony and frustration may be caused to

the society in general and to the family of the victims in particular,

however the law does not permit the Courts to punish the accused

on the basis of moral conviction or on suspicion alone. No

conviction should be based merely on the apprehension of

indictment or condemnation over the decision rendered. Every

case has to be decided by the Courts strictly on merits and in

accordance with law without being influenced by any kind of

outside moral pressures or otherwise.

5. The Court is constrained to make these observations as the

Court has noticed, as mentioned above, many glaring lapses

having occurred during the course of the investigation. It is noted

by this Court that the Investigation Agency has miserably failed in

the discharge of their duties; they have performed poorly, the

investigation was not only flawed but was also shoddy and the

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provisions of law as well as their own rules were overlooked. It is

also observed by this Court that the Investigating Agency lacked

the required legal skills as they were not aware about the

statutory pre-requisites and mandatory requirements. They have

approached this case in a callous manner i.e. unbecoming of the

members of uniformed posts. The approach of the Investigation

Agency was plagued by insufficient legal knowledge, lack of proper

training and insufficient expertise of investigation procedure,

especially on issues like cyber crimes and even basic issues like

admissibility of evidence. The failure on the part of the

Investigation Agency has frustrated the case of the prosecution

and the evidence so recorded is not fulfilling the chain of evidence.

6. Though the efforts of the arguing counsel, Ms. Rekha

Madnani, Addl. Govt. Advocate, have to be appreciated, but it is

also glaringly obvious that, in the present case, no integrated

approach was adopted by the State. It was also admitted in

written submission that since blast matter was first of its kind,

certain technical errors were there on the part of the State to

carry out the investigation and therefore, the seizures, non-

production of evidences, non-production of material witnesses etc.

have taken place.

7. Under Schedule-7 of List-II of the Constitution of India, the

police is a subject governed by the State whose primary role is to

provide security for the people, to investigate the crime, and to

maintain law and order. It is indeed true that they have to be

given operational freedom to carry out their role and responsibility

but while discharging this important public duty, the

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police/investigation agency may be held publicly accountable for

their poor performance. The police/investigation agency is

expected to perform their duty in a very cautious, sincere,

devoted, diligent manner in accordance with law as per the

statutory mandate and in accordance with settled position of law.

It is duty of the police/investigation agency to secure and record

the complete evidence, to investigate in a sincere manner, to

identify the culprits/accused, frame charges and assist the

prosecution. However, in the instant case, the investigation agency

has utterly failed to do so. This Court has no hesitation to hold

that the investigation was flawed, shoddy and there were lapses

on the part of the investigation team. The Apex Court has time

and again, more particularly in Gajoo Versus State of

Uttarakhand: (2012) 9 SCC 532 and Dayal Singh and Ors.

Versus State of Uttaranchal: (2012) 8 SCC 263, held that in

criminal case of heinous nature, if the investigation is

shoddy/flawed which resulted from a callous, lethargic and

negligent approach adopted by investigation agencies, then it will

be the duty of the Court to pass appropriate strictures and/or to

give appropriate directions as the occurrence of crime is a breach

of public right which affects the whole community and is harmful

for the society in general.

8. For the reasons stated above, we hold that the Investigation

Agency in the given case should be made responsible/accountable

for their negligent, cursory and inefficient actions. In the given

case, for the reasons stated above, in spite of the case being of

heinous nature, 71 persons losing their lives and 185 persons

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sustaining injuries, causing unrest in the lives of every citizen, not

just in the city of Jaipur, but all across the country, we deem it

appropriate to direct the Director General of Rajasthan Police to

initiate appropriate Enquiry/Disciplinary Proceedings against the

erring officers of the Investigating Team.

9. Before parting, it must be added that the Apex Court, in the

celebrated judgment of Prakash Singh and Ors. vs. Union of India

(UOI) and Ors.: (2006) 8 SCC 1, had contemplated formation of

a ‘Police Complaints Authority’ which is still not adequately

constituted in the State of Rajasthan. This case is a classic

example of institutional failure resulting in botched/flawed/shoddy

investigation. We fear this isn’t the first case to suffer due to

failure of investigation agencies and if things are allowed to

continue the way they are, this certainly won’t be the last case in

which administration of justice is affected due to shoddy

investigation. Therefore, we direct the State, the Chief Secretary

in particular, to look into the matter, which is in the larger public

interest.

(SAMEER JAIN),J (PANKAJ BHANDARI),J

SUNIL SOLANKI /PS

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