Ordering the release of a man who has been in jail for 24 years, serving a life sentence in a dacoity case, a division bench of the Allahabad High Court termed the trial court’s judgment an error.
It stated the appellant, Azad Khan, was convicted merely on his confessional statement before the court during the framing of charges while the prosecution failed to produce any incriminating evidence or an eyewitness to corroborate his involvement in the crime.
The bench of Justice J J Munir and Justice Sanjiv Kumar stated in the order that the trial court did not take note of the fact, as the record shows, that “the appellant moved as many as seven confession applications between 24.10.2001 (the date of framing of charges) to 05.02.2002 (date of judgment) before the court, and a glance at these applications shows that the appellant expressed fear of being killed by the informant, in collusion with the police, as and when he is released from jail. He prayed that he be permitted to remain in jail to save his life.”
“… we come to the conclusion that the learned trial court has erred in convicting the appellant, as the prosecution has miserably failed to connect the appellant with the offence in question and to prove the offence beyond reasonable doubt. Thus, the conviction of the appellant solely on the admission of guilt in his statement under Section 313 CrPC is not sustainable. In view of the above, instant criminal appeal is allowed. We set aside the impugned judgment and order dated 05.02.2002 passed by the trial court and acquit the appellant, Azad Khan, of the charge under Sections 395 and 397 IPC,” the bench ordered.
The case pertains to an incident of dacoity at the house of one Om Prakash, a resident of Katra in Mainpuri, on October 29, 2000.
The complainant had alleged that a gang of 10-15 dacoits barged into his house, stole valuables, and opened fire while fleeing, injuring some villagers who had gathered after the family raised an alarm.
The complainant and the villagers claimed to have identified seven assailants — including Khan, who belongs to the same village. The chargesheet was filed against these seven.
As the trial began at the court of the Additional Sessions Judge, Mainpuri, on charges of dacoity (IPC 395) and dacoity with an attempt to murder (IPC 397), Khan moved a confession application before the court. The trial court framed charges under sections 395 and 397 IPC against him and he admitted his guilt. The court observed that the confession was conditional and, therefore, directed the trial to proceed.
According to the order, Khan’s statement was recorded under Section 313 CrPC in which he said he had voluntarily submitted the confession application and admitted to his involvement in the said offence.
The trial court observed that the accused was one of the members of the gang of dacoits. He was identified by the informant and other witnesses by the light of a torch and a lantern. Upon this admission, the court found him guilty of offence and convicted and sentenced him to life under Section 395 and for seven years imprisonment under Section 397 of the IPC to run concurrently.
What the HC said
While going through the record, the division bench observed, “It is settled law that the burden of proof lies upon the prosecution to prove their case beyond reasonable doubt. In the instant case, the prosecution has examined P W1 (prosecution witness 1) alone, Constable Iqbal Singh in evidence, who is a formal witness. He has proved the copy of the FIR and the chargesheet as secondary evidence. The prosecution has not produced the informant or any other witness to prove the facts of the case in support of the charge. Thus, technically there is no evidence produced by the prosecution to prove their case.”
The bench further observed, “The law on the issue can be summarised to the effect that a statement under Section 313 CrPC is recorded to meet the requirement of the principles of natural justice, as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 CrPC cannot be used to fill up gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and, therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution.”
The court stated, “In case the prosecution’s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 CrPC is not recorded after administering oath to the accused. Therefore, it cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established, and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become a witness against himself.”
The bench also noted that the accused was deprived of a fair trial.
“It is also relevant to note that the record does not show that the appellant had the assistance of an advocate to defend [him]. Also, there is nothing to disclose that he was offered and provided any legal aid, which was a violation of his right to fair trial guaranteed under Article 21 of the Constitution, besides being a violation of Section 304 CrPC Thus, the appellant was also deprived of a fair trial in this case,” the bench stated in the judgment.
The bench, in the order, stated, “Thus, the sad part of the matter is that the appellant is incarcerated in jail for almost 24 years, in a case in which there was no evidence against him and his admission of guilt in his statement under section 313 CrPC was not only under fear to save his life from the informant, which went unnoticed by the trial court, but also, if treated as one made without fear, not sufficient to find a conviction and sentence, in absence of any incriminating evidence adduced by the prosecution.”
Issuing further directions, it said: “The appellant, Azad Khan is in jail. He is directed to be released forthwith, if not wanted in any other case.”
While many questions remain, this judgment is a welcome addition to the rapid expansion of litigation and judicial engagement with live-in relationships (File photo) 
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