Safiya Malik

“A confession must reflect informed consent on the part of its maker fully conscious of the consequences of giving an informed consent.” With this observation, the High Court of Jammu & Kashmir and Ladakh at Srinagar examined the legality of confessional statements forming the foundation of a murder conviction and found them inadmissible. The Division Bench comprising Justice Atul Sreedharan and Justice Rajesh Sekhri held that the evidentiary basis relied upon by the Trial Court lacked the legal validity necessary to sustain the convictions. The appeals were accordingly allowed in connection with proceedings arising from FIR No. 96/2012 registered at Police Station Awantipora, concerning allegations of murder and destruction of evidence under the Ranbir Penal Code.

The trial, which concluded after nearly eight years, originated from an FIR lodged on 30 June 2012 based on anonymous source information. The FIR named the four appellants as accused in the alleged murder of Farooq Ahmad Wani, son of appellant Mohammad Akram Wani. The prosecution stated that the deceased was allegedly killed due to a dispute over ancestral property and his body was thrown into a dry well at Kanildar, located in the orchard of Abdul Rehman Wani at Medora.

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The informant in the case remained unidentified throughout the trial, and the FIR was registered prior to the recovery of the deceased’s body. The judgment records: “It is also surprising that purely on the basis of the source information, the FIR for offences u/s. 302 r/w 34 RPC is also registered with the appellants as named accused, even before the body was recovered and the PMR prepared.” It also records: “PW 12 states that this informant is the Namberdar. However, the Namberdar himself states that he heard a rumour that the deceased has been murdered and sent the Chowkidar to verify the veracity of the rumour.”

The police interrogated appellant Akram Wani, who allegedly confessed to the murder in the presence of witnesses. According to the prosecution, his confession led to the recovery of the deceased’s body from a dry well. His son Mohammad Ashraf Wani (A2) also allegedly confessed to the crime and led the police to the recovery of the weapons used, which included an axe and a danda.

The prosecution's case was primarily built upon these confessions and the related recoveries. Twenty-nine of thirty-four prosecution witnesses were examined. Witnesses included seizure witnesses, police personnel, forensic experts, and the doctor who conducted the post-mortem examination. The defence argued that the confessions were not voluntary and were extracted under coercion, and that the evidence did not form a complete chain of circumstances necessary for conviction.

Several witnesses, including PW2, PW3, and PW6, spoke about the alleged pressure on the accused. PW2 stated that members of the appellant’s family were detained at the police station. PW3, though declared hostile, stated: “he gave the statement against the appellants only to escape harassment by the police.” PW6, the Namberdar, stated that family members were detained for fifteen days and added: “none of the accused persons had confessed in his presence.”

The defence submitted that the recoveries were doubtful and did not connect the accused to the offence. It was pointed out that the axe and danda were recovered from a location where the general public had access and that the confessions were not recorded before a judicial magistrate. It was also argued that there were no eyewitnesses and that the circumstantial evidence was inadequate.

The prosecution relied on Sections 302, 120-B, and 201 of the Ranbir Penal Code and supported its case with the confessions under Section 27 of the Indian Evidence Act. The confessions were said to have led to the recovery of incriminating materials and the deceased’s body.

The Court considered whether the statements made by the accused could be treated as valid confessions. It examined the requirements under Article 20(3) of the Constitution and Section 27 of the Evidence Act, observing that any confession must be voluntary and made with a full understanding of its legal implications.

It recorded: “When an accused consents to confess and incriminate himself, such consent must be an ‘Informed Consent’, for which, the accused must possess the ‘Consciousness of Consequence’ in order to give an informed consent.” The Court further stated: “Merely asking the accused whether he is making the confession of his free will without any coercion, is inadequate unless, the accused is also made fully aware of the consequences.”

It elaborated: “A confession must be voluntary…free of coercion or favour…with the knowledge that he could be convicted/punished on the basis of the confession alone.”

The judgment addressed the procedure required for a valid confession under Section 164 of the CrPC, noting that confessions should be recorded by a Magistrate after ensuring the accused is informed of their rights, allowed legal consultation, and is free from any police influence. The Court stated: “Where the accused is indigent, then a lawyer must be made available through legal aid.”

In this case, the Court found that the confessions were recorded while the accused were in police custody, not before a magistrate, and without satisfying the criteria for voluntariness. It recorded: “Thus, this Court holds that the inculpatory part of the 27 memorandum allegedly given by A1 and A2, though in the presence of executive magistrate and the independent witnesses cannot constitute a legally valid confession.”

The Bench further analysed the evidentiary value of the recoveries. The axe and danda allegedly recovered at the behest of A2 contained blood stains of blood group AB. However, the blood group of the deceased was never matched, and the expert (PW32) testified that AB was a common blood group. The Court recorded: “Where the witness says that the blood group AB is common, the same could have been of the accused also, especially A1 who is the father of the victim.”

With regard to the recovery of the deceased’s body, it stated: “Evidence on record has established that even before the police reached the site of recovery with A1, members of the public were already there.” The Court concluded that “the recovery of the human remains of the victim cannot be said to be at the behest of A1.”

The post-mortem report, as well as the testimony of the medical officer (PW31), were examined. The Court noted the absence of clarity regarding the nature and dimensions of the injuries. It recorded: “The postmortem report and the testimony of the doctor is most perfunctory.” The doctor failed to state definitively whether the injuries were caused by a sharp-edged weapon or not.

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The Court concluded that once the confessions were held legally inadmissible, the rest of the evidence did not form a complete chain linking the accused to the crime. It stated: “The substratum of the prosecution’s case disappears and in the absence of any independent and/or alternate evidence to substantiate the case of the prosecution, the case against the appellants fails the test of judicial scrutiny.”

It further held: “The prosecution has not been able to prove the case against the appellants beyond reasonable doubt.”

Accordingly, the Division Bench allowed the appeals and passed the following order: “The impugned judgement of conviction and sentence is set aside. The bail bonds of appellants who are on bail stand discharged. Appellants still undergoing sentence shall be released forthwith.”

Advocates Representing the Parties

For the Petitioner: Mr. S.T. Hussain, Senior Advocate and Ms. Nida Nazir, Advocate, Mr. Rizwan-ul-Zaman, Advocate and Mr. Shafi Bhat, Advocate

For the Respondent:  Mr. Mohsin Qadri, Senior Additional Advocate General and Mr. Taha Khalil, Assisting Counsel

Case Title: Mohammad Akram Wani & Others v. State Through Police Station Awantipora
Case Number: CrlA(D) No. 4/2021 c/w Crl Ref.(L) No. 1/2021 and CrlA(D) No. 7/2021
Bench: Justice Atul Sreedharan, Justice Rajesh Sekhri

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