Law Web: Whether confession recorded by court in Hindi language of pakistani National is valid?

With these principles in mind, we now turn to the requirements

of Rule 15(1) of TADA Rules and the facts in the matter. Rule 15(1)

stipulates that the confession “shall invariably be recorded in the

language in which such confession is made and if that is not

practicable, in the language used by such police officer for official

purposes or in the language of the Designated Court ……”. The

expression “invariably” itself suggests that the requirement under the

Rule is discretionary and not mandatory. The record in the present

matter is very clear that the confessing accused Ghulam Nabi was

produced before PW1 S.K. Bhatnagar on 16.12.1995, was given

statutory warning and time to reflect. Everything was explained to

him and only thereafter his thumb impression was taken. On the next

occasion when the confessing accused was again produced before the

witness, soon after the recording of the confession it was again

explained to him, read over and only thereafter the thumb impression

was taken. At no stage during the recording on these two occasions,

nor at the stage when the witness was in the box, there is anything on

record, or even a suggestion that the confessing accused did not

understand or was not made to understand the contents of the

confession. The contents of the confession also disclose that many of

the assertions are personal to the confessing accused which could only

be gathered after due conversation with the Recording Officer.

The language used as a means of communication between the

confessing accused and the recording officer being Hindi or

Hindustani, such recording of confession in Hindi language is

completely in conformity with the requirement of the Rule. The

conclusion drawn by the trial court that Ghulam Nabi being Pakistani

national his language must be Urdu and therefore the recording of the

confession in a language other than Urdu, must be held to be not in

conformity, is wrong. Nothing has been placed on record that the

confessing accused did not understand the line of questioning or that

he was not made to understand the contents of the confession after the

recording was complete. In our view the assessment made by the trial

court in this behalf is completely incorrect and against the record.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1743/2009

State of J&K

Wasim Ahmed Malik @ Hamid and another.

Citation; (2015)8 SCC465

1. This Appeal under section 19 of the Terrorist and Disruptive

Activities (Prevention) Act 1987 (hereinafter referred to as the Act)

challenges the judgment and order dated 02.03.2009 passed by the

third Additional Sessions Judge i.e. the Designated Court under the

Act in File No. 26/Challan, acquitting the respondents of the offences

under sections 3 and 4 of the Act, section 120-B read with sections

302, 307 and 34 of Ranbir Penal Code and sections 4 and 5 of the

Explosives Substances Act, 1908 arising out of FIR No. 12 of 1995. Page 2

2. On the occasion of celebration of Republic Day on 26.01.1995

at about 10:20 a.m. in Maulana Azad Memorial Stadium, Jammu,

General KV Krishna Rao, Governor of Jammu and Kashmir was

addressing a huge gathering of about 40,000 people including high

dignitaries, VIPs, Senior Officers of the Govt., leaders of political

parties and respectable citizens when three powerful bomb explosions

took place at the site of public address system, near the dais and on

the main road, outside the stadium resulting in killing of eight

persons, and in causing grievous injuries to eighteen persons and

disruption of the celebrations. Soon after the incident FIR No. 12 of

1995 dated 26.01.1995 of PS Nowbad, Jammu (J&K) relating to said

bomb blasts was registered. At the request of the Government of

Jammu and Kashmir, the investigation was transferred to Central

Bureau of Investigation (C.B.I.) vide notification dated 31.01.1995

and Regular Case No. RC1(5)/95-SIUV was registered in CBI on

31.01.1995.

3. After investigation was taken over by CBI, one Mohd. Irfan

was arrested on 07.04.1995. On 09.04.1995 he made disclosure

statements leading to certain recoveries. On 24.04.1995 said Mohd.

Irfan made a confessional statement which was recorded by PW2

Sharad Kumar, S.P. CBI, under section 15 of the Act, inter alia, to the

following effect:

a) Accused Mohd. Irfan along with Maj Tariq of ISI,

Pakistan, Ahmed Hassan, Commander of HM,

Muzaffarabad, Mebhoob-ul-Haq, Commander of HM,

Sialkot, Amir-ul-Haq, Naib Commander, HM and Zia

Kashmiri and others unknown had assembled in the

office of Jamait-e-Islami, Model Town, Sialkot, Pakistan

on 26.12.1994 and hatched a conspiracy to kill Governor,

J&K, Senior officers of the Government and other

persons with a view to strike terror in Jammu city on the

occasion of Republic Day Celebrations. In furtherance of

the said conspiracy, accused Mohd. Irfan,

Menboob-ul-Haq and Ahmed Hassan visited the office of

ISI situated near village Langaryali, Sialkot Cantt.

Pakistan on 26.12.1994 and held a meeting with Major

Tariq, Major Ibrahim, Captain Farhan, Subedar Anwar of

ISI, Pakistan and Wasim Ahmed @ Hamid S/o

Jallaluddin Malik R/o Asthan Mohalla, Kishtawar, J&K

and hatched the plan. In order to achieve the object of the

aforesaid criminal conspiracy, they decided to carry two

pre-set time bombs across the border to Jammu for

planting the same, one near the dais and the other near

the pavilion of MAM Stadium Jammu and deputed

Mohd. Irfan and Ghulam Nabi for this task.

b) On 23.12.1994 in the ISI Office, Sialkot at 11:00

a.m. Mohd. Irfan and Wasim Ahmed were imparted

knowledge about the bombs and their functioning and

operations, which were to be planted in the MAM

Stadium. They were also issued instructions to protect the

bombs from water and to plant them in the Stadium after

the night would set in, to take two detonators for each

bomb, to carry the Khurpa for digging the pits, and not to

leave any clue of the planting of the bombs at the site.

They were also told that the bombs were pre set so to

explode at the time of the Republic Day function on

26.01.1995. Capt. Farhan gave Rs. 3,000/- each to Mohd.

Irfan and Wasim Ahmed and Rs. 2,000/- to Ghulam Nabi

in Indian Currency and also a sack to Mohd. Irfan

wherein he put his boots, trouser, khurpa and pistol.

Major Ibrahim provided one time bomb of 5 Kg each to

Mohd. Irfan and Wasim Ahmed duly wrapped in black

polythene and green coloured sacks. All of them left ISI

Office, Sialkot and reached Check Post Jhumian at about

10:00 p.m. on 28.12.1994. Subedar Anwar and

Mahboob-ul-Haq returned to Sialkot, while Mohd. Irfan,

Wasim Ahmed and Ghulam Nabi crossed the border and

entered into Indian Territory concealed the bombs and

khurpa near River Tawi, outside Jammu city.

c) On 30.12.1994 Mohd. Irfan, Wasim Ahmed and

Ghulam Nabi went to a park where Ghulam Nabi stayed

behind while Mohd. Irfan and Wasim Ahmed went to

MAM Stadium where Wasim Ahmed pointed out to

Mohd. Irfan a place near the dais and also place inside

the fenced area of north Pavilion where bombs were to be

planted. On 30.12.1994 at about 7:45 p.m., Mohd. Irfan

and Wasim Ahmed took out two explosive devices and

khurpa and left for MAM Stadium leaving Ghulam Nabi

there. Both carried one explosive device each and entered

4Page 5

into the stadium along with ‘khurpa’. Inside the stadium,

they connected detonators and batteries to the device and

planted two explosive devices; one near the dais and

other near the fenced area of the Northern Pavilion after

digging the pits for each bomb. After planting the bombs,

they filled both the pits with earth and made shoe marks

thereon to avoid suspicion. Thereafter, both left for Tawi

Bridge. Mohd. Irfan concealed the ‘khurpa’ in the bushes

near Tawi Bridge. Thereafter, both Mohd. Irfan and

Wasim Ahmed contacted Ghulam Nabi and all three

reached Pakistani Check Post Jhumian after crossing the

international border from where they were taken to the

ISI Office Sialkot. Maj. Tariq, Maj. Ibrahim, Maj. Aamir,

Capt. Farhan praised Wasim Ahmed and Mohd. Irfan for

accomplishing the task. As desired by Captain Farhan,

Subedar Anwar paid Rs. 5,000/- to Mohd. Irfan for the

work done by him.

d) On 03.01.1995 said Mohd. Irfan and Wasim

Ahmed were again deputed by Mahboob-Ul-Haq to plant

one time bomb of 10 Kg. and two bombs of 5 Kg. each

outside MAM Stadium, Jammu and pursuant thereto they

dug a pit on the main road leading to that stadium and put

the bomb weighing 10 Kg. on 09.01.1995. The other two

bombs of 5 Kg. each could not be put because of rains,

which bombs were then concealed near Tawi River.

e) On 26.01.1995 Mohd. Irfan, Mahboob-ul-Haq,

Aamir-ul-Haq, Amzad and 2/3 other Kashmiri boys were

present in the office of Jamait-e-Islami, Sialkot. They had

waited for the news of bomb explosions, killing of VIPs

5Page 6

and general public in Jammu. At about 12 noon they

received news about the explosions in MAM Stadium, in

which lot of persons had been killed and several other

injured. After the incident, Maj. Tariq, Capt. Farhan,

Subedar Anwar called Mohd. Irfan, Wasim Ahmed and

Mahboob-ul-Haq to ISI Office, Sialkot and praised them

for planting the bombs and declared that their mission

had been successful even though the Governor of J&K

had providentially escaped. On 30.01.1995 Mohd. Irfan,

Wasim Ahmed and Mahboob-ul-Haq visited office of

Jamai-e-Islami, Muzaffarabad and met Salauddin, Chief

of the Hizbul Mujahideen who declared that their mission

was to spread terrorism in J&K which got fulfilled with

the bomb explosions in MAM Stadium. Salauddin

awarded one shield and Rs. 10,000/- each to Mohd. Irfan

and Wasim Ahmed.

4. After completion of investigation, charge sheet was filed on

28.09.1995 in the Court of the Special Judge, Designated TADA

Court, Jammu (J&K) u/s 120-B RPC r/w section 302, 34, 307 RPC, 4

and 5 of the Explosives Substances Act and section 3(2), 4 and 6 of

the Act. The charge sheet was filed against Mohammad Irfan @

Anwar, a Pakistani National and other absconding accused. While the

matter was pending before the Trial Court, Ghulam Nabi Guide was

arrested by J&K police on 25.10.1995. Upon CBI making an

appropriate application, custody of Ghulam Nabi Guide was granted

6Page 7

to CBI on 04.12.1995. While in custody, said Ghulam Nabi Guide

made a confessional statement which was recorded by PW1 S.K.

Bhatnagar Superintendent of Police, CBI on 18.12.1995 u/s. 15 of the

Act wherein he confessed about his involvement as also that of Mohd.

Irfan, Wasim Ahmed Malik @ Hamid, Major Tariq, Major Ibrahim,

Major Amir, Captain Farhan, Subedar Anwar (all of ISI, Pakistan),

Ahmed Hassan, Commander of HM, Sialkot, Amir-ul-Haq, Naib

Commander, HM Sialkot and Zia Kashmiri R/o Kupwara, J&K in the

criminal conspiracy culminating in the explosions at the MAM

Stadium, Jammu 26.01.1955. Supplementary charge sheet was

therefore filed against him. During the pendency of the trial, in a

jailbreak said Mohd. Irfan escaped from high security jail. While the

trial was pending and had reached the concluding stage, another

accused named Wasim Ahmed Malik, who was marked as absconding

accused, was arrested on 15.01.2009. Since according to the

prosecution there was sufficient evidence in the form of confessional

statements of Mohd. Irfan and Ghulam Nabi Guide, said Wasim

Ahmed Malik was supplied with copies of all the relevant material

and produced before the Trial Court. Thus only two accused i.e.

7Page 8

Ghulam Nabi Guide and Wasim Ahmed Malik, present respondents,

were tried while the others remained absconding.

5. The evidence led by prosecution during the trial was to prove

following aspects, namely:-

a) That there were three bomb explosions on

26.01.1995 at 10:20 a.m. at the places in question, i.e.

near the dais and at the site of public address system in

MAM Stadium and on the main road outside the

Stadium.

b) That at the time of such bomb explosions, large

gathering had assembled while the Governor was

addressing on the occasion of Republic Day

Celebrations.

c) That it resulted in death of eight persons and

caused grievous injuries to eighteen persons and

disruption of the Celebrations.

d) That the act in question was a terrorist act, within

the meaning of the Act.

e) That it was an act of conspiracy hatched by the

accused being tried before the court and by the

absconding accused and

f) That the involvement of the accused before the

court was completely made out.

6. Various witnesses were examined and material was produced

by the prosecution to establish its case. Since the aspects (a) to (d)

8Page 9

mentioned in the preceding paragraph were never challenged, we

refrain from dealing with evidence pertaining to said aspects (a) to (d).

Proceeding on the basis that it was a terrorist act, where bomb

explosions were caused with the idea of terrorizing people in general

and those who had assembled there at the gathering in particular,

which resulted in loss of life of eight persons and injured eighteen

persons, we confine the discussion as regards aspects (e) to (f) i.e. the

role of the accused in the act in question. The trial Court had also

confined itself to the question whether involvement of the respondents

had been made out or not.

7. In order to bring home the involvement of the respondents the

prosecution relied upon the confessions of Mohd. Irfan and Ghulam

Nabi recorded under section 15 of the Act. Apart from such

confessions and the statements of these accused leading to recovery of

certain facts, no direct evidence could be placed on record. The

evidence principally relied upon by the prosecution can be

summarized as under:

A) While in custody, accused Mohd. Irfan upon being

interrogated, made three disclosure statements,

“EXPW-BD/2, EXPW-S/3 and EXPW-S/2”. The

9Page 10

testimony of PW86 Harbhajan Singh, Investigating

Officer shows that pursuant to these disclosure

statements two khurpas were recovered and identification

of the shop from where a khurpa was purchased was also

got done. Those khurpas were identified in court. The

factum of such disclosure and consequential recovery

was also supported by panch witnesses PW23 S.K. Sudan

and PW24 Gautam Goyal. PW67 Rajesh Kumar,

Inspector, CBI also testified to similar effect.

B) On 22.04.1995 another disclosure statement

“EXPW-BR” was made by accused Mohd. Irfan leading

to the recovery of a bomb vide Seizure Memo

Ext.PW/BR/1. The evidence of PW86 Harbhajan Singh,

PW67 Rajesh Kumar and panch witness PW26 B.R.

Saraf were relied upon in that behalf.

C) On 22.04.1995 Mohd. Irfan expressed his desire to

confess and was produced before PW2 Sharad Kumar,

Superintendent of Police. PW2 Sharad Kumar gave

warning to the accused that the confession could be used

against him and also gave him time to reflect. The

10Page 11

accused was again presented before the witness on

23.04.1995 on which date the confessional statement

Ext.PW-SK-3 of accused Mohd. Irfan was recorded by

PW2 Sharad Kumar. The gist of the confession and the

facts as disclosed therein are dealt with earlier. The

confession of Mohd. Irfan clearly stated about the roles

of the confessing accused as well as the co-accused.

D) After the arrest of Ghulam Nabi Guide, his custody

was granted to CBI on 04.12.1995. He having expressed

his desire to make a confessional statement, said Ghulam

Nabi Guide was produced before PW1 S.K. Bhatnagar,

Superintendent of Police, CBI on 16.12.1995. The

witness administered statutory warning to the accused

and also gave him time to rethink. The questions were

put to the accused which were replied by him and true

record thereof was made by the witness in Hindi.

According to the witness he had explained everything to

the accused and after recording of the statement, thumb

impression of the accused was taken on the statement.

The accused was again produced before the witness on

11Page 12

18.12.1995 and having expressed the desire to make a

confessional statement, his statement was recorded by the

witness. After recording of the statement, it was read

over and the accused was made to understand the

statement whereafter admitting the statement to be true

the accused put his thumb impression.

E) The confessing accused Ghulam Nabi Guide was

produced in the court of the Chief Judicial Magistrate,

Jammu on 19.12.1995. The confessional statement in

original in a sealed cover was also produced, for its

onward submission to the Designated Court, Jammu.

The text of the letter was as under:

“Sir,

Kindly find enclosed herewith original statement

(sealed) of accused Ghulam Nabi Guide recorded under

Section 15 TADA Act in case RC. 1(S)/95/SIU.V for

onward submission to the Hon’ble Judge of Designated

Court, Jammu. The accused has also been brought.

Applicant

Sd/-

19.12.95

(S.K. Bhatnagar)

Supdt. Of Police, CBI,

SIC.II, New Delhi.”

F) On the same day, the Chief Judicial Magistrate,

Jammu passed the following order:

12Page 13

“Submitted in original to the Presiding

Officer of Designated Court under TADA.

Sealed envelope is enclosed herewith.”

Sd/-

Chief Judicial Magistrate

JAMMU”

8. The trial court acquitted both the respondents of all the charges

leveled against them. The case of the prosecution as regards

explosion of bombs which resulted in the death of eight persons and

caused serious injuries to 18 persons was not disputed at all.

However, the trial court rejected the evidence regarding confessional

statement of Ghulam Nabi Guide on the ground that the confessional

statement was recorded in Hindi i.e. not in the language of the

accused. It observed that the safeguards provided in Rule 15 of the

Rules made under the Act were not adhered to and therefore, the

confessional statement of accused Ghulam Nabi Guide was required

to be discarded. The relevant observations of the trial court in this

behalf were as under:

“In the present case, the confessional

statement has been recorded in Hindi and not

in the language of accused. PW Habhajan

Ram who is the Investigating Officer stated

that he cannot say whether accused Ghulam

Nabi knows Hindi or not. In any case, accused

Ghulam Nabi being a Pakistan national, his

13Page 14

language cannot be Hindi. Even so, PW Sushil

Kumar who is the recording officer of the

confessional statement of accused Ghulam

Nabi has stated that accused had given the

statement in Urdu and he had written the

same in Hindi. No reason has been given by

the said witness as to why it was not practical

to record the confession of accused in Urdu.

Even so, the record does not show that Hindi

is the language used by PW Sushil Kumar for

official purposes. Rather, the record would

show that the said witness Sushil Kumar uses

English languages for official purposes. This is

apparent from the letter EXPW-SK/III written

by him to the CJM while forwarding the

confession to the Designated Court. And

finally, the language of the Designated Court

is Urdu or English.”

9. The trial court further observed that as apart from such

confessional statement there was nothing else against said Ghulam

Nabi Guide, the accused was entitled to be acquitted. The other

accused, namely, Wasim Ahmed had not given any confessional

statement and the case against him completely depended upon the

confessional statement of co-accused Ghulam Nabi Guide.

Consequently accused Wasim Ahmed was also held entitled to be

acquitted. The trial court thus acquitted both the accused vide its

judgment and order dated 02.03.2009, which is challenged in the

present appeal.

14Page 15

10. The record of the present appeal indicates that respondent

Wasim Ahmed Malik was duly served but chose not to engage any

lawyer. It was reported that respondent Ghulam Nabi Guide was

residing in Pakistan and was served through the concerned office of

the Government of India. However, no appearance was entered on

behalf of Ghulam Nabi Guide, though duly served. Consequently, Mr.

Dushayant Parashar, learned Advocate was requested to appear for

respondent Ghulam Nabi Guide under instructions from the Supreme

Court Legal Services Committee. Since there was no appearance for

respondent Wasim Ahmed Malik by order dt. 12.03.2015, Mr.

Dushayant Parashar was requested by this Court to represent said

Wasim Ahmed Malik as amicus curiae. We must record our

appreciation for the assistance rendered by Mr. Dushyant Parashar.

11. Appearing in support of the appeal Mr. P.K. Dey, learned

Advocate submitted:

(a) Confession of accused under Section 15 of the Act is a

substantive piece of evidence and can form the foundation for

conviction of an accused for the offences punishable under the Act.

15Page 16

(b) Such confession, subject to the conditions stipulated in Section

15 of the Act itself, can also be read against the co-accused and form

basis for his conviction.

disclosed that the entire statement was read over to the confessing

accused and only thereafter thumb impression of the confessing

accused was taken under the statement. Since the language used

during such conversation was Hindi which the confessing accused

could understand, the recording of the statement was done in Hindi

and such recording was completely in conformity with Rule 15 of the

Rules framed under the Act.

(d) Lastly, soon after recording of the confession, the confessing

accused was produced before the Chief Judicial Magistrate. The

Confessional statement in a sealed cover was also produced for

onward transmission to the Designated Court. Thus, the guidelines

also stood completely complied with.

Mr. Dushayant Parashar, learned amicus curiae attempted to

support the judgment under appeal. The learned amicus curiae fairly

accepted that the document recording the confession itself disclosed

that the entire statement was read over and explained to the confessing

16Page 17

accused. He further fairly accepted that there was no effective cross

examination on this issue when PW1 S.K. Bhatnagar was in the box.

12. Section 15(1) of the Act expressly makes confession of an

accused recorded by a Police Officer admissible in a trial of such

person, co-accused, abettor or conspirator for an offence punishable

under the Act. While upholding the constitutional validity of Section

15(1) of the Act, this Court in Kartar Singh vs. State of Punjab1

specifically referred to the statutory obligation in Section 15(2) of the

Act and conditions imposed in Rule 15 of the TADA Rules in paras

258 and 259 respectively and then proceeded to lay down certain

guidelines in para 263.

The extent of admissibility of such confession under Section

15(1) of the Act as against a co-accused was considered by this Court

in State vs. Nalini & Others2

. Wadhwa J. in para 424 observed as

under:

“424. In view of the above discussions, we hold the

confessions of the accused in the present case to be

voluntarily and validly made and under Section 15 of

TADA confession of an accused is admissible against a

co-accused as a substantive evidence. Substantive

(1994)3 SCC 569

(1999)5 SCC 253

17Page 18

evidence, however, does not necessarily mean substantial

evidence. It is the quality of evidence that matters. As to

what value is to be attached to a confession will fall

within the domain of appreciation of evidence. As a

matter of prudence, the court may look for some

corroboration if confession is to be used against a

co-accused though that will again be within the sphere of

appraisal of evidence.”

Quadri J. struck a similar note of caution in para 706 as under:

“706. It is also to be borne in mind that the evidence of

confession of a co-accused is not required to be given on

oath, nor is it given in the presence of the accused, and its

veracity cannot be tested by cross-examination. Though

the evidence of an accomplice is free from these

shortcomings yet an accomplice is a person who having

taken part in the commission of offence, to save himself,

betrayed his former associates and placed himself on a

safer plank — “a position in which he can hardly fail to

have a strong bias in favour of the prosecution”, the

position of the accused who has given confessional

statement implicating a co-accused is that he has placed

himself on the same plank and thus he sinks or sails

along with the co-accused on the basis of his confession.

For these reasons, insofar as use of confession of an

accused against a co-accused is concerned, rule of

prudence cautions the judicial discretion that it cannot be

relied upon unless corroborated generally by other

evidence on record.”

13. It is settled position in law that a confession recorded under

Section 15(1) of the Act in accordance with statutory requirements

and in keeping with the guidelines is admissible against the maker, his

co-accused, abettor or conspirator in a trial for an offence under the

Act, subject to the condition stipulated in the proviso to Section 15(1).

Such confession is taken as substantive piece of evidence and can

form the foundation or basis for conviction of the maker, co-accused,

abettor or conspirator. However, the note of caution struck by this

Court is, insofar as use of confession of an accused against a

co-accused is concerned, rule of prudence would require the Court

not to rely thereon unless corroborated generally by other evidence on

record.

14. With these principles in mind, we now turn to the requirements