"Extra Judicial Confession To A Stranger Improbable" - Bombay High Court Acquits Waiter Disbelieving Murder Confession To Customer

A division bench of Justices Sadhana Jadhav and Prithviraj Chavan, while acquitting an accused convicted in 2010 for Murder, observed, "Extra Judicial confession necessarily is to be made to a person in whom the maker of the statement reposes faith. Moreover, the accused had given graphic details of the act he committed, including the role of each of the accused persons and how they had killed both the deceased. It is rather tough to accept that the accused would make an extra-judicial confession to a stranger, passing by the road, who is only acquainted."

Among other evidence, the prosecution had cited extra-judicial confession by accused Mansoorali Khan to one of the witnesses as an important piece of evidence as the case was based on circumstantial evidence. The defence had argued that the confession would not inspire confidence as Mansoorali had "only stray acquaintance" with the witness. The prosecutor defended the confession before the High Court.

The court accepted the defence's argument and observed that it was an admitted fact that the witness Mansoorali was working as a waiter in a hotel which was visited by the witness Jilani Mirza once in a week. "There was no reason for accused No. 1 to repose faith in the customer of the hotel," the court observed. The confession was allegedly made around 11am the very next day after the incident.

The court cited observations from Supreme Court judgements in cases of Balwinder Singh vs State of Punjab and State of Rajasthan vs Rajaram on the point of extra judicial confession and observed that this was not a fit case where implicit reliance could be placed on the extra judicial confession for upholding the conviction. "It is also clear that there is no independent corroboration to the alleged extra judicial confession. The manner in which it is said to have been made appears to be improbable and imprudent," the bench added.

The court was hearing an appeal filed by Mansoorali Khan, Shahjad Tashrif and Arman Khan, against conviction for a double murder and life sentence. The incident was of May 2006 registered at Trombay Police Station. The prosecution had examined 16 witnesses against the accused after which the trial court pronounced them guilty under sections 302 and 201, both read with section 34 of the Indian Penal Code in July 2010.

They were convicted for killing one Dilshad Khan (who was cousin of all the accused) and one Suresh Murav, who used to work in the shop which was being handled by Dilshad as his uncle who owned the shop was away. There was alleged to be a history discord between Dilshad and the accused as Mansoorali was allegedly in love with Dilshad's sister but the family was against his marriage with her. Murav was there in the shop at the ground level when the accused allegedly had an argument with Dilshad and killed him at the mezzanine floor inside the shop, therefore, Murav too was killed.

The High Court observed that the motive (Mansoorali's wish to get married to Dilshad's sister) was not proved as Dilshad's brother had turned hostile during the trial. Additionally, an eyewitness who claimed to have seen the three accused at the shop was disbelieved and other circumstantial evidence too were not strong enough. Therefore, the High Court observed that while an accused can be convicted on the basis of an extra judicial confession, it needed to inspire confidence, which, in this case, it did not.

Case Title: Mansoorali Khan Ahmed Khan vs State of Maharashtra

Appearance: Mr. M M Khokhawala a/w Ms. Megha Puralkar, advocate for appellant No. 1; Ms. Devyani Kulkarni, advocate appointed for other appellants; Ms. G P Mulekar, APP for State