TMI Blog2006 (12) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... s married and was residing at Jadavpore. Two other sons, namely, Amar Nath Dutta (PW-4) and Samar Nath Dutta (PW-3) were residing in the towns of Chandannagore and Bararast respectively. Arunamoyee Dutta died intestate in April, 1993. Aloke Nath was working with Kolkata Police, whereas Biswanath was employed in the United Bank of India. Biswanath was a bachelor, whereas Aloke Nath is married. Mamata one of the appellants herein, is Aloke Nath's wife. Sister of Mamata and her husband Shib Sankar Roy @ Gobinda @ Babu Roy were also residing on the first floor. Appellants herein are alleged to have entered into a conspiracy to commit the murder of Biswanath on 22.01.1994 at the first floor of the said premises, the details whereof, we would deal with hereinafter. PROSECUTION CASE : Aloke Nath had many vices. He was a spendthrift. He was a womanizer and spent a lot of money in gambling and horse racing etc. He intended to sell the said house property, wherefor he entered into agreements for sale with one Nandlal Singh as also with one Arunmoy Bose. Arunmoy Bose advanced a sum of ₹ 65,000/- to him. Nandlal Singh (PW-15) also had advanced various sums of money to Alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had throttled Biswanath to death. While commotion was on, the officer in charge of the police station was informed by some neighbour of Aloke Nath. While police was coming to the said premises, they met Samar Nath on the way, who was going to inform them about the incident. The police officer came to the said house. Aloke Nath was arrested in the afternoon of 06.03.1994. He was interrogated in the Police Station and was brought back by the police personnel. The other accused were arrested on the next day. Aloke Nath is said to have made a confession at the police station that he had concealed the dead body in a platform (a kind of cistern made of sand and bricks). He pointed towards the said platform, whereupon two labourers and one mason were sent for; forensic experts were summoned. The said cistern was broken and dismantled. Foul smell came out therefrom and a human skeleton lying beneath the same was seen. The skeleton was said to have been identified to be that of Biswanath by Aloke Nath himself, which was seized and sent to morgue. Cause of the death, according to the autopsy report was asphyxia. Aloke Nath also made a confession leading to recovery of certain articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Penal Code and within the cognizance of this Court of Sessions. And I hereby direct that you be tried by the said Court on the said charge. NATURE OF EVIDENCE : Before the learned Sessions Judge, as many as 48 witnesses were examined on behalf of the prosecution. The brothers of Appellant Aloke Nath, viz. Amar Nath and Samar Nath, and Sister Anuradha examined themselves as PWs. 4, 3 and 5 respectively. Son of Amar Nath, Avijit, was examined as PW-6. Witnesses examined on behalf of the prosecution can be sub-divided in three categories, namely, (i) Sale of house, (ii) Tenants at Premises No. 2C, Beadon Street, and (iii) Witnesses who testified about Aloke's character and conduct as also others like Photographer, labourers, Mason etc. We would deal with the depositions of the prosecution witnesses hereafter at an appropriate stage. SESSIONS JUDGE : The learned Sessions Judge by reason of the judgment of conviction and sentence dated 29.08.2003 convicted Aloke Nath, Mrinal Dutta and Gobinda Roy under Sections 302/120B and 302/34 IPC and sentenced them to death. Mamata Dutta was, however, sentenced to suffer imprisonment for life under Section 302/34 IPC and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of his own guilt, the courts below could not have convicted all Appellants under Section 302/34 IPC relying on or on the basis thereof. (v) The purported confession made by Aloke Nath leading to recovery of the dead body and certain articles belonging to Biswanath which had been sold to Gobinda Sarkar (PW-26), did not conclusively lead to the prosecution's case of conspiracy; and no judgment of conviction could have been arrived at solely on the basis thereof, having not been corroborated in any manner whatsoever. (vi) Confession of an accused, even if accepted, must be considered in its entirety and not in pieces (vii) The judgment of conviction could not have been arrived at on the basis of judicial confession made by Mrinal Dutta which has since been retracted and was thus of weak evidentiary value, especially when there was no corroboration thereof (viii) Mrinal Dutta was not put to test identification parade, although Aloke Nath was. His identification in court by the witnesses was of weak evidentiary value and no reliance could have been placed thereupon. (ix) Judicial confession purported to have been made by Mrinal Dutta disclosed that he had been for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure he alleged torture at the hands of PW-44, but PW-44 having not been cross-examined on the said point, the judicial confession was admissible in evidence not only against the maker thereof, but also against the co-accused in terms of Section 30 of the Indian Evidence Act. (ix) Enough materials by way of documentary and oral evidences of the witnesses were brought on records to prove criminal conspiracy showing not only that Mrinal Dutta but also Babu Roy and Mamata Dutta signed various documents executed by Aloke Nath. (x) Judicial confession made by Mrinal Dutta contained vivid description of the manner in which the deceased Biswanath was done to death and his dead body was put in the bedi (platform) in the room occupied by Aloke Nath, the same was sufficient to prove the charge of conspiracy. In any event, involvement of all the accused persons in committing murder of Biswanath and disposing of the dead body has amply been proved. DISCUSSIONS : The incident took place on the night of 22.01.1994. Biswanath was last seen alive by some of the tenants, who were examined viz. Swapan Dutta (PW-18), Bijoy Sharma (PW-19), Albela Sukla (PW-20), and Raj Ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may now notice the various circumstances found to be existing against Appellants as enumerated by the learned Trial Judge and accepted by the High Court. For the aforementioned purpose we may, at the outset notice, the statements of the witnesses whom we have categorized in Category (i). PW-7, Shanker Dey is an attesting witness to the agreement for sale of the house in question with Arunmoy Bose (PW-8). He proved passing of an advance amounting to ₹ 65,000/- to Aloke Nath. Arunmoy Bose who was the intending purchaser and with whom Aloke Nath had entered into an agreement also proved passing of the said consideration to Aloke Nath. Both Shanker Dey (PW-7) and Arunmoy Bose (PW-8) also stated in details the negotiations leading to execution of the said agreement for sale. Sudhakar Singh (PW-10) and Nawratan Singh (PW-16) were brokers. They were employed by Nandlal Singh (PW-15). They have also deposed as to how the transactions relating to sale of the house by Aloke Nath in favour of Nandlal Singh proceeded. They have also proved passing of the amount of advance from time to time by Nandlal Singh in favour of Aloke Nath. Bikash Pal, who examined himself as PW-14 is ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of days. 8. In the morning of 06.03.1994, PWs-3, 4 and 6 reached the place of occurrence and found PW-15 in occupation. On being asked, Aloke Nath replied that Biswanath had left for Barasat and was staying at 11/1, Jhawtola Lane, near Barasat Chowrasta, whereafter they left for the said place. 9. PWs-3, 4 and 6 returned to Premises 2C, Beadon Street and as they did not find existence of the address, they charged Aloke Nath to speak the truth in presence of tenants, local people etc. Aloke Nath then confessed that he had throttled Biswanath to death in the midnight of 22.01.1994 and kept the dead body concealed inside the hosue. 10. On 06.03.1994, O/c Burtolla Police Station received a telephonic message from an anonymous caller about the disturbance in front of the said premises. Police recorded the statement of PW-3, Samar Nath and arrested Aloke Nath. 11. On the basis of the said confession, the bedi was dismantled by mason and labourers PWs-9, 30 and 31 and a human skeletonized body was found, which was identified by Aloke Nath to be of the deceased Biswanath. This fact has been proved by the PWs-3, 4, 6, 9, 15, 18, 19, 23, 30, 46 and 47. 12. PWs-3, 4 and 6 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tan Singh and Nandlal Singh allegedly saw the kacha bedi, as also the objection on the part of Nandlal Singh in regard thereto, to which Aloke Nath responded by promising to dismantle the same, when the sale deed was registered. Re: Circumstances Nos. 5 6 : Publication of advertisement in Anand Bazar Patrika on 31.01.1994 in respect of the transfer of Premise No.2C, Beadon Street, Kolkata (Ex.61) has been proved by Bikash Pal (PW-14), Nandlal Singh (PW-15), intending purchaser; as also Bijit Kumar Basu, General Manager (Law), Anand Bazar Patrika (PW-28). Amar Nath (PW-4), brother of Appellant Aloke Nath, in his evidence stated that he with his brother and sister filed objections before Bikash Pal in respect of the proposed sale. From the evidence of Bikash Pal (PW-14), it further appears that he confronted Aloke Nath with objections of his brothers and sister. Aloke Nath allegedly assured that he would settle the matter with them. Bikash Pal in his deposition further stated that according to Aloke Nath, there was a deed of family dispute. He has also proved that on earlier occasion Aloke Nath had mentioned only about his one brother and sister but the sister was never broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nandlal Singh (PW-15), Swapan Dutta (PW-18) and Bijoy Sharma (PW-19), tenants of the said house. Thereafter Aloke Nath made confession. Aloke Nath made three confessions : (i) confession stating the manner in which the deceased was killed as also burial of his dead body; (ii) confession leading to the recovery of the dead body; and (iii) confession relating to the disposal of the belongings of Biswanath. Relevant portions of the second confession are as under : On the night of 22.01.1994, after strangulating my elder brother Biswanath Dutta to death, I built up kind of a cistern with bricks, sand and cement underneath the cupboard on the southern side of a first floor room of our ancestral home, in which I used to live, and hid the dead body of my elder brother inside it and sealed the cistern, giving it the shape of a masory platform. If I am taken along there I can show that room and the masory platform built inside it. After having buried the dead body of my elder brother Biswanath Dutta into the cistern. The excess brick, sand and cement had been kept under a cot in our house. If I am taken along, I can show them as well. Recorded by me, read-over explained and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Evidence of extravasation on the posterior aspect of oesophaeal 2 x size against 3rd, 4th and 5th cordial vert. Extravasation are more on the right side of midline for both trachea and oesophagus and also other tissue. The extravasation were blakish red in colour. No other injury could be detected ever after careful examination. The right femur was 17.8 , the 12.3 and the right ulna 11.1 . The changes in symphyseal surfact were at part with the mentioned age of 43 years. I preserved stomach with contents both kidneys and liver insaturated solution of common salt. Sample of preservative was preserved. Scalp hair heart were preserved without any preservative, nail cutting preserved tissue from extravagated area preserved. Both preserved. There was no blood of neck for example throttling ante-mortem and homicidal in nature. This is the report which bears my signature. The dead body was also examined by Dr. V.K. Kashyap (PW-41). In his evidence, he opined that the dead body was of a human male, aged about 40-45 years and his height would be around 5' and 6 . Re: Circumstance No.14 : Swapan Dutta (PW-18) was a tenant of the second floor of the premises (pages 109-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and on the following I went to Alok's place. He told me further that he would pay me ₹ 10,000/- more. I said, if I am spared for this, then I am agree to do this . I found Gobindo, Alok, Mamnata the three were sitting at his house. They closed the door after they took me to the room at first floor. Then he, Gobindo, Alok and Mamata said to me, on 22nd January, at night, you will come. Gobindo and Alok will make all the arrangements . While leaving they said, if you don't come, we shall harm you . As usual I came to Alok's house on 22nd January at 10.00 p.m. and saw that Alok, Gobindo, Mamata and two daughters of Alok talking. As I went they let me in and shut the door. As I entered in the room I saw that there was a little brick wall under the cupboard (wall Almirah). There were some cement, sand and bricks on the floor. Just at 10.30 p.m. Biswanath Dutta came to the house. Alok said to Biswanath, the work is going on at the room of second floor. You lie down on the wooden cot at the veranda on the first floor . Biswanath lied down on the veranda. We were sitting inside the room. At about 12/12.30 p.m. two daughters of Aloke were slept. Then Alok came outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing on behalf of Appellants to convey the possibility of the brothers of Aloke Nath implicating him owing to the property, but we can safely ignore the same. The events began from November 1993. It was only Aloke Nath who had asked Mrinal Dutta to sign some blank papers impersonating Biswanath. He was paid a sum of ₹ 5,000/- therefor. On the basis thereof, agreements for sale were executed by and between Aloke Nath and Biswanath with Nandlal Singh. Out of the agreed amount of consideration of ₹ 2,60,000/-, a sum of ₹ 60,000/- was paid to him. A sum amounting to ₹ 30,000/-, ₹ 20,000/- and ₹ 10,000/- were paid on 11.11.1993, 12.12.1993 and 25.12.1993 respectively by Nandlal Singh to him. Although Aloke Nath received a substantial amount, his greed did not end there. He, as noticed hereinbefore, entered into another agreement for sale with Arunmoy Bose (PW-8) who had also paid a sum of ₹ 65,000/- by cheque. He must have spent the entire amount or at least a substantial part of it. Biswanath was allegedly killed on 22.01.1994. The second floor of the house which was in occupation of Biswanath was handed over to Nandlal Singh on 23.01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words be added with which I stabbed A these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. [But see Dhananjoy Chatterjee @ Dhana v. State of West Bengal [(1994) 2 SCC 220 at p.234-235] Therefore, we would take note of only that portion of the confession which is admissible in evidence. Apart from raising a contention that the extra judicial confession had not been recorded in the exact words of the maker thereof, no serious argument has been advanced with regard to its truthfulness or otherwise thereof. It was an oral confession. Evidently, the two brothers of Appellant Aloke Nath, namely, Samar Nath (PW-3) and Amar Nath (PW-4) as well as his nephew Avijit Dutta (PW-6) became highly agitated after being misled by Aloke Nath as he had made wrong statements as regards the whereabouts of Bishwanath. They were also perturbed as the house property was sought to be sold without taking them into confidence. In this context, it is important to revisit the events which took place on and after 31.01.94. Before meeting further demands of Aloke Nath, Nandlal on advice of his advocate Bikash Pal published an advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the dead body recovered was that of Biswanath and it was Aloke Nath who was responsible for his death. He does not dispute that he was a party to the transactions with Nandlal Singh and Arunmoy Bose. His many vices are amply borne out from the materials. His absence from duty 11.01.1994 to 28.01.1994 has also been proved by his colleagues PW-33, PW-34 and PW-35. EXTRA JUDICIAL CONFESSION : If the prosecution witnesses are to be believed that Aloke Nath made an extra judicial confession and furthermore in view of the evidences on record, it has to be held that the same was voluntary in nature. The same having been spontaneous in the form of natural response to a stressful stimulus made at the spur of the moment, we, for the reasons stated hereinafter, do not see as to why the same should be discarded. He was understandably reeling under a great mental strain. He might have killed his own brother, with a view to satisfy his greed of money, but the circumstances clearly demonstrate that he had been pushed to the wall. He knew that his brothers and sister would definitely ask for an explanation as to why without consulting them he tried to sell the house. A 'bedi& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the witness and the other accused person. The court in the said factual backdrop, opined that it was highly improbable that such confession would be made. Heramba Brahma (supra) is not an authority for the proposition that extra judicial confession must pass the test of reproduction of the exact words. The tests laid therein are cumulative in nature. What is necessary for the court is to arrive at the conclusion as to whether such confession has been retracted or not. No suggestion had been given to the witnesses that confession had not been made. No circumstances had been brought out in cross-examination or by examination of independent witnesses that the statements of witnesses proving such confession are not correct. In State of Rajasthan v. Raja Ram [(2003) 8 SCC 180], it was held : 19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) SCALE 440], wherein this court observed : There was nothing to show that he had reasons to confide in them. The evidence appeared to be unnatural and unbelievable. The High Court observed that evidence of extra-judicial confession is a weak piece of evidence and though it is possible to base a conviction on the basis of an extra- judicial confession, the confessional evidence must be proved like any other fact and the value thereof depended upon the veracity of the witnesses to whom it was made. Recently, this Court held in the case of Kulwinder Singh v. State of Punjab [Criminal Appeal No. 675 of 2006], decided on 05.12.2006, this Court held : the evidentiary value of an extra-judicial confession must be judged in the fact situation obtaining in each case. It would depend not only on the nature of the circumstances but also the time when the confession had been made and the credibility of the witness who testifies thereto. In his confession Aloke Nath takes the entire blame on himself. We are not persuaded to hold that the courts below erred in opining that extra judicial confession of Aloke Nath is in any way doubtful. On the aforementioned evidence, the involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dead body or other articles belonging to the deceased, do not implicate the other Appellants in any manner whatsoever. We may assume that other Appellants conspired with Aloke Nath for selling the house. Mrinal Dutta evidently had signed the blank papers. He purported to have executed some documents impersonating Biswanath. But the question which must be posed and answered would be as to whether they were parties to a bigger conspiracy of murder. Signing of certain documents, impersonation of Biswanath by Mrinal Dutta or the other Appellants' signing the said documents as witnesses, per se would not lead to the conclusion that at any point of time they had agreed with Aloke Nath that Biswanath should be eliminated. There is no eye-witness to the occurrence. Nobody has noticed any suspicious conduct on part of the Appellants indicating their role in committing murder or disposing the dead body. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth. This court has laid down guidelines from time to time in regard to a finding of guilt solely on the basis of circumstantial e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. (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. It was further observed : 179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof. A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well established rule of criminal justice is that fouler the crime higher the proof . In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Rajasthan [(1978) 3 SCC 435] stated the law thus : 22. This confession was retracted by the appellant when he was examined at the trial Under Section 313 Cr. P.C. on June 14, 1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded Under Section 164 Cr. P.C, the Court must apply a double test: (1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine quo non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test does not arise. If the first test is satisfied, the Court must before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused on 07.03.1994. An application for test identification parade for Aloke Nath was filed on 09.03.1994. No such prayer was made by the prosecution for Mrinal Dutta. On 16.03.1994 he had been remanded to police custody. A prayer was made by the Investigating Officer for further police custody before the ACM on 16.03.1994. Consequently he had been remanded till 19.03.1994. Before we examine the legal implications in regard to recording the judicial confession, we may notice the following facts. He had been produced before the Magistrate (PW-43) straightaway from police custody. He was asked to be sent to judicial custody for self introspection. He, however, was taken out from Presidency Jail at 10.30 A.M.. on 21.03.1994. Admittedly, he had been produced before the Magistrate at 1.00 p.m. Albeit a little later, a complaint was made by Mrinal Dutta, that before he had been produced before the Magistrate he was taken to the Alipore Police Station and tortured. It is true, as has been submitted by Mr. Ahmad, that although he had named the Police Inspector who allegedly tortured him, as would appear from his examination under Section 313 of the Code of Criminal Procedure, but the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case came to Court and the incriminating utterance of the accused, previously recorded, was attempted to be introduced. Noting that the landmark decision in Miranda v. Arizona [1966, 384 US 436] did extend the embargo to police investigation also, the Court observed that there was no warrant to truncate the constitutional protection underlying Article 20(3). It was held that even the investigation at the police level is embraced by Article 20(3) and this is what precisely Section 161 means. [See also Directorate of Enforcement v. Deepak Mahajan and Another, (1994)3 SCC 440], and Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600]. To withdraw from what has been said previously needs to be interpreted in the vein of right to remain silent as an extension of this civil liberty. The quality or merit of confession, in no uncertain terms, is in voluntary narration by the accused. At the same time we are equally in know of the troubled times the judiciary is plagued with. The issue of evidentiary standards is a very delicate one and has a great bearing on the outcome of cases. But be it as it may, basic tenets of criminal law can not be lost sight of. In similar vei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should some time, in our opinion, be more intrusive than what is required in law. [See Babubhai Udesinh Parmar v. State of Gujarat 2006 (12) SCALE 385]. In a case, where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court in our opinion, should probe deeper into the matter. Despite procedural safeguards contained in the said provision, in our opinion, the learned Magistrate should satisfy himself that whether the confession was of voluntary nature. It has to be appreciated that there can be times where despite such procedural safeguards, confessions are made for unknown reasons and in fact made out of fear of police. Judicial confession must be recorded in strict compliance of the provisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. [See Hari Charan Kurmi and Jogia Hajam v. State of Bihar (1964) 6 SCR 623] However, we are not unmindful of the fact that in this country, retractions are as plentiful as confessions. In a case of retracted confession, the courts should evidently be a little slow in accepting the confession, although the accused may not be able to fully justify the reasons for his retraction. It is interesting to note that in R. v. Thompson, [1893, 2 QB 12, 18], Cave, J. stated the law thus : I would add that for my part I always suspect these confessions which are supposed to be the offspring of penitence and remorse and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear, and satisfactory, but when it is not clear and satisfactory, the prisoner is not frequently alleged to have been seized with a desire, born of penitence and remorse, to supplement it with a confession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of an accused on the basis of a retracted confession is permissible but only if it is found that retraction made by the accused was wholly on a false premise. [See Balbir Singh (supra)]. There cannot, however, be any doubt or dispute that although retracted confession is admissible, the same should be looked with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads evidence to the court. Why we should not rely on the confession : Coming to the facts of this case, on 04.10.2002, the lawyer appearing for Mrinal Dutta made a submission that an application had been filed praying for calling of some records from the Presidency Jail. No order had been passed thereupon. It was contended that he had been taken from Jail at 10.00 a.m.. The records were directed to be produced. However from the order sheet dated 14.11.2002 it appears that the said records had not been produced. On 17.01.2003 a prayer had again been made on behalf of Mrinal Dutta that steps would be taken for production of the documents in terms of order dated 04.10.2002. The learned Judge recorded : The order No.265 goes to show that the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this nature that the court will issue a suo motu direction to the authority to produce the records. There was absolutely no reason as to why the records would not be produced by the Presidency Jail's authorities for a period of two months. If the said records had not been produced, in our opinion, it was obligatory on the part of the court to issue a suo motu notice. The court was dealing with a serious matter. More than one life hinged on that valuable material. If a public authority does not produce a document despite being called upon to do so; an adverse inference is to be drawn. Converse is not the law. It is true that sufficient time was given (two days) to Mrinal Dutta to confirm his willingness to confess and finalize the contents of the confession. The reasons for which the confession had been retracted and the subsequent events wherein the appellants intended to prove a certain state of affairs, namely, although he was supposed to have been produced directly from the jail to the concerned Magistrate but in fact he was taken out of jail 2 = hours before the time fixed therefor, could be a pointer to the fact as to whether the confession was a voluntary one. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summarised in Bharat v. State of U.P. Hidayatullah, C.J., speaking for a three-Judge Bench observed thus: (SCC p. 953, para 7) Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate in his confession. PW-48 the I.O. was cross examined on this point and suggestions were also given to him which he denied. Mrinal Dutta in his retraction made from jail on 16.06.1994 emphatically stated that he was taken to Alipore police station before being brought to the Magistrate on 21.03.1994. He maintained that stand in his examination under Section 313 Cr.P.C. Strangely enough prosecution did not make any attempt to disprove this allegation. In this case, as we have noticed hereinbefore, there is no independent evidence adduced on behalf of the prosecution to prove conspiracy with regard to cheating and forgery of documents and impersonation. They had been sought to be proved by the supplementary circumstantial evidences. In this case, the courts below have failed to notice the legality of the judicial confession. There did not exist any evidence against Mrinal Dutta. The courts apparently considered the said confessions of Aloke Nath and then started connecting links therefrom and again came back to the confession for completing the chain. Confession must be considered so as to buttress other evidence and not the vice-versa. In other words, in the instant cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borative evidence. In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra judicial confession or a judicial confession and least of all on the basis of retracted confession. What is furthermore required to be considered is that if a retracted confession itself is weak evidence, the question of conviction of a co- accused on the basis thereof would not arise. The question has been considered in State of M.P. through CBI and Others v. Paltan Mallah and Others [(2005) 3 SCC 169], Navjot Sandhu (supra) and Sidharth (supra). In Sidhartha (supra), this Court held : 19. It is true that the confession made by a co- accused shall not be the sole basis for a conviction. This Court in Kashmira Singh v. State of M.P. held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. 2. When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-`-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland. 3. When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride-burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. 4. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. 5. When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-`-vis whom the mur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment. Therein it was also noticed that the accused was prone to do such crime. In State of Maharashtra v. Man Singh [(2005) 3 SCC 131], the court refrained itself from awarding the capital punishment, although the offence involved was rape with murder. In Rama Subramanian v. State of Kerala [AIR 2006 SC 639], this Court did not award a death penalty where a lady, together with her three children, was killed, despite arriving at a finding that the evidence adduced by the prosecution is very clear and convincing to prove the guilt of the Appellant, stating : It is true that the crime committed by the appellant is cruel and dastardly in nature and the appellant deserves no mercy. However, it may be noted that it is not known how and under what circumstances the incident had taken place on 9.8.1999. the appellant was annoyed by the fact that his services were terminated without being paid any compensation despite serving his employer for quite a long period. Taking the overall facts into consideration, we do not find that this is one of the rarest of the rare cases where death sentence could be the only punishment . Apart from Sidharth (supra), our attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he terrific results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread. In that case, death penalty was imposed but our endeavour here is to see that courts in the matter of sentencing act differently although the fact situation may appear to be somewhat similar. We would, however, notice that in State of U.P. v. Satish [(2005) 3 SCC 114], the same learned Judge took a similar view in a case where the High Court reversed the judgment of conviction and imposition of death sentence by the Trial Judge for commission of an offence of rape and murder of a girl aged 6 years, saying the earlier view once again. In Navjot Sandhu @ Afsan Guru (supra), nine persons including eight security personnel and one gardener succumbed to the bullets of the terrorists and 16 persons including 13 security men received injuries as a result of storming of the Parliament by 5 terrorists. This Court upholding the decision of the High Court to award death penalty, observed : The very idea of attacking and overpowering a sovereign democratic institution by using powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it could not be said it was the rarest of the rare case. This Court observed : He had no pre-meditation for commission of the offence. The offence may look heinous, but under no circumstances, it can be said to be a rarest of rare cases. Hence the sentence was commuted to one for life. In Major Singh and Anr. v. State of Punjab (2006 (10) SCALE 354] death Sentence was awarded to the appellant by the High Court. Appellant therein murdered the deceased on the suspicion that the deceased had murdered his wife who happened to be the sister of the appellant. It was observed : considering the fact that there was probably some enmity due to suspicion about Sukhwinder Kaur's death two years after her marriage to Kashmir Singh [deceased] which could have a motive for the crime, we reduce the sentence awarded to both the accused from death sentence to life sentence. However, we may also notice that recently two ladies have been awarded death penalty where the accused were systematically killing children in Renuka Bai @ Rinku @ Ratan Anr. v. State of Maharashtra [(2006) 7 SCC 442 : 2006 ( (8) SCALE 604], stating : 24. The appellants have been awarded capital pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n furtherance of the pressure exhorted by various international NGOs, several countries have abolished death penalty. The superior courts of several countries have been considering the said demand keeping in view the international covenants, conventions and protocol. In 2002, the United States Supreme Court held in Atkins v. Virginia, [536 U.S. 304 (2002)] that it is unconstitutional to execute defendants with mental retardation. The U.S. Supreme Court ruled 6-3 that executions of mentally retarded criminals are cruel and unusual punishment, violating the Eighth Amendment to the Constitution. The court held : We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. We may furthermore notice that the Privy Council recently in Reyes v. R [(2002) UKPC 11 : 12 BHRC 219], upon noticing the decision of the Supreme Court in Mithu v. State of Punjab, [1983] 2 SCR 690, observed : In Mithu v State of Punjab [(1983) 2 SCR 690] the Supreme Court of India considered a provision of the Indian Criminal Code which required sentence of death to be passed on a defendant convicted of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded. We think, we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthermore we do not find any special reason for awarding death penalty which is imperative. In Kishori v. State of Delhi [(1999) 1 SCC 148], this Court observed : 12. It is no doubt true that the high ideals of the Constitution have to be borne in mind, but when normal life breaks down and groups of people go berserk losing balance of mind, the rationale that the ideals of the Constitution should be upheld or followed, may not appeal to them in such circumstances, nor can we expect such loose heterogeneous group of persons like a mob to be alive to such high ideals. Therefore, to import the ideas of idealism to a mob in such a situation may not be realistic. It is no doubt true that courts must be alive and in tune with the notions prevalent in the society and punishment imposed upon an accused must be commensurate with the heinousness of the crime. We have elaborated earlier in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rarest of rare cases must be determined in the fact situation obtaining in each case. We have also noticed hereinbefore that different criteria have been adopted by different benches of this Court, although the offences are similar in nature. Because the case involved offences under the same provision, the same by itself may not be a ground to lay down any uniform criteria for awarding death penalty or a lesser penalty as several factors therefor are required to be taken into consideration. No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do ? Does fact of this case make out the case to be one of rarest of rare cases? We are of the opinion that it does not. The manner of commission of offence may be gruesome. Biswanath was killed while he was in deep slumber, but the method applied cannot be said to be cruel. The reason for commission of the murder is greed of money on the part of Aloke Nath which evidently arose out the result of his bad habits. We have no doubt in our mind that he was pushed back to such a situation where he thought that he had no other option but to kill his brother. The prosecution has not brought out any materia ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
