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TMI Blog2011 (1) TMI 1595X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the death sentence passed by the trial Court into that of life imprisonment. Against the same judgment, Criminal Appeal No. 1259 of 2007 is filed by Mahendra Hembram challenging his life imprisonment awarded by the trial Court and confirmed by the High Court. Against the acquittal of rest of the accused by the High Court, the Central Bureau of Investigation (in short "the CBI") filed Criminal Appeal Nos. 1357-1365 of 2005. Since all the appeals arose from the common judgment of the High Court and relating to the very same incident that took place in the midnight of 22.01.1999/23.01.1999, they are being disposed of by this judgment. 3. The case of the prosecution is as under: (a) Graham Stuart Staines, a Christian Missionary from Australia, was working among the tribal people especially lepers of the State of Orissa. His two minor sons, namely, Philip Staines and Timothy Staines were burnt to death along with their father in the midnight of 22.01.1999/23.01.1999. The deceased-Graham Staines was engaged in propagating and preaching Christianity in the tribal area of interior Orissa. Manoharpur is a remote tribal village under the Anandapur Police Station of the Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied the death sentence awarded to Dara Singh into life imprisonment and confirmed the life imprisonment imposed on Mahendra Hembram and acquitted all the other accused persons. Questioning the conviction and sentence of life imprisonment, Dara Singh and Mahendra Hembram filed Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007 respectively and against the acquittal of rest of the accused, CBI filed Criminal Appeal Nos. 1357-65 of 2005 before this Court. 4. Heard Mr. KTS Tulsi and Mr. Ratnakar Dash, learned senior counsel for the accused/Appellants and Mr. Vivek K. Tankha, learned Addl. Solicitor General for the CBI. 5. Mr. K.T.S. Tulsi, learned senior counsel appearing for Rabindra Kumar Pal @ Dara Singh (A1) and other accused in the appeals against acquittal filed by the CBI, after taking us through all the relevant materials has raised the following contentions: (i) Confessions of various accused persons, particularly, Rabi Soren (A9), Mahadev Mahanta (A11) and Turam Ho (A12) under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code of Criminal Procedure.') cannot be considered to be voluntary on account of the fact that all the co-ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The evidence of identification in Court is substantive evidence and that of the identification in TIP is of corroborative value. (v) The High Court committed a serious error in law in disregarding the confessional statements made under Section 164 of the Code of Criminal Procedure as well as the extra-judicial confessions made by Dara Singh (A1) and Mahendra Hembram (A3). (vi) The High Court wrongly held inculpatory confessional statements as exculpatory and on that ground rejected the same. The High Court failed to appreciate that in their confessional statements (A9), (A11), (A12), (A13) and (A14) have clearly admitted their plan for committing the crime. (vii) The adverse observations against (PW 55) the Investigating Officer of CBI, by the High Court are not warranted and in any event not supported by any material. (viii) Inasmuch as it was Dara Singh (A1) who originated and organized the heinous act and also prevented the deceased persons from coming out of the burning vehicle, the High Court ought to have confirmed his death sentence. (ix) The reasons given by the High Court in acquitting 11 persons are unacceptable and the judgment to that extent is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had surrounded the vehicle of Graham Staines. Thereafter, she found the vehicle on fire. The wheels of vehicle in which Graham Staines and his two sons were sleeping, bursted aloud, and they were burnt to death. The people who surrounded the vehicles raised slogans "Jai Bajarang Bali" and "Dara Singh Zindabad". It is clear that she could identify only Ojen @ Suresh Hansda by face for the first time before the trial Court. No TIP was held to enable her to identify him. It shows that her identification of Ojen @ Suresh Hansda by face during trial was not corroborated by any previously held TIP. It is also clear that though she was examined by the State Police/CID, she never disclosed the name of Ojen @ Suresh Hansda. Though she claims to have identified Ojen @ Suresh Hansda by the light of the lamp (locally called Dibri) which she had kept in the Verandah, it must be noted that it was midnight during the peak winter season and there is no explanation for keeping the lamp in the Verandah during midnight. In her cross-examination, she admitted that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 22.01.1999, his wife woke him up and said that she found large number of people with lathis and torches going towards the church. After walking about 100 ft. towards the vehicles, he found a large number of people delivering lathis blow on the vehicle in which Graham Staines and his two sons were sleeping and the other vehicle bearing No. 952 was already set on fire. Three-four persons belonging to the group caught hold of him by collar and restrained him from proceeding towards the vehicle. The witness could not recognize them as their heads were covered with caps and faces by mufflers. The witness went towards the village and called Christian people. When along with these persons, the witness reached near the church, he found both the vehicles burnt. Graham Staines and his two sons were also burnt to death. The next day, at about 9 P.M., the Officer-In-Charge (OIC) Anandpur PS showed his written paper and said that was the FIR and he had to lend his signature and accordingly, he lend his signature thereon. The witness had identified his signatures during his deposition in the court. Though he mentioned large number of miscreants, but they were not chargesheeted. In the FIR i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the witness raised a noise of protest, those people assaulted him. He went to call the people but nobody came. When he came back to the place of occurrence, he found both the vehicles on fire. The witness stated that there were about 30-40 people armed with lathis and holding torches. They raised slogan 'Jai Bajarang Bali' and 'Dara Singh Zindabad. The fire was extinguished at 3 a.m. By that time, both the vehicles were completely burnt. Graham Staines and his two sons were completely charred and burnt to death. The witness could not identify any of the miscreants who set the vehicles on fire. vi) PW11, Bhakta Marandi was next examined on the side of the prosecution as eye-witness. He identified accused Dara Singh and Rajat Kumar Das in dock. His statement was neither recorded by local police nor by the CID but recorded by the CBI on 05.06.1999. He belongs to Village Manoharpur (the place of occurrence). His house is situated two houses apart from the church. He stated that the deceased Graham Staines was known to him. He last visited Manoharpur on 20.01.1999 along with his two sons and others in two vehicles. Graham Staines and his two sons used to sleep in the nigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oming out of the house, he found 40-50 persons gathered near the vehicles parked in front of the church and beating the vehicles by lathis. Those miscreants were holding lathis, axe, torches, bows and arrows. He heard cries raised by the minor sons of Graham Staines. He went near the vehicle, but 3 to 4 persons threatened him with lathis and, therefore, he retreated to his house. Thereafter, he went to the huts raised behind the church and called the persons staying there and went to the place of occurrence and found the vehicles set on fire. The miscreants put the straw inside the vehicle and set it on fire. They first set the empty vehicle on fire and thereafter the vehicle in which Graham Staines and his sons were sleeping. Both the vehicles caught fire and were burnt. The witness identified accused Dara Singh (A1), Dipu Das (A2), Ojen @ Suresh Hansda and Mahadev as the miscreants present at the scene of occurrence and taking part in the offence. The witness further stated that Ojen Hansda and Mahendra Hembram belonged to his village. He had identified accused Uma Kanta Bhoi in the TIP conducted at Anandpur Jail as one of the persons setting fire on the vehicle. He further state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2).He is also a witness to the seizure of some articles seized from the place of occurrence and he has proved the seizure list. Admittedly, he did not disclose the names of these persons before either of the aforesaid three I.Os. ix) Raghunath Dohari (PW36), one of the eye-witnesses, identified accused Dara Singh, Harish Chandra, Mahadev and Turam Ho. His statement was not recorded by local police and the CID but it was recorded by the CBI on 04.12.1999. He belongs to village Manoharpur (place of occurrence). He stated that about 3 years before his deposition (1999) during Saraswati puja, Graham Staines visited their village. In the night, he heard the sound of beating. He got up and went to the church, where there was a gathering of 60-70 persons in front of the Church and they were beating the vehicles with sticks. They brought straw and set fire to the vehicles by burning straw. The witness identified accused Dara Singh (A1), Harish Chandra, Mahadev and Turam Ho as the miscreants who were in the gatherings and set fire to the vehicles. It is relevant to point out that apart from the police party, the Collector and other Police Officers though were camping at the place of occur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is PW43, Lablal Tudu. He identified accused Dara Singh, Turam Ho, Daya Patra and Rajat Kumar Das. His statement was not recorded by local police and by the CID but recorded by the CBI on 03.06.1999. He is also a resident of Manoharpur village and his house is located near the Church (the place of occurrence). He stated that Graham Staines visited their village about three years before his deposition in the Court (January, 1999). He came there on Wednesday and stayed till Friday. On Friday night, Graham Staines and his two sons slept in a vehicle parked in front of the church. In the midnight, his mother (PW2) heard the beating sounds of vehicle and woke him up. He found 50-60 persons beating the vehicle by lathis in which Graham Staines and his two sons had slept. Three-four of them put the straw beneath the empty vehicle and lit the straw by matchsticks. After setting the empty vehicle ablaze, those persons put straw beneath the vehicle of Graham Staines and his two sons and ignited the same. Those two vehicles caught fire and began to burn. The witness identified four persons, namely, Dara Singh (A1), Turam Ho (A12), Daya Patra (A14) and Rajat Das (A2) as the persons beating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y if he identified the same persons in a previously held TIP in jail. It is true that absence of TIP may not be fatal to the prosecution. In the case on hand, (A1) and (A3) were identified and also corroborated by the evidence of slogans given in his name and each one of the witnesses asserted the said aspect insofar as they are concerned. We have also adverted to the fact that none of these witnesses named the offenders in their statements except few recorded by I Os in the course of investigation. Though an explanation was offered that out of fear they did not name the offenders, the fact remains, on the next day of the incident, Executive Magistrate and top level police officers were camping the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable to look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier TIP. Though some of them were identified by the photographs except (A1) and (A3), no other corroborative material was shown by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exaggerated and improved version of the incident makes it difficult to place implicit reliance on the statements of any of these witnesses. He cited various instances in support of his claim. a) As regards the number of persons who have allegedly attacked the vehicles, it was pointed out that PW 23 - Joseph Marandi (brother of PW 15)/Christian/15 years at the time of incident) has stated that 20-22 persons surrounded the vehicle. On the other hand, PW 39 - Soleman Marandi and PW 10 - Nimai Hansda deposed that 30/40 persons surrounded the vehicle. PW 15 - Mathai Marandi found 40/50 persons were beating with lathis. PW 43 - Lablal Tudu (son of PW 2) deposed that 50/60 persons were beating the vehicle whereas PW 2 - Basi Tudu found 60 persons going towards the church. PW 3, Paul Murmu found 60/70 persons putting straw beneath the vehicle and setting fire. PW 36 - Raghunath Dohal mentioned that about 60-70 people gathered in front of the church. b) As regards straw being kept on the roof of the vehicle to prevent cold, PWs 3, 10, 11, 15, 36, 39, 43, 45 and 52 mentioned different versions. c) With regard to whether there was a light or not which is vital for identification of mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible due to darkness. PW 4 has stated the distance between Nagin dance and Church is 200 ft. PW 5 has stated that Church was not visible from the place of Nagin dance and the distance was 200 ft. PW 6 has mentioned that Church was visible from the place of Nagin dance and distance was 200 ft and finally PW 32 has stated the church was visible from the place of Nagin dance. j) With regard to distance between place of occurrence and Nagin dance, PW 15 has mentioned the distance is 200 ft. PW 32 has stated that vehicles were visible from the place of Nagin dance, PW 36 has stated Nagin dance staged 10-12 houses apart from Church at front side whereas PW 39 has stated Nagin dance staged 4 houses apart from Chruch and PW 43 has stated that it was staged 5 houses apart from church and he admitted that he was not sure of the distance between church and the place of Nagin dance. k) With regard to their arrival at the place of occurrence, PW 11 has stated that PWs 4, 15 and 23 came to the place of occurrence an hour after the miscreants left the place whereas they deposed that they were present there from the beginning. PW 10 has stated that he woke up on hearing bursting and beating so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation under this Chapter or under any other law for the time being in force, or at any, time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this Sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is bear, made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused No. 12, he was arrested on 13.05.1999 by the Investigating Agency and from 19.05.1999 to 23.05.1999 the accused person was in custody of the investigating agency. While so, on 21.05.1999, the accused No. 12 made a statement under Section 164 Code of Criminal Procedure and thereafter remanded back to police custody. It was pointed out that he also stated in his statement under Section 313 Code of Criminal Procedure that he was beaten by the investigating agency. (d) The next instance relates to Umakanta Bhoi, Accused No. 13 who refused to make a statement under Section 164 Code of Criminal Procedure prayed by I.O. to be put for 16.03.1999 for recording statement. It was directed to jail authority to keep the accused under calm and cool atmosphere. A 13 was produced from Judicial Custody for recording statement under Section 164 Code of Criminal Procedure and he refused to make a statement. However, on 31.08.1999, he made a confessional statement. (e) In the case of Dayanidhi Patra, Accused No. 14, on 21.09.1999, he was arrested by the Investigating Agency. On 24.09.1999, Learned ASJ granted police remand for 7 days i.e. on 01.10.1999 and that on that day A 14 made a statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it as a corroborative piece of evidence in the case. When a judicial confession is found to be not voluntary and more so when it is retracted, in the absence of other reliable evidence, the conviction cannot be based on such retracted judicial confession. (See Shankaria v. State of Rajasthan (1978) 3 SCC 435 (para 23) 23. In Shivappa v. State of Karnataka (1995) 2 SCC 76, while reiterating the same principle it was held: 6. From the plain language of Section 164 Code of Criminal Procedure and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 Code of Criminal Procedure, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 Code of Criminal Procedure. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 164 Code of Criminal Procedure and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with. 8. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the Appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the Appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: "I have not stated to the accused that I am a Magistrate" and further admitted: &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for the State is right that the failure to comply with Section 164(3) of the Criminal Procedure Code, or with the High Court Circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore, a confession does not violate any one of the conditions operative under Sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. That shows how important it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nalini and Ors. (1999) 5 SCC 253 at 307, the following paragraphs are relevant which read as under: 96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used. 97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Bihar AIR 1964 SC 1184. 28. In State of Maharashtra v. Damu (2000) 6 SCC 269, the same principles had been reiterated which read as under: 19. We have considered the above reasons and the arguments addressed for and against them. We have realised that those reasons are ex facie fragile. Even otherwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts. 25. We may make it clear that in Kashmira Singh this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker. The legal position concerning confession vis-�-vis the confessor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement. Judicial Magistrates (PWs-29 & 34) 30. Ashok Kumar Agrawal, PW29 and Tojaka Bharti, PW34, Judicial Magistrates recorded the confessional statements of some of the accused. Judicial Magistrate, PW29 recorded the confessional statement of Rabi Soren and Turam Ho and PW34, Judicial Magistrate recorded the confessional statement of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi Patra. It is the claim of Mr. K.T.S. Tulsi, learned senior counsel for the accused, that the evidence of PW29 and PW34, Judicial Magistrates shows that they were blissfully unaware of the stringent responsibility cast on them by Section 164 Code of Criminal Procedure. According to him, their evidence create an impression that they were not aware of the difference between the police custody and judicial custody nor do they seem to understand the significance of Section 164 Code of Criminal Procedure He pointed out that why the first four pages in case of each of the accused persons is not signed by the accused is not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be ruled out. In the same manner, confession of another accused Turam Ho was also recorded by the very same Magistrate. Here again, the High Court pointed out that he was not cautioned that if he made any confession, same may be used against him in evidence and on that basis he may be sentenced to death or imprisonment for life. Equally he was not cautioned by PW29 that if he refused to make the confessional statement, he would not be remanded to police custody. It is further seen that both of these accused, in their confessional statements, made exculpatory statements. 32. PW34, Judicial Magistrate, recorded the confessional statement of accused Mahadev Mahanta on 08.07.1999 immediately after his production before him from the police custody. PW34 was directed by the Addl. C.J.M. to record the confessional statement of Mahadev Mahanta. It was noted that he was given only 10 minutes' time for reflection after his production from police custody. The other accused who made the confessional statement is Dayanidhi Patra whose statement was recorded by PW34. The High Court, on corroboration of the confessional statement, had found that the entire confessional statement is excu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d A3, the fact remains that the Van in which Graham Staines and his two children were sleeping were set on fire and burnt to death due to the cause of the miscreants. In other words, death of these three persons by setting fire by the miscreants cannot be ruled out. There is no material to conclude that the fire emanated from inside of the vehicle and then spread to rest of the vehicle after the fuel tank caught fire. There is no basis for such conclusion though the prosecution witnesses could not pin-point and identify the role of each accused. 35. Another question which we have to consider is whether the Police (CBI) had the power under the Code of Criminal Procedure to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Code of Criminal Procedure in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gitimate powers to bring offenders to justice. ... .... 11. ...When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'. 12. ....A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, any time after the statement has been made. In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial Court and confirmed by the High Court, cannot be faulted with. In view of oral report of Rolia Soren, PW 4 which was reduced into writing, the evidence of PW 23, two letters dated 01.02.2002 and 02.02.2002 addressed by Mahendra Hembram (A3) to the trial Judge facing his guilt coupled with the other materials, we are unable to accept the argument of Mr. Ratnakar Dash, learned senior counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived by the High Court. Additional factors-Mahendra Hembram (A3). 36. Coming to the role of Mahendra Hembram A3, the prosecution very much relied on his letters dated 01.02.2002 and 02.02.2002 addressed to the Sessions Judge wherein he confessed his guilt. Though a serious objection was taken about the admissibility of these two letters, the contents of these two letters addressed to the Sessions Judge in the course of trial lend ample corroboration to his identification before the trial Court by Joseph Marandi, PW 23. Even in his case, it is true that there was no T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fire to the vehicles. Mahendra Hembram, in his statement recorded under Section 313 Code of Criminal Procedure., on 04.02.2002 has stated that he may be the short statured person. Accused Mahendra Hembram in his letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law, Kapura Tudu (PW9) had confessed to have burnt the Christian missionary along with Dara Singh. In the course of trial, he filed petitions on 01.02.2002 and 02.02.2002 pleading guilty and confessing to have set fire to the vehicles. In his statement recorded under Section 313 Code of Criminal Procedure on 04.02.2002, he has admitted to have set fire to the vehicles and in his statement recorded under Section 313 Code of Criminal Procedure on 24.03.2003 has admitted to have filed petitions pleading guilty and to have stated in his earlier examination under Section 313 Code of Criminal Procedure. that he had set fire to the vehicles. There is no impediment in relying on a portion of the statement of the accused and finding him guilty in consideration of the other evidence against him as laid by the prosecution. 40. It is clear that the letters marked as (Ex. 213) were written by Mahendra Hembram though denied by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation along with other evidence to prove his guilt. The fact remains that he was not available for quite sometime till he was arrested which fact has not been disputed by the defence counsel. We are satisfied that before accepting the contents of the two letters and the evidence of PW 23, the trial Judge afforded him required opportunity and followed the procedure which was rightly accepted by the High Court. Additional factors - Dara Singh (A1) 42. In addition to what we have highlighted and elicited from the materials placed, it is relevant to point out that all the eye-witnesses examined by the prosecution consistently stated that during occurrence the miscreants raised slogans in the name of Dara Singh as "Dara Singh Zindabad". The story of this slogan was also mentioned in the first information report lodged soon after the occurrence. This slogan is in the name of Dara Singh, corroborates the identification before the trial Court for the first time. In addition to the same, some of the witnesses identified Dara Singh by photo identification. We have already highlighted the evidentiary value of photo identification and identifying the person in the dock. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eps taken by the Officer of the CBI, particularly, the efforts made by PW 55, though certain deficiencies are there in the investigation, the same cannot be under estimated. Likewise, it was pointed out that young children were being coerced into being witness to the occurrence whereas the elder family members were never joined as witness by the prosecuting agency. It is true that the prosecution could have examined elders and avoided persons like PW 5 who was a minor on the date of the incident. We have already discussed about the veracity of witnesses and found that certain aspects have been established and accepted by the trial Court as well as the High Court. 45. Finally, insofar as the appeals filed by the CBI against the order of acquittal by the High Court in respect of certain persons, it was pointed out that when two views are possible, the one in favour of the accused should be accepted. It is true that the presumption of innocence is a fundamental principle of criminal jurisprudence. Further, presumption of innocence is further reinforced, reaffirmed and strengthened by the judgment in his favour. [Vide State of Uttar Pradesh v. Nandu Vishwakarma and Ors. (2009) 14 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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