Nath Dutta & Ors Vs. State of West Bengal  Insc 945 (12 December 2006)
Sinha & Dalveer Bhandari
W I T
H CRIMINAL APPEAL NO.875 OF 2005 S.B. SINHA, J :
No.2C, a three storied building situate at Beadon Street situated in the town of Kolkata, belonged to one Jagannath Dutta. He transferred the said property in
favour of his wife Arunamoyee Dutta on certain terms and conditions wherewith
we are not concerned. She had four sons and one daughter. During her life time,
two of the sons, namely, Biswanath Dutta (deceased) and Aloke Nath Dutta,
(appellant), were residing with her. Biswanath used to stay at the second floor
with some tenants occupying some portions thereof; whereas Aloke Nath Dutta
used to reside on the first floor. Her daughter Anuradha Das was 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
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.
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.
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 Rs.65,000/- to
him. Nandlal Singh (PW-15) also had advanced various sums of money to Aloke
Nath from time to time. He on the advice of his advocate Bikash Pal (PW-14)
refused to advance any further sum till the time he was put in possession of
the room of the second floor and the Puja Room; which was promised to be
delivered on 23.01.1994.
story is that the deceased was not in favour of sale of the said property. The
transactions with regard to the sale of the said property, in favour of the
said Nandlal Singh and Arunmoy Bose, however, were being conducted, as if
Biswanath was a party thereto. Appellant Mrinal Dutta is said to have been impersonating
Biswanath and singed several documents in his name.
Nath absented himself from duty from 7.00 p.m. on 22.01.1994 to 28.01.1994, as disclosed by his colleagues Sahadev
Mondal (PW-33), Ananta KumarThanedar (PW-34), and Biman Ghosh Dastidar (PW-35).
of Pooja Room and a room occupied by Biswanath was delivered to Nandlal Singh
on 23.01.1994. Nandlal Singh noticed a newly constructed 'bedi' in the said
room. He asked him the reasons therefor, and was informed that it was
constructed for cooking purpose. He asked him to remove the same; whereto Aloke
Nath promised to do so after registration of the sale deed. Nandlal Singh, as
advised by his advocate, Bikash Pal, issued an advertisement in the Newspaper
'Ananda Bazar Patrika', a Bengali Daily, on 31.01.1994. Bikash Pal suspected
that Aloke Nath might have other brothers and sisters and therefore advised
issuance of such advertisement. Amar Nath, Samar Nath and Anuradha Das (PWs. 4,
3 and 5 respectively) informed Bikash Pal that they were also co-owners of the
said property and were not agreeable to sell the house.
view of the aforementioned developments, Samar Nath (PW-3), Amar Nath (PW-4)
and Avijit Dutta (PW-6) allegedly visited the Premises No. 2C, Beadon Street on 06.03.1994. They enquired about
whereabouts of Biswanath and were informed that he had started living at
Barasat. They visited the house the address whereof was furnished by Aloke
Nath. They found out the same to be bogus as no person called Biswanath had
been residing there. They came back to Premises No.2C, Beadon Street. They insisted upon Aloke Nath to
disclose the whereabouts of Biswanath, whereupon Aloke Nath allegedly broke
down and made an extra judicial confession before them, as also Nandlal Singh
and some tenants, that 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.
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.
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 belonging to the
deceased Biswanath from the rented premises which he had been occupying, as
also a confession leading to recovery of some of the household articles.
Mrinal Dutta is also said to have made a statement under Section 164 Cr. P.C.
before T. Uddini, Metropolitan Magistrate, 3rd Court Kolkata on 21.03.1994. He, however, retracted therefrom on or about
was conducted by Sub Inspector Sukhendu Barick attached to Burtolla Police
Station. However the case was transferred to the Detective Department of
Kolkata Police and from 08.03.1994, Sub Inspector Atanu Banerjee (PW-48) took
over the investigation of the case.
having filed the charge-sheet, cognizance of the offence was taken and the case
was committed to the Court of Sessions.
the accused were put to trial. Three different sets of charges were framed
against them, under Sections 120B/302/34 and 201/34 IPC, in the following terms
That you, all in the month of January, 1994 at 2/C, Beadon Street, Calcutta,
agreed to do and caused to be done an illegal act, to wit, to cause the death
of Biswanath Dutta by murdering him to enable Aloke Dutta to sell the premises
no. 2/C, Beadon Street, Calcutta and that such illegal act of murder was
committed in pursuance to the agreement and you all thereby committed an
offence punishable under Section 120B/302 of the Indian Penal Code, and within
the cognizance of this Court of Sessions.
That you, all on about the night 22nd day of January 1994 at 2/C, Beadon
Street, Calcutta, pursuant to the criminal conspiracy mentioned in Court No.1
above and with the common intention of you all, did commit murder by causing
the death of Biswanath Dutta, and you are thereby committed an offence
punishable under Section 302/34 of the Indian Penal Code, and within the cognizance
of this Court of Sessions.
That you, all on or about the night of 22nd day of January 1994, at 2/C,
Beadon Street, Calcutta, with the common intention of you all, to cause the
evidence of murder to disappear and to screen the offenders, concealed the dead
body of Biswanath Dutta after he was murdered, inside the cavity created on the
wall shelf of the room of Aloke Dutta and thereafter covered the same by bricks
and cements and you all thereby committed an offence punishable under Section 201/34
Indian Penal Code and within the cognizance of this Court of Sessions.
hereby direct that you be tried by the said Court on the said charge."
OF EVIDENCE :
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.
examined on behalf of the prosecution can be sub-divided in three categories,
namely, (i) Sale of house,
Tenants at Premises No. 2C, Beadon Street,
Witnesses who testified about Aloke's character and conduct as also others like
Photographer, labourers, Mason etc.
deal with the depositions of the prosecution witnesses hereafter at an
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
to pay a fine of Rs.5,000/-, in default to suffer imprisonment of two more
years. They were also convicted for commission of offence under Section 201/34
IPC and to pay a fine of Rs.3,000/- each, in default to suffer imprisonment for
one more year. No separate sentence was awarded under Section 402/120B IPC.
preferred appeals before the High Court.
High Court agreed with the findings of the learned Sessions Judge. It was
opined that all Appellants had hatched a conspiracy and the deceased was killed
when he was asleep. While considering the quantum of punishment, the High Court
sought to draw a balance between aggravating and mitigating circumstances and
observed that the case comes within the category of rarest of rare cases. It
was observed that the learned Sessions Judge had rightly exercised the option
in favour of the capital punishment to Aloke Nath, Mrinal Dutta and Shib Sankar
Roy @ Gobinda @ Babu. The High Court refused to differentiate the case of Aloke
Nath from that of Mrinal Dutta and Gobinda @ Babu, holding that all the three
were part of the conspiracy to execute the pre-planned murder of Biswanath.
Upon screening of evidence, the High Court dismissed the appeals preferred by
them. The order of conviction and sentence of the learned Trial Judge passed
against Mamata was also upheld by the High.
on behalf of Appellants have been advanced principally by Mr. Pradip Ghosh, the
learned Senior Counsel appearing on behalf of Mrinal Dutta.
of the learned Senior Counsel are:
The judgment of conviction being based on circumstantial evidence and there
being no eye-witness; the prosecution cannot be said to have proved all the
links in the chain so as to prove that Appellants were guilty of commission of
the alleged offences.
Circumstantial evidences brought on records by the prosecution were not
sufficient to bring home the charge of conspiracy against Appellants to commit
murder of Biswanath.
The courts below committed a serious error insofar as they failed to
distinguish between a larger conspiracy to commit a murder and a relatively
smaller conspiracy for impersonation of Biswanath by Mrinal Dutta, committing
the offence of forgery or cheating
As the purported extra judicial confession made by Aloke Nath was confined to
acceptance 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.
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.
Confession of an accused, even if accepted, must be considered in its entirety
and not in pieces
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
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.
Judicial confession purported to have been made by Mrinal Dutta disclosed that
he had been forced to join Aloke Nath and, thus, the courts below ought to have
held that he made confession as a repenter and his being a party to the larger
conspiracy was, thus, in serious doubt.
any view of the matter, extreme punishment of death could not have been awarded
having regard to the nature of the evidences led by the prosecution.
of Mr. Altaf Ahmad, the learned Senior Counsel appearing on behalf of the
State, on the other hand, were :
That although there was no direct evidence as against Appellants, the sixteen
circumstances enumerated by the learned Trial Judge and affirmed by the High
Court, were based on positive evidences led on behalf of the prosecution.
Evidences, both oral and documentary, led by the prosecution were sufficient to
arrive at the finding of guilt as against all the accused.
Extra judicial confession made by Appellant Aloke Nath having not been
retracted and the same having been proved by a large number of witnesses
including independent witnesses and it being voluntary in nature was rightly
relied upon by the courts below.
Extra judicial confession made by Aloke Nath was made to his elder brothers
Samar Nath (PW-3) and Amar Nath (PW-4) in the presence of his nephew Avijit
Dutta (PW-6), the intending purchaser of the house Nandlal Singh (PW-15) as
also two tenants of the premises, namely, Swapan Dutta (PW-18) and Bijoy Sharma
(PW19) and their testimonies having not been shaken in cross- examination, the
learned Trial Judge as also the High Court committed no error in passing the
judgment of conviction and sentence as against all of them.
free and voluntary confession deserves due credit as it is presumed to flow
from the highest sense of guilt.
Judicial confession might have been retracted, but the learned Trial Judge and
the High Court upon analysis of the material brought on records came to the conclusion
that the same was true and had been voluntarily made, and there is no reason to
interfere with the said findings. It is not a rule of law that a judicial
confession must be corroborated in materials produced by independent witnesses.
Appellant Mrinal Dutta having retracted his confession only at a much later
stage without specifying any reason therefor; no importance thereto should be
In his examination under Section 313 of the Code 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.
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
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.
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 Kishore Singh (PW-23). According
to PW-18, he had seen Biswanath alive on the said date. He had also allegedly
seen Biswanath being called by Appellant Aloke Nath to his own room. He was not
heard and seen thereafter.
of the evidences is required to be done keeping in view the factual matrix
conspiracy, if any, arose out of the greed of Aloke Nath. He needed money to
satisfy his bad habits. A situation came to such a pass that he had to
negotiate with two persons for sale of the house simultaneously.
taken money from both the intending purchasers. Apparently, with a view to
extract money from the said two purchasers, he pretended, that he and the
deceased were the only owners of the house. The deceased might not have been
willing to sell the house, but he might not have also been aware of the
transactions. Aloke Nath might have intended to keep him in dark and swallow
the entire amount of consideration. His other brothers and sisters had also not
been taken into confidence. Indisputably, they were on litigating terms with
the deceased and Appellant Aloke Nath. Assistance of Mrinal Dutta in
impersonating Biswanath was obtained by Aloke Nath. He was paid a sum of Rs.5,000/-
for the same. He was impersonating Biswanath and had been signing, executing
documents and posing himself as such at Aloke Nath's instance.
Nandlal Singh (PW-15) pressurized Aloke Nath to hand over possession of a few
rooms to him on the advice of his lawyer Bikash Pal, Aloke Nath apparently
became desperate. Whether he hatched a conspiracy with the other Appellants at
that point of time to do away with his brother Biswanath and dispose of his
dead body so as to get the entire amount of consideration of the sale of the
house, is the core question. There is no direct evidence to show that other
Appellants also were part of the said conspiracy. Their presence had not been
noticed by any of the witnesses.
saw them together in the house. Nobody saw Mrinal Dutta coming to the house
even once. We are not oblivious of the fact that it is difficult to have direct
evidence of conspiracy. But to prove conspiracy hatched to commit a heinous
crime, circumstantial evidence brought on records must be such which would have
no loose ends to tie.
the aforementioned principles in mind, we 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.
the aforementioned purpose we may, at the outset notice, the statements of the
witnesses whom we have categorized in Category (i).
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
Rs.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.
Shanker Dey (PW-7) and Arunmoy Bose (PW-8) also stated in details the
negotiations leading to execution of the said agreement for sale.
Singh (PW-10) and Nawratan Singh (PW-16) were brokers.
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.
Pal, who examined himself as PW-14 is again a witness who was a witness to the
said transaction. It was only at his instance Nandlal Singh refused to give
further advance to Aloke Nath unless he had been put in possession of a part of
the said property. Bikash Pal advised Nandlal Singh to publish an advertisement
in the Anand Bazar Patrika as he suspected that there might be other owners of
the property. He identified the accused in court. Other witness also identified
them. Their evidences taken in entirety however do not lead to the conclusion
that they conspired to murder Biswanath. But it is sufficiently clear that they
conspired to sell the property.
would deal with this question a little later at some depth.
would hereinafter notice the alleged sixteen circumstances enumerated by the
learned trial judge in his judgment and the evidences available in regard thereto
Since the death of his mother, Aloke Nath tried to sell the house
surreptitiously without informing his other brothers and sister, and as he was
not supported by Biswanath, he endeavuored to sell the house secretly.
Prior to the said incident, Aloke Nath entered into an agreement with Arunmoy
Bose (PW-8) and received a sum of Rs.65,000/- where Aloke Nath had put his
signature and Mrinal Dutta had signed as Biswanath.
earn more money and to grab the property of his brothers, Aloke Nath entered
into an agreement with one Nandlal Singh (PW-15). He introduced Mrinal Dutta as
Biswanath and delivered possession of the two rooms on the 2nd floor. He was
asked to dismantle the kaccha bedi to he replied that the same would be
dismantled later on.
of advances was made from time to time.
Possession of the first floor was delivered in the month of February 1994,
whereupon it was noticed that the 'bedi' had not been dismantled, instead it
was made more stronger by fully plastering it with red colour cement.
per advice of Bikash Pal (PW-14) an advertisement was published in Ananda Bazar
Patrika for sale of the house.
Bikash Pal received three objections (Ex. 24 collectively). He in turn wrote
two letters to PWs-3 and 4 (Ex. 25). When he informed thereabout Aloke Nath
told that he was trying for settlement with them.
Possession of the first floor was delivered to PW-15 on 14.02.1994 by Aloke
Nath and he told that Babu Roy would stay
in the covered verandah for a couple of days.
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
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.
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.
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.
PWs-3, 4 and 6 also disclosed about the special identification mark(s) of
Biswanath. The doctor on examination of the skeletonised body opined that the
same was homicidal in nature and the death was due to throttling.
Skeletonised body had been subjected to the superimposition test conducted by
expert PW-41, who opined the examined skeleton to be that of a human male,
5'-6" feet tall, aged 40-50 years.
Biswanath was seen alive on 22.01.1994 as he went to the office which has been
proved by Ex.64 and 64/1. Accused Mrinal Dutta in his confessional statement
which is believable, remarked that Aloke Nath and Biswanath were seen together
on 22.01.1994 between 10- 10.30 p.m. at
2C, Beadon Street. Biswanath was goaded to sleep in
the verandah on the 1st floor, near Aloke Nath's bedroom on the plea that
Biswanath's room on 2nd floor was under repair.
Accused Mrinal Dutta came to the premises and found Aloke Nath, Babu Roy,
Mamata Dutta and her two daughters present there.
in the midnight of 22.01.1994, Aloke Nath had first
entered into the covered verandah where Biswanath was sleeping and having found
Biswanath in sound sleep, called Babu Roy, Mrinal Dutta and Mamata Dutta.
Mamata gave one blanket to Aloke Nath who then covered the head and face of
Biswanath with the blanket, Mrinal Dutta caught hold of the hands of Biswanath
and Babu Roy held his legs. The accused Aloke Nath then pressed the neck of
Biswanath and killed him.
After delivery of the possession of the first floor of the premises to PW-15,
Aloke Nath shifted his residence to the tenanted premises. On the basis of his
confessional statement (Ex. 108) and on being identified and pointed out by
him, the Investigating Officer on 10.03.1994 recovered and seized the personal
belongings of Biswanath. On some articles the name of Biswanath appeared.
accepted by the Trial Judge:
Circumstnaces Nos.1 & 2:
Shankar Dey, is the attesting witness to the agreement made by Aloke Nath with
Arunmoy Bose to sell the house. He, as noticed hereinbefore, identified Mrinal
Dutta as impersonating Biswanath.
Bose (PW-8) has also proved the said fact.
Circumstances Nos. 3 & 4:
Singh (PW-10) and Nawratan Singh (PW-16) who worked as brokers on behalf of
Nandlal Singh (PW-15). They were witnesses to the said transaction. Sudhakar
Singh, Nawratan 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
Circumstances Nos. 5 & 6:
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
brought in picture; and only having become suspicious as regards correction of
the said statement he advised Nandlal Singh for publication of the notice in
the said newspaper.
Circumstance No.7 :
Singh (PW-10), Nandlal Singh (PW-15) and Nawratan Singh (PW-16) were witnesses
to the delivery of possession of the room which had been occupied by Aloke
Nath. They stated that Aloke Nath represented that his brother in law and
family would stay in the covered verandah, for a couple of days. He further
represented that the 'bedi' would be dismantled immediately after registration.
The evidence of the said witnesses also show that apparently Aloke Nath had
contacted his brothers and sister and only on that basis he had asked Nandlal
Singh (PW-15) to be present in the premises at 2C Beadon Street on 10.03.1994,
as his elder brothers and nephew PWs 3, 4 and 6 would visit.
visit of PWs 3, 4 and 6 at the premises stood proved by their evidences. They
further stated that when asked about the whereabouts of Biswanath, they were
told that he was staying at 11/1, Jhawtola Lane, near Barasat Chowrasta;
whereupon they visited that place and came back after they failed to ascertain
the said address.
No.9 has been proved by PWs 3, 4 and 6 as also PWs 15, 18 and 19. The purported
confession of Aloke Nath was made in presence of the said witnesses. The
purported confession was made when PWs 3, 4 and 6 came back after search of the
deceased at Barasat Chowrasta and accosted Aloke Nath with regard to the
whereabouts of Biswanath.
they suspected some foul play. It is at that point of time, Aloke Nath was said
to have broken down and made the confession before the said witnesses.
would appear from the evidences of Sukhendu Barick, Sub Inspector of Police
(PW47) and Samar Nath (PW-3) that when the police, having received information
that some untoward incident had happened at 2C, Beadon Street, was going to the
said place, Samar Nah met them on the way who was going to the police station
to lodge an F.I.R. The police came to the said premises and recorded his
statement. Aloke Nath was arrested.
said circumstance has been proved by Samar Nath (PW-3) and Amar Nath (PW-4),
brothers of Appellant Aloke Nath, Avijit Dutta son of Amar Nath (PW-6), Nandlal
Singh (PW-15), Swapan Dutta (PW-18) and Bijoy Sharma (PW-19), tenants of the
said house. Thereafter Aloke Nath made confession.
Nath made three confession :
stating the manner in which the deceased was killed as also burial of his dead
confession leading to the recovery of the dead body; and
relating to the disposal of the belongings of Biswanath.
portions of the second confession are as under :
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.
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.
by me, read-over explained and admitted to be correct." "After
killing my elder brother Biswanath Dutta, I hid his valuable belongings like
record player, tape, radio, wall clock, amplifier, suitcase, shirts, trousers,
bag, three trunks etc. and many other articles in my bedroom at my present
address at J/F/6/1, Ashwini Nagar, Bidhan Palli, Baguihati, Calcutta-59. If I
am taken along there I can show that room and the belongings of my elder
police interrogated me and recorded my statement.
by me, read-over explained and admitted to be correct." Relevant portions
of the third confession is as under:
killing my elder brother Biswanath Dutta,I sold the wooden almirah in his room,
mirror and many other articles including our domestic pump set etc. to Gobind
Sarkar a resident of Nimtala for seven thousand rupees. If I am taken along, I
can identify Gobinda Sarkar, his residence and those articles.
of those articles (partly torn) and I got the money from Gobind Sarkar and give
him a receipt for the same.
police interrogated me and recorded my statement.
by me, read over, explained and Bengali and admitted to be correct." Re:
Circumstance No. 11 :
confession lead to the recovery of the dead body, PW-3, PW-4, PW-6, PW-9,
PW-15, PW-18, PW-19, PW-23, PW-30, PW-46 and PW-47 were witnesses to the said
recovery. Sukhendu Barick, Sub-Inspector (PW- 47) allegedly sent for masons for
demolishing the Bedi; whereupon Jatin Singh (PW-9) and Gopal Pramanik (PW-30) masons,
came and demolished the Bedi. A human body in form of skeleton was noticed,
which was taken out and identified to be that of Biswanath. Ashok Kumar
Banerjee, Inspector of Kolkata Police (PW-47) is also a witness to the said
Circumstances Nos. 12 and 1 :
Nos. 12 and 13 relate to the identification of the dead body and its autopsy.
Biswanath was to have an extra tooth. It was proved by his brothers PW-3 and
PW-4 as also his nephew PW-6. It was found to be an identification mark. The
ante-mortem injuries on the dead body and the opinion of Dr. Nandy (PW-39),
Autopsy Surgeon ,are as under :
was 4" x 3" area of extravasation of blood on the surface of trachea
and surrounding soft tissue along with hyoid and thyroid. There was fracture
hyoid bone on the right cornue with evidence of extravasation on the margins.
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".
Dutta (PW-18) was a tenant of the second floor of the premises (pages 109-113).
He saw Biswanath at 10-10.30
p.m. on the night of
22.01.1994. According to the said witness, he was taken to the first floor of
the house by Aloke Nath on the pretext that his room was under repairs.
testified that Biswanath was not seen thereafter. Kartick Chandra Sinha,
(PW-29) who was the Chief Manager of the United Bank of India, also proved that from 23rd January, 1994 onwards Biswanath did not attend
is no independent witness to prove the said fact except the purported
confessional statement of the accused Mrinal Dutta. His purported confession
before the Magistrate is as under:
wife's brother Gobindo Roy used to stay on rent at the house of Alok Nath Dutta
at (2/C) Beadon Street, I was introduced to Alok through
Gobindo. Alok and me used to visit each other's house. Alok did not bear a good
character. He used to have stakes in horses, Satta (a sort of numbers game
played for gambling) and also used to go to at prostitutes. Alok's elder
brother Biswanath Dutta also used to stay at the same house.
did not have good relation among them. Alok told me during the Puja of 1993
that he would sell his house and also tried hard for that. On the last November
he told me that he wanted to sell the house but since his elder brother was not
agree to sign, I had to sign in the name of Biswanath Dutta. At first I did not
agree. Then he told that he would give me money. "You sign it". I was
in need of money, so I agreed with that. Then he took my signature in the name
of Biswanath Dutta in quite a few sheets of paper. He gave me Rs.5000/- (five
thousand rupees only) in instalments. After that he told me to sign in a quite
a few sheets of papers. In date 19/20 on the last January month of 1994 he came
to my house and said, I think the house cannot be sold "Dada" (Elder
brother) is not agreeing to put his signature. It is better to eliminate 'dada'
(elder brother). He said, "I am thinking of murdering my 'Dada' (Elder brother)".
I said him, "I cannot do this". He said, 'You had put fake signature.
So, if we get caught, we will not spare you either." Mamata Dutta is the
wife of Alok Dutta.
Roy signed some of the papers while Mamata signed some others. Gobindo is the
brother of my wife.
also the husband of my wife's sister. He left after we stopped and on the
following I went to Alok's place.
told me further that he would pay me Rs.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.
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.
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.
were sitting inside the room. At about 12/12.30 p.m. two daughters of Aloke were slept. Then Alok came outside.
After some time came inside the room and said, Dada (elder brother) had slept.
Then Mamata gave Alok a rug. Gobindo, Alok and I came outside. At once Gobinda
held two legs of Biswanath. I held two hands.
suffocated Biswanath on placing the rug on his face and neck, after 7/8 minutes
Alok took the rug from the face of Biswanath. Then he pulled the hairs of
Biswanath and on turning the eye lids he saw and said, "the work has been
done. Immediately four of us took the dead body inside the room and laid the
dead body inside the brick-structure after folding two legs. Then all of us
filled up the rest of the sand and bricks which were kept aside over the dead
body. Mamata handed down the water and the bricks. By the time we finished it
had dawned. After that at about 5.30/6 Alok left for his own home, while going
Alok said "you have to come again at noon-time." Again at noon time I came to his house. He then told me to sign in a
paper. After signing that I went to my house. > days after that I met Alok
at his place.
said, "I cannot give you any money now". I will see it after some
time. I could not sleep well after returning home. I used to move in fear I
stayed outside from my house for some days. On the last 07.03.1994 (Eng) police
arrested me from my house." T. Uddini (PW-43) was the Magistrate, before
whom the purported confession was made by Mrinal Dutta. He had issued a
certificate as is required under Section 164 of the Code of Criminal Procedure.
He testified that he had satisfied himself that confession made by Mrinal Dutta
Circumstance No. 16:
Mazumdar (PW-11) and Nripen Chandra Das (PW-12) are witnesses to Aloke Nath's
entering into an agreement of tenancy and shifting to Premises at JF-6/1,
Aswini Nagar, Bidhan Pally, Baguihati and recovery of goods. Atanu Banerjee,
Sub Inspector of Police (PW-48), also testified as regards recovery of goods
from the said premises.
now consider the evidences available on records for analyzing the reasonings of
the courts below vis-`-vis involvement of each of Appellants before us.
in respect of the property in question is not in dispute. The fact that Aloke
Nath and his three brothers and one sister inherited the said property from
their mother also stands admitted. A faint attempt has been made by the learned
counsel appearing 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.
events began from November 1993. It was only Aloke Nath who had asked Mrinal
Dutta to sign some blank papers impersonating Biswanath.
paid a sum of Rs.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 Rs.2,60,000/-, a sum of Rs.60,000/-
was paid to him. A sum amounting to Rs.30,000/-, Rs.20,000/- and Rs.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 Rs.65,000/- by cheque.
He must have spent the entire amount or at least a substantial part of it.
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 23.01.1994 upon
receipt of further advance. The first floor was handed over on 14.02.1994,
after Aloke Nath shifted to his new residence. So far as Aloke Nath is
concerned, having regard to the charges framed, both the circumstantial
evidence as also the extra judicial confession made by him are relevant. His
further statements leading to the recovery of the dead body as also recovery of
articles belonging to Biswanath are also relevant. It has also been proved that
he sold some of the articles belonging to the deceased.
however, disturbing to note that a confession has not been brought on records
in a manner contemplated by law. Law does not envisage taking on record the
entire confession by marking it an exhibit incorporating both the admissible
and inadmissible part thereof together.
intend to point out that only that part of confession which is admissible would
be leading to the recovery of dead body and/or recovery of articles of
Biswanath, the purported confession proceeded to state even the mode and manner
in which Biswanath was allegedly killed. It should not have been done. It may
influence the mind of the court.
State of Maharashtra v. Damu S/o Gopinath Shinde & Others (2000) 6 SCC 269
at p. 282 para 35] In Anter Singh v. State of Rajasthan [(2004) 10 SCC 657], it was stated:
The scope and ambit of Section 27 of the Evidence Act were illuminatingly
stated in Pulukuri Kottaya v. Emperor in the following words, which have become
locus classicus: (AIR p. 70, para 10) "It is fallacious to treat the fact
discovered within the section as equivalent to the object produced;
fact discovered embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information given must relate
distinctly to this fact. Information as to past user, or the past history, of
the object produced is not related to its discovery in the setting in which it
is discovered. Information supplied by a person in custody that I will produce
a knife concealed in the roof of my house does not lead to the discovery of a
knife; knives were discovered many years ago. It leads to the discovery of the
fact that a knife is concealed in the house of the informant to his knowledge,
and if the knife is proved to have been used in the commission of the offence,
the fact discovered is very relevant. But if to the statement 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.
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
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 advertisement in Anand Bazar Patrika on
31.01.94 inviting objections against the proposed registration of the property.
response to said advertisement, Aloke Nath's two elder brothers, Amar Nath and
Samar Nath with sister Anuradha raised objections. Aloke Nath wanted to settle
the matter with his co-owners. Presumably with that end in view he thought to
invite his brothers for discussion at the premises No. 2C, Beadon Street on 06.03.1994.
incident which had taken place on that day may be divided in two parts:
the manner in which PWs 3, 4 and 6 visited the place whereabout they were
wrongly informed as regards Biswanath's new address; and
they came back after a futile search and confronted Aloke Nath as to why they
were misled and again demanded information in regard thereto.
of the dead body has not been seriously disputed before us. Although in a given
situation, the court might have scrutinized the issue more closely, in view of
the overwhelming evidence, it is not necessary for us to do so. Identification
of the skeleton as that of Biswanath by Aloke Nath has not been disputed. It is
accepted that he had an extra tooth is also not in question. The height of the
deceased and his age again has also not been disputed.
fact that a platform was newly constructed is amply borne out from the
materials on record. Nandlal Singh (PW-15), his brothers PW-3 and PW-4 and the
brokers PW-17 and PW-18 stated, in no uncertain terms, that not only despite
having been asked Aloke Nath did not dismantle the same, but in fact the same
was re-enforced and painted with red colour.
as regards Aloke Nath's reply to the query regarding the construction of 'bedi'
that the same was meant for cooking purpose, is also not in much dispute.
fact that Aloke Nath had disposed of the belongings of the deceased and other
household materials is also not in much dispute. It is not necessary for us to
notice evidences of other witnesses who had testified about his character and
misconduct, namely, Biswanth Basak (PW-21), Soumitra Nayak (PW-22), Subir Mullick
(PW-25), Gobinda Sarkar (PWs- 26) and Bebashish Kar (PW-27). The circumstances
enumerated by the learned Trial Judge in the light of the evidences brought on
record and the extra judicial confession made by Aloke Nath, in our opinion,
lead to only one conclusion that the dead body recovered was that of Biswanath
and it was Aloke Nath who was responsible for his death.
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.
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' was constructed in his own bedroom which one day or the other, was bound
to be dismantled and the fact that a dead body buried therein would come out.
delivered possession of bedroom which was occupied by his brother Biswanath, as
also the premises which was in his occupation. He, therefore, was not in a
position to dismantle the bedi and remove the dead body clandestinely. It is
not that he was under any threat even by his brothers. He was required to give
a satisfactory explanation and he made a false statement on the morning of
06.03.1994 as regards the address of Biswanath. He was caught on the wrong
foot. Events which took place immediately thereafter also assume great
significance. His confession was made before a large number of persons. Each
one of them would not have been able to remember the words used by him in his confession.
But then there was absolutely no reason as to why the tenants of the premises
would tell a lie.
and PW-19, were tenants of the premises. It had not been suggested, that they
were in any way inimically disposed towards him.
Nath made extra judicial confession not only in presence of his own elder
brothers PW-3 and PW-4 but also in the presence of his nephew (PW-6), the
intending purchaser of the house (PW-15) as also the two tenants of the
premises PW-18 and PW-19. The evidences of these witnesses are consistent and
we do not see any reason as to why we should disagree with findings of the
courts below in this behalf.
attention has been drawn to a decision of this Court in Heramba Brahma and
Another v. State of Assam [AIR 1982 SC 1595], wherein this Court opined:
We are at a loss to understand how the High Court accepted the evidence of this
extra-judicial confession without examining the credentials of PW 2 Bistiram;
without ascertaining the words used; without referring to the decision of this
Court to be presently mentioned wherein it is succinctly stated that extra-
judicial confession to afford a piece of reliable evidence must pass the test
of reproduction of exact words, the reason or motive for confession and person selected
in whom confidence is reposed" The said decision was rendered on its own
facts. A purported confession was made by the Appellant therein to another
undertrial prisoner in jail. They were not known to each other. There had been
no previous association 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.
State of Rajasthan v. Raja Ram [(2003) 8 SCC 180], it
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 reliability of
the witness who gives the evidence. It is not open to any court to start with a
presumption that extra-judicial confession is a weak type of evidence. It would
depend on the nature of the circumstances, the time when the confession was
made and the credibility of the witnesses who speak to such a confession. Such
a confession can be relied upon and conviction can be founded thereon if the
evidence about the confession comes from the mouth of witnesses who appear to
be unbiased, not even remotely inimical to the accused, and in respect of whom
nothing is brought out which may tend to indicate that he may have a motive of
attributing an untruthful statement to the accused, the words spoken to by the
witness are clear, unambiguous and unmistakably convey that the accused is the
perpetrator of the crime and nothing is omitted by the witness which may
militate against it. After subjecting the evidence of the witness to a rigorous
test on the touchstone of credibility, the extra-judicial confession can be
accepted and can be the basis of a conviction if it passes the test of
If the evidence relating to extra-judicial confession is found credible after
being tested on the touchstone of credibility and acceptability, it can solely
form the basis of conviction. The requirement of corroboration as rightly
submitted by the learned counsel for the respondent-accused, is a matter of
prudence and not an invariable rule of law" In the case of Gagan Kanojia
and Anr. v. State of Punjab [Criminal Appeal Nos. 561-62 and
563 of 2005, decided on 24.11.2006, this Court opined :
confession, as is well-known, can form the basis of a conviction. By way of
abundant caution, however, the court may look for some corroboration.
confession cannot ipso facto be termed to be tainted. An extra-judicial
confession, if made voluntarily and proved can be relied upon by the
courts." In Nazir Khan & Others v. State of Delhi [(2003) 8 SCC 461],
this Court held:
free and voluntary confession is deserving of the highest credit, because it is
presumed to flow from the highest sense of guilty" [See also Ram Khilari
v. State of Rajasthan (1999) 9 SCC 89; and Namala Subba
Rao v. State of A.P. 2006 (10) SCALE 253].
will also be relevant to consider State of Rajasthan v. Kashi Ram [2006 (11) SCALE 440], wherein this court observed:
was nothing to show that he had reasons to confide in them. The evidence
appeared to be unnatural and unbelievable.
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:
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.
aforementioned evidence, the involvement of Aloke Nath, in our opinion, is
proved beyond any shadow of doubt.
therefore, hold that he has rightly been convicted of charges leveled against
have analyzed the evidences adduced by the prosecution to establish sixteen
purported circumstances which had been relied upon by the prosecution in order
to bring home the guilt of the other Appellants herein.
Nos. 14 and 15 enumerated by the learned Trial Judge directly relate to the
manner in which Biswanath was allegedly murdered.
will hereafter proceed on the basis that Circumstance No. 1 to 13 had also been
proved against them also. The question which would, however, arise is as to
whether the circumstances leading to establishment of the guilt of the murder
of Biswanath can be said to have been proved by reason of the purported
circumstantial evidence as also the retracted confession of Mrinal Dutta and
extra judicial confession of Aloke Nath. So far as extra judicial confession of
Aloke Nath is concerned, he implicated only himself and did not implicate any
other person in the conspiracy.
nos. 1 to 13 are considered to be part of the same transactions but
Circumstances nos. 14 to 16 relate to distinct and different charges.
Appellants other than Aloke Nath, had not been seen by anybody else immediately
before or after the alleged occurrence. In fact there is no eye-witness to the
alleged occurrence. The neighbours were also not examined to show that any
untoward incident had taken place. There is furthermore no evidence on record
to show that any of Appellants had even taken part in concealment of the dead
body. The prosecution did not examine any witness to establish the case as to
how the other Appellants had helped Aloke Nath in procuring bricks and cement
or whether any other person had helped him in concealment of the dead body.
Aloke Nath had taken the entire blame on himself and did not speak anything in
regard to involvement of the other appellants, there is no evidence in regard
to the meeting of mind with reference to the plot of murder. Aloke Nath
evidently was in a desperate situation. He required money. Others did not.
Motive on the part of other Appellants is not explicit. Therefore, others
cannot be treated to be his accomplice. Even the statements made by him,
leading to recovery of the dead body or other articles belonging to the
deceased, do not implicate the other Appellants in any manner whatsoever.
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.
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 evidence
in a number of cases. The process started with Hanumant Govind Nargundkar and
Another v. State of Madhya
Pradesh [AIR 1952 SC
343] wherein the law was laid down in the following terms :
is well to remember that in cases where the evidence is of a circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn
should in the first instance be fully established, and all the facts so
established should be consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a conclusive nature and tendency
and they should be such as to exclude every hypothesis but the one proposed to
be proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to show that within all human
probability the act must have been done by the accused. In spite of the
forceful arguments addressed to us by the learned Advocate-General on behalf of
the State we have not been able to discover any such evidence either intrinsic
within Exhibit P-3-A or outside and we are constrained to observe that the
courts below have just fallen into the error against which warning was uttered
by Baron Alderson in the above mentioned case." Yet again in Sharad
Birdhichand Sarda v. State of Maharashtra
[AIR 1984 SC 1622 = (1984) 4 SCC 116], this Court laid down the law in the
following terms :
A close analysis of this decision would show that the following conditions must
be fulfilled before a case against an accused can be said to be fully
circumstances from which the conclusion of guilt is to be drawn should be fully
be noted here that this Court indicated that the circumstances concerned
"must or should" and not "may be" established. There is not
only a grammatical but a legal distinction between "may be proved"
and "must be or should be proved" as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were
made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary
principle that the accused must be and not merely may be guilty before a court
can convict and the mental distance between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions."
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,
circumstances should be of a conclusive nature and tendency,
should exclude every possible hypothesis except the one to be proved, and
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:
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.
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
sentence, a very careful, cautious and meticulous approach was necessary to be
made." The murder might have been committed in a very cruel and revolting
manner but that may itself be a reason for scrutinizing the evidence a bit more
Kashmira Singh v. State of M.P. [AIR 1952
SC 159], it was observed:
The murder was a particularly cruel and revolting one and for that reason it
will be necessary to examine the evidence with more than ordinary care lest the
shocking nature of the crime induce an instinctive reaction against a
dispassionate judicial scrutiny of the facts and law." In Swaran Singh Rattan
Singh v. State of Punjab [AIR 1957 SC 637], this Court
as a whole, the prosecution story may be true; but between 'may be true' and
'must be true' there is inevitably a long distance to travel and the whole of
this distance must be covered by legal, reliable and unimpeachable evidence
before an accused can be convicted." In Mousam Singha Roy and Others v.
State of West Bengal [(2003) 12 SCC 377], this Court
Before we conclude, we must place on record the fact that we are not unaware of
the degree of agony and frustration that may be caused to the society in
general and the families of the victims in particular, by the fact that a
heinous crime like this goes unpunished, but then the law does not permit the
courts to punish the accused on the basis of moral conviction or on suspicion
burden of proof in a criminal trial never shifts, and it is a`lways the burden
of the prosecution to prove its case beyond reasonable doubt on the basis of
acceptable evidence" It was furthermore observed:
It is also a settled principle of criminal jurisprudence that the more serious
the offence, the stricter the degree of proof, since a higher degree of
assurance is required to convict the accused."
ordinarily is admissible in evidence. It is a relevant fact.
be acted upon. Confession may under certain circumstances and subject to law
laid down by the superior judiciary from time to time form the basis for
conviction. It is, however, trite that for the said purpose the court has to
satisfy itself in regard to:
of the confession;
truthfulness of the confession;
Court in Shankaria v. State of Rajasthan
[(1978) 3 SCC 435] stated the law thus :
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:
Whether the confession was perfectly voluntary?
so, whether it is true and trustworthy ?
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 any substantive piece of evidence
there is no rigid canon of universal application. Even so, one broad method
which may be useful in most cases for evaluating a confession, may be
indicated. The Court should carefully examine the confession and compare it
with the rest of the evidence, in the light of the surrounding circumstances
and probabilities of the case. If on such examination and comparison, the
confession appears to be a probable catalogue of events and naturally fits in
with the rest of the evidence and the surrounding circumstances, it may be
taken to have satisfied the second test." [Also see Anil @ Raju Namdev
Patil v. Administration of Daman and Diu,
Daman and Anr. - 2006 (12) SCALE5 16].
detailed confession which would otherwise be within the special knowledge of
the accused may itself be not sufficient to raise a presumption that confession
is a truthful one. Main features of a confession are required to be verified.
If it is not done, no conviction can be based only on the sole basis thereof.
Muthuswami v. State of Madras [AIR 1954 SC 4], this Court opined :
The only reason the High Court give for accepting the confession is because the
learned Judges considered there was intrinsic material to indicate its
genuineness. But the only feature the learned Judges specify is that it
contains a wealth of detail which could not have been invented.
the point overlooked is that none of this detail has been tested. The
confession is a long and rambling one which could have been invented by an
agile mind or pieced together after tutoring. What would have been difficult is
to have set out a true set of facts in that manner. But unless the main
features of the story are shown to be true, it is, in our opinion, unsafe to
regard mere wealth of uncorroborated detail as a safeguard of truth."
notice that till the purported judicial confession of Mrinal Dutta was recorded
by PW-43, evidences collected during investigation were only suggestive of the
fact that some person(s) had executed documents impersonating Biswanath. In
fact the witnesses did not recognize Mrinal Dutta to be impersonating Biswanath.
It was expected of the Investigating Authority to put Mrinal Dutta on test
identification parade to prove the charge of impersonation of Biswanath. Mrinal
Dutta was arrested along with other accused 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.
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.
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.
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.
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 Police
Inspector has not been cross-examined on the said point, but the fact remains
that the confession stood retracted and, thus, we have no option but to
consider the legal aspect thereof having regard to the fact situation obtaining
court's scrutiny in regard to the acceptability of a judicial confession would
not stop only because there was a failure on the part of the defence counsel to
cross-examine the said witness, more so when the offence is said to be a grave
Postulates and Retracted confession :
20(3) of the Constitution of India provides that no person accused of any
offence shall be compelled to be a witness against himself.
right to remain silent is an extension of the rule of civil liberty enjoined by
the guarantee under Article 20 (3) and also humanizing standards under Article
21 we need to tread cautiously while construing retracted confession. Although
such caution is subject to some exceptions such as per se evidence of the
motivating factors of retraction or retraction based on extraneous
this regard it is important to address the scope and ambit of Article 20(3)
i.e. at which stage of criminal process the safeguard becomes operative. In
Smt. Nandini Satpathy v. P.L. Dani and Another [AIR 1978 SC 1025], this Court
stated the law thus :
We hold that Section 161 enables the police to examine the accused during
investigation. The prohibitive sweep of Article 20(3) goes back to the stage of
police interrogation not, as contended, commencing in court only. In our
judgment, the provisions of Article 20(3) and Section 161(1) substantially
cover the same area, so far as police investigations are concerned. The ban on
self-accusation and the right to silence, while one investigation or trial is
under way, goes beyond that case and protects the accused in regard to other
offences pending or imminent, which may deter him from voluntary disclosure of
criminatory matter." In this context, it will be useful to refer to the
following passage from the decision of this Court in State (N.C.T. of Delhi) v.
Navjot Sandhu @ Afsan Guru [(2005)11SCC 600] :
Court rejected the contention advanced on behalf of the State that the two
provisions, namely, Article 20(3) and Section 161, did not operate at the
anterior stages before the 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].
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 vein the
law on retracted confession must be judged in the context of each case.
paradigm on retracted confession:
this regard it is important to consider the retracted confession within the
legislative paradigm laid down under Sections 24 to 26 of the Indian Evidence
Act and Section 162(1) and Section 164 of the Code of Criminal Procedure, 1973.
it will be in the fitness of the case to appraise the value of retracted
confession for the co-accused under section 30 of The Indian Evidence Act a
24 to 30 deal with confession. Section 24 speaks of the effect of a confession
made by an accused through inducement, threat or promise proceeding from a
'person in authority'. Whereas section 25 and section 26 deal with situations
where such 'person in authority' is police. It is an institutionalized
presumption against confession extracted by police or in police custody. In
that frame of reference, Section 24 is the genus and sections 25 and 26 are its
species. In other words, section 25 and section 26 are simple corollaries
flowing out of the axiomatic and generalized proposition (confession caused by
inducement where inducement proceeds from a person in authority, is bad in law)
contained in section 24. They are directed towards assessing the value of a
confession made to a police officer or in police custody.
policy underlying behind Sections 25 and 26 is to make it a substantive rule of
law that confessions whenever and wherever made to the police, or while in the
custody of the police unless made in the immediate presence of a magistrate,
shall be presumed to have been obtained under the circumstances mentioned in
Section 24 and, therefore, inadmissible, except so far as is provided by
Section 27 of the Act.
164, however, makes the confession before a Magistrate admissible in evidence.
The manner in which such confession is to be recorded by the Magistrate is
provided under Section 164 of the Code of Criminal Procedure. The said
provision, inter alia, seeks to protect an accused from making a confession,
which may include a confession before a Magistrate, still as may be under
influence, threat or promise from a person in authority. It takes into its
embrace the right of an accused flowing from Article 20(3) of the Constitution
of India as also Article 21 thereof.
Section 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].
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.
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 confession is truly
voluntary and had not been by reason of any inducement, threat or torture.
fact that the accused was produced from the police custody is accepted. But it
was considered in a routine manner. The learned Magistrate in his evidence
could not even state as to whether the appellants had any injury on his person
or whether there had been any tainted marks therefor.
courts while applying the law must give due regard to its past experience. The
past experience of the courts as also the decisions rendered by the superior
courts should be taken as a wholesome guide. We must remind ourselves that
despite the fact that procedural safeguards contained in Section 164 of the Cr.
P.C. may be satisfied, but the courts must look for truthfulness and
voluntariness thereof. It must, however, be remembered that it may be retracted
subsequently. The court must, thus, take adequate precaution. Affirmative indication
of external pressure will render the retracted confession nugatory in effect.
The court must play a proactive role in unearthing objective evidence forming
the backdrop of retraction and later the examination of such evidence of
retraction. However in cases where none exists, the court must give the benefit
of doubt to the accused. Where there is no objective material available for
verifying the conditions in which the confession was retracted, the spirit of
section 24 of the Evidence Act (irrelevance of confession caused by inducement)
may be extended to retracted confession. An inverse presumption must be drawn
from absence of materials.
case of retracted confession, the courts while arriving at a finding of guilt
would not ordinarily rely solely thereupon and would look forward for
corroboration of material particulars. Such corroboration must not be referable
in nature. Such corroboration must be independent and conclusive in nature.
value of retracted confession:
retracted confession of a co-accused cannot be relied upon for the purpose of
finding corroboration for the retracted confession of an accused.
so held in Bhuboni Sahu v. R. [AIR 1949 PC 257], stating:
court may take the confession into consideration and thereby no doubt, makes
its evidence on which the court may act; but the section does not say that the
confession is to amount to proof. Clearly there must be other evidence. The
confession 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
interesting to note that in R. v. Thompson, [1893, 2 QB 12, 18], Cave, J.
stated the law thus :
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 a desire which vanishes as soon as he appears in a court of
justice." Straight J, observed in R v. Babulal, 6 A 509, 542, 543 "An
endless source of anxiety and difficulty to those who have to see that justice
is properly administeredI have said, and repeat now, it is incredible that the
extraordinarily large number of confessions, which come before us in the
criminal cases disposed of by this court, either in appeal or revision, should
have been voluntarily and freely made in every instance as representedthe
retraction follows almost invariably as a matter of course" [See Sarkar on
Evidence, 15th Edn. Volume 1 - page 466] The value of a retracted confession
is now well-known. The court must be satisfied that the confession at the first
instance is true and voluntary. [See Subramania Goundan v. The State of Madras [AIR 1958 SC 66] and Pyare Lal
Bhargava v. State of Rajasthan, [AIR 1963 SC 1094].
and prudence in accepting a retracted confession is an ordinary rule. [See
Puran v. The State of Punjab -AIR 1953 SC 459].
if a retracted confession is found to be corroborative in material particulars,
it may be the basis of conviction. [Balbir Singh v. State of Punjab - AIR 1957 SC 216].
notice that in 1950's and 1960's corroborative evidence in "material
particulars" was the rule. [See Puran (supra), Balbir Singh (supra), Nand
Kumar and Others v. State of Rajasthan 1963
Crl. LJ 702]. A distinctiveness was made in later years in favour of
"general corroboration" or "broad corroboration". [See for
General Corroboration - State of Maharashtra v. Bharat Chaganlal Raghani and Others [(2001) 9 SCC 1];
trend of Corroboration" - Jameel Ahmed and Another v. State of Rajasthan [(2003)
9 SCC 673]; and "Broad Corroboration" - Parmananda Pegu v. State of
Assam [AIR 2004 SC 4197] Whatever be the terminology used, one rule is almost
certain that no judgment of conviction shall be passed on an uncorroborated
retracted confession. The court shall consider the materials on record
objectively in regard to the reasons for retraction. It must arrive at a
finding that the confession was truthful and voluntary. Merit of the confession
being the voluntariness and truthfulness, the same, in no circumstances, should
be compromised. We are not oblivious of some of the decisions of this Court
which proceeded on the basis that conviction 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)].
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.
should not rely on the confession:
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 :
order No.265 goes to show that the Court passed order regarding production of
Jail Register of Presidency Jail dated 21.3.94. The report of the
Superintendent, Presidency Correctional Home dated 14.11.02 shows that the same
was not available. It was further stated in the said letter that if the said
register is available, the same will be sent to this Court at once.
said Register has not been produced, the Court is duty bound to take
presumption that the said Register could not be traced out.
should be stated here that the cease work was withdrawn long ago and during
this period, the defence lawyer for accused Minal Dutta did not take any step
to compel the superintendent Presidency Correctional Home to appear in person
and to produce the document. As today is fixed for D.W. and as no petition has
been filed the case is closed, considering the fact that the case is pending
for trial since 1994." The court, with respect, misdirected itself. It had
no such duty. It was in fact the other way found .
not in dispute that Mrinal Dutta had retracted from his confession.
value of the retracted confession was required to be considered on the
accusation of the accused that the confession was not voluntary. In his
application retracting from his confession, it was alleged :
Sir, my humble submission is that I am informing true facts of my case. I have
been implicated in the murder of Biswanath Dutta and the fraud committed. I am
not connected with these incidents and I know nothing about these acts. Police
came to my house on 7.3.94 to apprehend my brother-in-law Gobinda Roy.
was at my house on the said date. Police apprehended and brought me and Gobinda
Roy from my house. Thereafter implicated me in that murder and fraud. Then beat
me up severely and told me to state whatever they dictate and thereafter to
accept the same.
they would torture me and members of my family continuously in various manners
and would implicate in other cases also. They told me if you follow our
dictates we would save you. They made me make a confession as per their false
statements before a Respected Magistrate of Jorabagan Bankshall Court.
the fear of Police torture I and members of my family are on the brink of
destruction. My humble appeal to you to kindly take necessary action to save me
and members of my family from destruction." It is expected in a situation
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
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
be true that an application for adducing evidence had been filed by the
Appellants in terms of Section 311 of the Code of Criminal Procedure, but the
said evidence, if adduced would have tilted the balance one way or the other so
as to enable the court to come to the conclusion as to whether the purported
judicial confession made by Mrinal Dutta satisfies the tests laid down by this
Court in a large number of decisions. There was no reason for the court to draw
an adverse inference that the records had been destroyed. No such inference
could be drawn in law either in terms of Section 114 of the Indian Evidence Act
or any other law. The period during which such documents are preserved under
the provisions of the jail manual have not been referred to. No evidence had
been brought on record to show that the documents had in fact been destroyed.
The least the jail authorities could do was to produce the destruction register.
aforementioned backdrop, the court should give the benefit of doubt to the
accused instead of the prosecution. The learned Trial Judge, in our opinion,
should not have closed the case. He should have invoked his jurisdiction under
Section 311 of the Code of Criminal Procedure in the interest of justice and
instead of blaming the defence for non-examination of the Superintendent of
Presidency Jail, the court itself should have called upon authorities to
produce the document. The presumption raised by the court in this behalf is
of a retracted confession:
not suggesting that the confession was not proved, but the question is what
would be the effect of a retracted confession. It is now a well-settled
principle of law that a retracted confession is a weak evidence.
court while relying on such retracted confession must satisfy itself that the
same is truthful and trustworthy. Evidences brought on records by way of
judicial confession which stood retracted should be substantially corroborated
by other independent and cogent evidences, which would lend adequate assurance
to the court that it may seek to rely thereupon.
Paramananda Pegu (supra)] In Navjot Sandhu @ Afsan Guru (supra), this Court observed
As to what should be the legal approach of the court called upon to convict a
person primarily in the light of the confession or a retracted confession has
been succinctly summarised in Bharat v. State of U.P.
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.
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.
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 court
is satisfied that it was retracted because of an afterthought or advice, the
retraction may not weigh with the court if the general facts proved in the case
and the tenor of the confession as made and the circumstances of its making and
withdrawal warrant its user. All the same, the courts do not act upon the
retracted confession without finding assurance from some other sources as to
the guilt of the accused.
it can be stated that a true confession made voluntarily may be acted upon with
slight evidence to corroborate it, but a retracted confession requires the
general assurance that the retraction was an afterthought and that the earlier statement
was true" [See also Puran (supra), Bharat v. State of UP (1971) 3 SCC 950,
Kora Ghasi v. State (1983) 2 SCC 251, Preetam v. State of MP (1996) 10 SCC 432,
Bhagwan Singh v. State of MP (2003) 3 SCC 21].
Altaf Ahmad, relied upon a decision of this Court in Sidharth and Others v.
State of Bihar [(2005) 12 SCC 545] wherein having
regard to the extensive evidences produced by the prosecution, it was held that
the same lent corroboration to the confession made by the accused. In that case
the circumstances had been independent de'hors the confession. It was opined :
The confession made by the appellant Arnit Das is voluntary and is fully
corroborated by the above items of evidence. The Sessions Judge was perfectly
justified in relying on the confession made by the appellant Arnit Das."
Reliance has also been placed by Mr. Ahmad on State of Tamil Nadu v. Kutty @ Lakshmi Narsimhan
[(2001) 6 SCC 550]. Therein materials were brought on records to lend assurance
to the court about the truthfulness of the confession made. There had been
several independent circumstances which had lent assurance thereto, although
the same had been retracted.
instant case, it is an admitted position that on 19th March, 1994, Mrinal Dutta was taken to the Magistrate (PW-43) straight
from the Police custody.
though the Magistrate had sent the accused to jail custody on 19th March so
that he could further reflect on the matter, when he was brought to the
Magistrate again on 21.03.1994 he was, as subsequently asserted by Mrinal
Dutta, first taken to Alipore Police Station and was threatended and tortured
and was also tutored as to what he should tell the Magistrate in his
confession. PW-48 the I.O. was cross examined on this point and suggestions
were also given to him which he denied.
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
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.
this case, the courts below have failed to notice the legality of the judicial
confession. There did not exist any evidence against Mrinal Dutta.
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 case, the
courts started to consider the matter from the angle of confession then picked
up facts from the deposition of the witnesses and again came back to the confession.
evidences merely established to defraud the intending purchasers.
that point of time, Aloke Nath thought it fit to do away with Biswanath, as he
was proved to be an obstruction in his attempt to dispose of the property. The
Appellants might or might not have joined hands with him, but unless there
exist sufficient and cogent reasons to link them with the alleged crime
committed by Aloke Nath, it may not be said that they are also guilty thereof.
of retracted confession of Mrinal Dutta on Appellants other than Aloke Nath :
so far as the accusation against Babu Roy and Mamata Dutta are concerned, the
only evidence against them was the judicial confession of Mrinal Dutta. The
same was admissible against them only under Section 30 of the Indian Evidence
not in dispute that apart from general evidence in regard to commission of
forgery etc., only evidence of involvement of Mamata and Babu Roy is the
judicial confession made by Mrinal Dutta. The extra judicial confession made by
Aloke Nath before the prosecution witnesses, as noticed hereinbefore, does not
implicate these Appellants. Only in his judicial confession, Mrinal Dutta has
assigned roles to these accused persons as having common intention to commit
the offence of murder of Biswanath with Aloke Nath.
confession is admissible in evidence against the maker thereof under Section 26
of the Indian Evidence Act; but against the co- accused, Section 30 will be
30 of the Indian Evidence Act reads thus :
Consideration of proved confession affecting person making it and others
jointly under trial for same offence. When more persons than one are being
tried jointly for the same offence, and a confession made by one of such
persons affecting himself and some other of such persons is proved, the Court
may take into consideration such confession as against such other person as
well as against the person who makes such confession." The expression 'the
court may take into consideration such confession' is significant. It signifies
that such confession by the maker as against the co-accused himself should be
treated as a piece of corroborative 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.
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.
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).
Sidhartha (supra), this Court held :
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, a conviction could safely be based on it. If it is capable of
belief independently of the confession, then of course it is not necessary to
call the confession in aid. But cases may arise where the judge is not prepared
to act on the other evidence as it stands, even though, if believed, it would
be sufficient to sustain a conviction. In such an event the judge may call in
aid the confession and use it to lend assurance to the other evidence and thus
fortify himself in believing what without the aid of the confession he would
not be prepared to accept." In Ram Parkash v. The State of Punjab [1959 SCR 1219], it was held :
a voluntary and true confession made by an accused though it was subsequently
retracted by him, can be taken into consideration against a co-accused by
virtue of s. 30 of the Indian Evidence Act, but as a matter of prudence and
practice the court should not act upon it to sustain a conviction of the
co-accused without full and strong corroboration in material particulars both
as to the crime and as to his connection with that crime.
amount of credibility to be attached to a retracted confession would depend
upon the circumstances of each particular case." It was further opined:
the evidence in the case the confession of P was voluntary and true and was
strongly corroborated in material particulars both concerning the general story
told in the confession concerning the crime and the appellant's connection with
crime." [See Navjot Sandhu alias Afsan Guru (supra) and Jaswant Gir v.
State of Punjab (2005) 12 SCC 438].
therefore, express our inability, with respect, to agree with this part of the
judgment of the learned judge.
this case an instance of 'rarest of rare cases' meriting imposition of capital
sentence is now the question? What are the parameters, are there any ? Several
factors are relevant. One of them being a long lapse of time [See Paltan Mallah
(supra)] In Bachan Singh v. State of Punjab [(1980 2 SCC 684 = (AIR 1980 SCC
898], a Constitution Bench dealt with the validity of death sentence and while
doing so the rule of rarest of rare cases was laid down. It was reiterated in
Machhi Singh and Others v. State of Punjab [(1983) 3 SCC 470]. The illustrative circumstances which were laid down
in the aforementioned cases are:
When the murder is committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and extreme indignation
of the community.
When the murder is committed for a motive which evinces total depravity and
meanness; e.g. murder by hired assassin for money or reward;
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.
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.
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.
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 murderer is in a dominating
position, or a public figure generally loved and respected by the community.
are, however, not oblivious of the fact that the court also should not remain
unmindful to protect the injured and with that view of the matter recommend
award of proper sentence having regard to the nature of offence.
Sevaka Perumal v. State of Tamil Nadu -
AIR 1991 SC 1463] In Devender Pal Singh v. State of NCT of Delhi [AIR
2002 SC 1661] the death sentence was upheld by a majority of 2:1
notwithstanding the dissenting view holding the accused to be innocent.
also Dhananjoy Chatterjee @ Dhana v. State of West Bengal & Others (2004) 9
notice that in Saibanna v. State of Karnataka [JT 2005 (5) SC 564 = (2005) 4 SCC 165], this Court imposed death
punishment in a case where the accused committed a murder while undergoing life
we are not concerned with such a case, the view taken therein is doubtful.
also notice that in Ram Anup Singh and Others v. State of Bihar [(2002) 6 SCC 686] and Bachittar
Singh and Another v. State of Punjab [(2002)
8 SCC 125], this Court did not impose a death penalty although the case
involved murder of a brother by another brother.
not necessary for us to notice a large number of decisions which are available
in the reports, except a few recent decisions.
Surendra Pal Shivbalakpal v. State of Gujarat [(2005) 3 SCC 127], death sentence was not imposed in a case where the
offence involved was rape with murder of a girl, stating :
The next question that arises for consideration is whether this is a
"rarest of rare case"; we do not think that this is a "rarest of
rare case" in which death penalty should be imposed on the appellant. The
appellant was aged 36 years at the time of the occurrence and there is no
evidence that the appellant had been involved in any other criminal case
previously and the appellant was a migrant labourer from U.P. and was living in
impecunious circumstances and it cannot be said that he would be a menace to
society in future and no materials are placed before us to draw such a
conclusion. We do not think that the death penalty was warranted in this case.
We confirm conviction of the appellant on all the counts, but the sentence of
death penalty imposed on him for the offence under Section 302 IPC is commuted
to life imprisonment." Therein it was also noticed that the accused was
prone to do such crime.
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.
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 :
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
has also been drawn to a judgment of this Court in State of Rajasthan v. Kheraj
Ram (2003) 8 SCC 224] by Mr. Ahmad, wherein this Court, while awarding death
punishment, held :
A convict hovers between life and death when the question of gravity of the
offence and award of adequate sentence comes up for consideration. Mankind has
shifted from the state of nature towards a civilized society and it is no
longer the physical opinion of the majority that takes away the liberty of a
citizen by convicting him and making him suffer a sentence of imprisonment.
Award of punishment following conviction at a trial in a system wedded to the
rule of law is the outcome of cool deliberation in the courtroom after adequate
hearing is afforded to the parties, accusations are brought against the
accused, the prosecuted is given an opportunity of meeting the accusations by
establishing his innocence. It is the outcome of cool deliberation and the
screening of the material by the informed man i.e. the Judge that leads to
determination of the lis.
The principle of proportion between crime and punishment is a principle of just
deserts that serves as the foundation of every criminal sentence that is
principle of criminal justice it is hardly less familiar or less important than
the principle that only the guilty ought to be punished. Indeed, the
requirement that punishment need not be disproportionately great, which is a
corollary of just deserts, is dictated by the same principle that does not
allow punishment of the innocent, for any punishment in excess of what is
deserved for the criminal conduct is punishment without guilt.
The criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably, to permit sentences that
reflect more subtle considerations of culpability that are raised by the
special facts of each case. Judges in essence affirm that punishment ought
always to fit the crime; yet in practice sentences are determined largely by
it is the correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of circulation, and
sometimes even the terrific results of his crime.
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.
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.
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 :
very idea of attacking and overpowering a sovereign democratic institution by
using powerful arms and explosives and imperiling the safety of a multitude of
peoples' representatives, constitutional functionaries and officials of
Government of India and engaging into a combat with security forces is a terrorist
act of gravest severity. It is a classic example of rarest of rare case."
In Holiram Bordoloi v. State of Assam, [(2005) 3 SCC 793] appellant along with
17 others was convicted for murdering 4 persons by burning them alive in a hut.
Death penalty was imposed on the appellant.
Court embarked on a discussion as to the aggravating circumstances and
mitigating circumstances, observing:
calculated, cold-blooded murder has always been regarded as one of an
aggravated kind." A "murder is "diabolically conceived and
cruelly executed", it would justify the imposition of the death penalty on
the murderer. In many cases, the extremely cruel or beastly manner of the
commission of murder is itself a demonstrated index of the depraved character
of the perpetrator. That is why; it is not desirable to consider the
circumstances of the crime and the circumstances of the criminal in two
separate watertight compartments." This Court also affirming the death
penalty, held :
when questioned under Section 235 (2) of Criminal Procedure Code, the accused
stated that he had nothing to say on the point of sentence. The fact that the
appellant remained silent would show that he has no repentance for the ghastly
act he committed." In Pratap Singh v. State of Jharkhand and Anr. [(2005) 3 SCC 551], a
Trade Union leader was shot dead by the appellant as a result of a labour
dispute. This Court observed that the incident leading to these appeals had
taken place as early as 1991. As there is a long lapse of time, the court did
not think that the sentence of death imposed by the Sessions Court is justified
in the circumstances.
Amrit Singh v. State of Punjab [2006 (11) SCALE 309], this Court while taking
account of the available evidence observed that it was possible for the death
to have occurred because of excessive bleeding and not by strangulation as the
Trial Court and High Court held. This Court also noted that there were no
eye-witnesses that actually saw the commission of the offence and it was only
on the basis of circumstantial evidence, that he was convicted. This Court
noted that although the crime was brutal, it could not be said it was the
rarest of the rare case. This Court observed :
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.
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 :
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 :
The appellants have been awarded capital punishment for committing these
murders and their sentence was confirmed by the High Court. Going by the
details of the case, we find no mitigating circumstances in favour of the
appellant, except for the fact that they are women. Further, the nature of the
crime and the systematic way in which each child was kidnapped and killed amply
demonstrates the depravity of the mind of the appellants. These appellants
indulged in criminal activities for a very long period and continued it till
they were caught by the police. They very cleverly executed their plans of
kidnapping the children and the moment they were no longer useful, they killed
them and threw the dead body at some deserted place. The appellants had been a
menace to the society and the people in the locality were completely horrified
and they could not send their children even to schools. The appellants had not
been committing these crimes under any compulsion but they took it very
casually and killed all these children, least bothering about their lives or
agony of their parents.
have carefully considered the whole aspects of the case and are also alive to
the new trends in the sentencing system in criminology. We do not think that
these appellants are likely to be reformed" [Emphasis supplied] In Gurmeet
Singh v. State of Uttar Pradesh [(2005) 12 SCC 107] appellant and his companion
Lakha Singh (who died during the course of trial proceedings) committed the
murder of thirteen members of his own family. This Court observed :
the victims were closely related to the appellant and they were killed in the
most dastardly manner. Most of the victims were sleeping when they were
attacked. The appellant did not spare even the small kids with whom he had
apparently no enmity. The appellant did not have even a grain of mercy or human
kindness in his heart.
all these aspects, we do not think that this is a fit case where the death
penalty is to be commuted to life imprisonment." It is evident that
different Benches had taken different views in the matter.
must remind ourselves that there has been a growing demand in the international
fora that death penalty should be abolished. [See Second Optional Protocol to
the International Covenants on Civil and Political Rights and the Protocol to
the American Constitution on Human Rights to abolish death penalty]. Pursuant
to or in 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.
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 :
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,  2 SCR 690, observed :
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 a murder committed while the
offender was under sentence of imprisonment for life. The court addressed its
attention to article 21 of the Indian constitution, which protects the right to
life. Certain observations made by Chandrachud CJ, at pp. 704, 707 and 713 are
relevant to the present discussion:
apart from that, a provision of law which deprives the court of the use of its
wise and beneficent discretion in a matter of life and death, without regard to
the circumstances in which the offence was committed and, therefore, without
regard to the gravity of the offence, cannot but be regarded as harsh, unjust
and unfair ... Thus, there is no justification for prescribing a mandatory
sentence of death for the offence of murder committed inside or outside the
prison by a person who is under the sentence of life imprisonment. A
standardized mandatory sentence, of that too in the form of a sentence of
death, fails to take into account the facts and circumstances of each
particular case." [See also Hughes, R v (Saint Lucia)  UKPC 12] In the case of Roper v. Simmons, [543 U.S.
551 (2005)], at age 17, respondent planned and committed a capital murder.
After he had turned 18, he was sentenced to death. His direct appeal and
subsequent petitions for state and federal postconviction relief were rejected.
The court held that the Eighth and Fourteenth Amendments forbid imposition of
the death penalty on offenders who were under the age of 18 when their crimes
court observed that:
overwhelming weight of international opinion against the juvenile death penalty
is not controlling here, but provides respected and significant confirmation
for the Court's determination that the penalty is disproportionate punishment
for offenders under 18. The United States
is the only country in the world that continues to give official sanction to
the juvenile penalty.
does not lessen fidelity to the Constitution or pride in its origins to
acknowledge that the express affirmation of certain fundamental rights by other
nations and peoples underscores the centrality of those same rights within our
own heritage of freedom." There are some precedents of this Court e.g.
Sahdeo and Others etc.
State of U.P. [(2004) 10 SCC 682- Para 9] and Sheikh Ishaqe and Others v. State of Bihar (1995) 3 SCC 392], which are
authorities for the proposition 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
we do not find any special reason for awarding death penalty which is
Kishori v. State of Delhi [(1999) 1 SCC 148], this Court observed :
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 course of our judgment as to how mob
psychology works and it is very difficult to gauge or assess what the notions
of society are in a given situation. There may be one section of society which
may cry for a very deterrent sentence while another section of society may
exhort upon the court to be lenient in the matter. To gauge such notions is to
rely upon highly slippery imponderables and, in this case, we cannot be
definite about the views of society." [See also Balraj v. State of U.P. (1994) 4 SCC 29; and Jashubha Bharatsing Gohil and
Others - (1994) 4 SCC 353] Sentencing indisputably is a part of criminal
jurisprudence. More importantly, in death penalty references sentencing issues
requires serious deliberation. Cases of this nature warrant objective
evaluation of indicia and legal thresholds.
In Union of India (UOI)
and Ors. v. Devendra Rai [(2006) 2 SCC 243] accused was awarded death sentence
for having caused homicidal death of two army personnel and for having caused
grievous injuries with the intent of causing murder of two others, in a court
martial. The High Court upheld death penalty awarded. This Court, however, noticed
What is culled put from the decisions noted above is that while deciding the
question as to whether the extreme penalty of death sentence is to be awarded,
a balance sheet of aggravating and mitigating circumstances has to be drawn up.
the instant case, the High Court has not attempted to do that exercise and has
come to an abrupt conclusion about the case being not covered by the rarest of
rare category. That is clearly contrary to the principles set out by this Court
in the decisions noted above. We deem it appropriate to remit the matter to the
High Court to consider the matter afresh and take the decision as to the
appropriate sentence. The exercise has only to be limited to that aspect alone
as the High Court itself has in the impugned judgment found that the conviction
was well merited." When a statute provides for death penalty, so long as
the same is not ultra vires, application thereof cannot be altogether
eliminated. But keeping in view the decision of the Constitution Bench of this
Court, the jurisdiction of this Court in this behalf is limited. Death penalty
can be awarded only if in the opinion of the court, the case answers the
description of rarest of rare cases. What would constitute a 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
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 material to show that
Aloke Nath had not been maintaining good relation with Biswanath. There might
have difference of opinion between the brothers in regard to the question of
sale of house, but we have nothing before us to say one way or the other in
this behalf. Aloke Nath was in need of money; Biswanath, an employee of a bank
and being a bachelor probably did not require the same. He might have other
idea e.g. he did not want to loose his place of abode. Aloke Nath had many
vices, whereas Biswanath did not have any. But they had been living in the same
premises for a long time. Both of them have been looking after their parents.
In fact, only it was the other brothers, namely, Amar Nath and Samar Nath had
filed a suit against their mother as well as Aloke Nath and Biswanath,
apprehending that their mother would bequeath the property in their favour,
and, thus, excluding them from inheriting the same.
the facts and circumstances of this case are also of the opinion that the
prosecution having been failed to prove the case of conspiracy against
Appellant herein, the case cannot be said to be one constituting rarest of rare
the reasons aforementioned, Criminal Appeal No. 867-868 of 2005, as far as Shib
Shankar Roy @ Babu Roy and Mamta Dutta are concerned, and Crl. Appeal No. 875
of 2005 preferred by Mrinal Dutta, are allowed, and the judgment of conviction
and sentence passed against them is set aside. They may forthwith be released
unless wanted in connection with any other case. Criminal Appeal No.867-68 of
2005, as far as Aloke Nath is concerned, is allowed in part and to the extent
that the death penalty imposed upon him is commuted to imprisonment for life.
Other part of the sentences is also upheld.