Rabindra Kumar Pal @
Dara Singh Vs Republic of India
Sathasivam, J.
1)
These
appeals relate to a sensational case of triple murder of an Australian
Christian Missionary – Graham Stuart Staines and his two minor sons, namely,
Philip Staines, aged about 10 years and Timothy Staines aged about 6 years.
2)
Criminal
Appeal No. 1366 of 2005 is filed by Rabindra Kumar Pal @ Dara Singh against the
final judgment and order dated 19.05.2005 passed by the High Court of Orissa at
Cuttack in Criminal Appeal No. 239 of 2003 whereby the High Court dismissed the
appeal of the appellant upholding the conviction and commuting the death
sentence passed by the trial Court into that of life imprisonment. Against the
same judgment, Criminal Appeal No. 1259 of 2007 is filed by Mahendra Hembram challenging
his life imprisonment awarded by the trial Court and confirmed by the High
Court. Against the acquittal of rest of the accused by the High Court, the
Central Bureau of Investigation (in short "the CBI") filed Criminal
Appeal Nos. 1357-1365 of 2005. Since all the appeals arose from the common
judgment of the High Court and relating to the very same incident that took
place in the midnight of 22.01.1999/23.01.1999, they are being disposed of by
this judgment.
3)
The
case of the prosecution is as under:
a. Graham Stuart
Staines, a Christian Missionary from Australia, was working among the tribal
people especially lepers of the State of Orissa. His two minor sons, namely, Philip
Staines and Timothy Staines were burnt to death along with their father in the
midnight of 22.01.1999/23.01.1999.The deceased-Graham Staines was engaged in
propagating and preaching Christianity in the tribal area of interior Orissa. Manoharpur
is a remote tribal village under the Anandapur Police Station of the District
Keonjhar of Orissa. Every year, soon after the Makar Sankranti, the said
missionary used to come to the village to conduct the Jungle Camp. Accordingly,
on 20.01.1999, the deceased-Staines, along with his two minor sons Philip and
Timothy and several other persons came to the village Manoharpur. They
conducted the camp for next two days by hosting a series of programmes.
b. On 22.01.1999, the
Missionary Team, as usual conducted different programmes in the village near
the Church and retired for the day. Graham Staines and his two minor sons slept
in their vehicle parked outside the Church. In the mid-night, a mob of 60-70
people came to the spot and set fire to the vehicle in which the deceased
persons were sleeping. The mob prevented the deceased to get themselves out of
the vehicle as a result of which all the three persons got burnt in the
vehicle. The local police was informed about the incident on the next day.
c. Since the local
police was not able to proceed with the investigation satisfactorily, on
23.04.1999, the same was handed over to the State Crime Branch. Even the Crime Branch
failed to conduct the investigation, ultimately, the investigation was
transferred to CBI.
d. On 03.05.1999, the
investigation was taken over by the CBI. After thorough investigation, charge
sheet was filed by the CBI on 22.06.1999. On the basis of charge sheet, as many
as 14 accused persons were put to trial. Apart from these accused, one minor
was tried by Juvenile Court.
e. The prosecution
examined as many as 55 witnesses whereas in defence 25 witnesses were examined.
Series of documents were exhibited by the prosecution. By a common judgment and
order dated 15.09.2003 and 22.09.2003,Sessions Judge, Khurda convicted all the
accused and sentenced them for offences punishable under various sections. The
death sentence was passed against Dara Singh appellant in Criminal Appeal No.
1366 of 2005 and others were awarded sentence of life imprisonment.
f. The death reference
and the appeals filed by the convicted persons were heard together by the High
Court and were disposed of by common judgment dated 19.05.2005concluding that
the witnesses are not trustworthy and no credence should be given to their
statements and confessional statements were procured by the investigating
agency under threat and coercion. The High Court, by the impugned judgment,
modified the death sentence awarded to Dara Singh into life imprisonment and
confirmed the life imprisonment imposed on Mahendra Hembram and acquitted all
the other accused persons. Questioning the conviction and sentence of life
imprisonment, Dara Singh and Mahendra Hembram filed Criminal Appeal Nos. 1366
of 2005 and 1259 of 2007respectively and against the acquittal of rest of the
accused, CBI filed Criminal Appeal Nos. 1357-65 of 2005 before this Court.
4)
Heard
Mr. KTS Tulsi and Mr. Ratnakar Dash, learned senior counsel for the
accused/appellants and Mr. Vivek K.Tankha, learned Addl. Solicitor General for
the CBI.
5)
Mr.
K.T.S. Tulsi, learned senior counsel appearing for Rabindra Kumar Pal @ Dara
Singh (A1) and other accused in the appeals against acquittal filed by the CBI,
after taking us through all the relevant materials has raised the following contentions:-
i.
Confessions
of various accused persons, particularly, Rabi Soren (A9), Mahadev Mahanta
(A11) and Turam Ho (A12)under Section 164 of the Code of Criminal Procedure,
1973(hereinafter referred to as `Cr.P.C.') cannot be considered to be voluntary
on account of the fact that all the co-accused persons were produced before the
Magistrate from the police custody and were remanded back to police custody.
Similarly, Dayanidhi Patra @ Daya (A14) was produced from the police custody
for confession while Umakant Bhoi (A13) made his statement while on bail. Besides
all confessions being exculpatory and made after conspiracy ceased to be
operative and inadmissible.
ii.
Inasmuch
as recording of confessions of various accused persons was done after the
investigation was taken over by Jogendra Nayak (PW 55), I.O. of the CBI which
shows the extent to which strong arm tactics were used by the investigating
agency.
iii.
The
statements of eye-witnesses are contradictory to each other on all material
points.
iv.
There
are several circumstances which are inconsistent with the fire started by arson
from outside and several circumstances consistent with the fire emanating from
inside of the vehicle and then spread to rest of the vehicle after fuel tank
caught fire.
v.
This
Court in cases of appeals against acquittal has held that when two views are
possible, one in favour of the accused should be accepted.
6)
Mr.
Dash, learned senior counsel appearing for the accused Mahendra Hembram (A3)
reiterating the above submissions of Mr. Tulsi also pinpointed deficiency in
the prosecution case insofar as (A3) is concerned.
7)
Mr.
Vivek Tankha, learned Addl. Solicitor General, after taking us through oral and
documentary evidence, extensively refuted all the contentions of the learned
senior counsel for the accused and raised the following submissions:-
i.
The
High Court committed an error in altering the death sentence into life
imprisonment in favour of (A1) and acquitting all other accused except (A3). He
pointed out that the appreciation of the evidence by the High Court is wholly perverse
and it erroneously disregarded the testimony of twelve eye-witnesses.
ii.
The
High Court failed to appreciate the fact that the three accused, namely,
Mahendra Hembram (A3), Ojen @ Suresh Hansda (A7) and Renta Hembram (A10)
belonging to the same village were known to the eye-witnesses and, therefore,
there is no requirement to conduct Test Identification Parade (in short `TIP').
iii.
The
High Court erred in acquitting 11 accused persons on the sole ground that TIP
was not conducted and, therefore, identification by the eye-witnesses was
doubtful.
iv.
The
evidence of identification in Court is substantive evidence and that of the
identification in TIP is of corroborative value.
v.
The
High Court committed a serious error in law in disregarding the confessional
statements made under Section164 of the Cr.P.C. as well as the extra-judicial
confessions made by Dara Singh (A1) and Mahendra Hembram (A3)
vi.
The
High Court wrongly held inculcator confessional statements as exculpatory and
on that ground rejected the same. The High Court failed to appreciate that in
their confessional statements (A9), (A11), (A12), (A13) and (A14) have clearly
admitted their plan for committing the crime.
vii.
The
adverse observations against (PW 55) the Investigating Officer of CBI, by the High
Court are not warranted and in any event not supported by any material.
viii.
Inasmuch
as it was Dara Singh (A1) who originated and organized the heinous act and also
prevented the deceased persons from coming out of the burning vehicle, the High
Court ought to have confirmed his death sentence.
ix.
The
reasons given by the High Court in acquitting 11persons are unacceptable and
the judgment to that extent is liable to be set aside.
8)
We
have considered the rival submissions and perused all the oral and documentary
evidence led by the prosecution and defence.
9)
With
the various materials in the form of oral and documentary evidence, reasoning
of the trial Judge and the ultimate decision of the High Court, we have to find
out whether the conviction and sentence of life imprisonment imposed on Dara
Singh (A1) and Mahendra Hembram (A3) is sustainable and whether prosecution has
proved its case even against the accused who were acquitted by the High Court. Eye
witnesses
10)
According
to the learned senior counsel for the accused, the statements of eye-witnesses
are contradictory to each other on all material points. It is his further claim
that exaggerated and improved version of the incident makes it difficult to
place implicit reliance on the statements of any of those witnesses. On the
other hand, it is the claim of the prosecution that the statements of
eye-witnesses are reliable and acceptable and it was rightly considered by the
trial Court and erroneously rejected except insofar as against Dara Singh (A1)
and Mahendra Hembram (A3) by the High Court.
i) PW2, Basi Tudu,
one of the prime eye-witness, identified in dock the previously known accused
of her village Ojen Hansda. She was not examined by local police, however, examined
by the CID on 04.02.1999 and by the CBI on05.06.1999. In her evidence, she
stated that she is a Christian by faith. Before the court, she deposed that her
house is located near the place of occurrence. She also stated that Graham
Staines along with his two sons came at Manoharpur church after Makar Sankranti
and stayed there in the night. He along with his two sons slept inside the vehicle.
Inside the court, during her deposition, she first wrongly identified accused
Rajat Kumar Das as accused Ojen Hansda.
However, when she had
a better view of the accused in the court, she correctly identified Ojen Hansda
as the person whom she saw among 60 persons holding torch lights and la this
going towards the church. She stated that in the midnight, on hearing barking
of dogs, she woke up from sleep and came out of the house. She found about 60
persons going towards the church where the vehicles of Graham Staineswere
parked. Those persons did not allow her to proceed further. Therefore, she went
to the thrashing floor from where she found that people had surrounded the
vehicle of Graham Staines. Thereafter, she found the vehicle on fire. The
wheels of vehicle in which Graham Staines and his two sons were sleeping,
bursted aloud, and they were burnt to death.
The people who
surrounded the vehicles raised slogans "JaiBajarang Bali" and
"Dara Singh Zindabad". It is clear that she could identify only Ojen
@ Suresh Hansda by face for the first time before the trial Court. No TIP was
held to enable her to identify him. It shows that her identification of Ojen @
Suresh Hansda by face during trial was not corroborated by any previously held
TIP. It is also clear that though she was examined by the State Police/CID, she
never disclosed the name of Ojen @ Suresh Hansda. Though she claims to have identified
Ojen @ Suresh Hansda by the light of the lamp(locally called Dibri) which she
had kept in the Verandah, it must be noted that it was midnight during the peak
winter season and there is no explanation for keeping the lamp in the Verandah
during midnight. In her cross-examination, she admitted that she could not
identify any of the persons who had surrounded the vehicle of Graham Staines
and set it ablaze.
ii) The next
eye-witness examined on the side of the prosecution is PW3, Paul Murmu. He
admitted that he was converted to Christianity in the year 1997. He identified accused
Dara Singh in dock. He was examined by the local police on 23.01.1999, by CID
on 10.02.1999 and by the CBI on 20.04.1999. He used to accompany Graham Staines
at different places. He last accompanied Graham Staines on his visit to
Manoharpur on 20.02.1999. He stated that Graham Staines with his two sons was
in a separate vehicle and the witness along with other three persons was in
another vehicle. In the night of 22.01.1999, Graham Staines along with his two sons
slept in his vehicle, which was parked in front of the church.
The witness slept in
a hut, which was raised behind the church. In the midnight, Nimai Hansda
(driver of vehicle) woke him up. He heard the sound of beating of the vehicles parked
in front of the church. He along with Nimai Hansdawent near the chruch and
found 60-70 persons putting straw beneath the vehicle of Graham Staines and
setting it on fire. Three persons broke the glass panes of the vehicle in which
Graham Staines and his two sons were sleeping and gave strokes to them with
sticks. They were focusing the torch into the vehicles. One of them was having
a beard.
The witness pointed
out to the accused Dara Singh (A1) on the dock saying that the bearded man
resembled like him. The witness was unable to identify the other two persons
who were in the dock. However, he also asserted the hearing of slogans saying
"Dara Singh Zindabad" which corroborates his identification.iii) The
next eye-witness examined by the prosecution is PW4,Rolia Soren. It was he who
lodged FIR. He was examined by the local police on 23.01.1999, by the CID on
03.02.1999 and by the CBI on 09.04.1999. He is a resident of Manohapur Village
(the place of occurrence) and Graham Staines was well known to him. He stated
that Graham Staines along with his two sons and other persons visited Manoharpur
on 20.01.1999. In the night of 22.01.1999, Graham Staines and his two sons
slept in the vehicle bearing No. 1208 which was parked in front of the church.
Another vehicle No. 952 was also parked in front of the church.
The house of witness
was situated in the south of church, four houses apart and the vehicles parked
in front of church were visible from the road in front of his house. In the
night of 22.01.1999, his wife woke him up and said that she found large number
of people withal this and torches going towards the church. After walking about
100 ft. towards the vehicles, he found a large number of people delivering la this
blow on the vehicle in which Graham Staines and his two sons were sleeping and
the other vehicle bearing No. 952 was already set on fire. Three-four persons belonging
to the group caught hold of him by collar and restrained him from proceeding
towards the vehicle. The witness could not recognize them as their heads were
covered with caps and faces by mufflers.
The witness went
towards the village and called Christian people. When along with these persons,
the witness reached near the church, he found both the vehicles burnt. Graham
Staines and his two sons were also burnt to death. The next day, at about 9
P.M., the Officer-In-Charge (OIC) Anandpur PS showed his written paper and said
that was the FIR and he had to lend his signature and accordingly, he lend his
signature thereon. The witness had identified his signatures during his
deposition in the court. Though he mentioned large number of miscreants, but they
were not charge sheeted. In the FIR itself it was stated by this witness that
at the time of occurrence miscreants raised slogans saying "Bajrang Bali
Zindabad" and "Dara SinghZindabad".
iv) Singo Marandi
(PW5) was examined as next eye-witness. Though he named accused Ojen Hansda, in
his deposition stated that he belonged to his village and in the dock he could not
identify him with certainty. His statement was not recorded by the local police
but recorded by the CID on03.02.1999 and by the CBI on 07.06.1999. This witness
is a resident of Manoharpur (the place of occurrence). He stated that on
Saraswati Puja day of 1999, after witnessing the Nagin dance along with his
mother, he slept in Verandah of Galu and her mother was sitting by his side.
At about midnight,
his mother woke him up. He saw something was burning near the church and found
a vehicle moving towards the road. Ojenand Chenchu of his village carrying
torch and la this came to them and warned them not to go near the fire as some
people were killing the Christians there. Thereafter, he heard sounds of
blowing of whistles thrice and raising slogans saying "Dara Singh
Zindabad". It is seen from his evidence that at that time he was
prosecuting his studies at Cuttack and his mother was working as a labourer in
Bhadrak. It is also not clear as to what was the need for him to sleep in
Verandah of another person with his mother sitting beside him till midnight
during peak of the winter.
v) The next
eye-witness examined by the prosecution is Nimai Hansda (PW10). He was examined
by the local police on23.01.1999, by the CID on 11.02.1999 and by the CBI
on20.04.1999. He did not identify any of the accused. He was the driver of
Graham Staines. Vehicle No. 1208 was driven by him. He along with Graham
Staines and others came to the place of occurrence on 20.01.1999. Graham
Staines and his two sons used to sleep in the said vehicle. He stated that in the
midnight of 22.01.1999, on hearing bursting sounds, he woke up. He heard the
sound of beating the vehicles parked in front of church in which Graham Staines
and his two sons were sleeping. He ran towards the vehicles and found some people
beating the vehicles with la this.
They first broke the glass
pane of vehicle No. 952. Thereafter, a boy set the vehicle on fire. Before
setting the vehicle on fire, he put bundle of straw at front right wheel of
vehicle. When the witness raised a noise of protest, those people assaulted
him. He went to call the people but nobody came. When he came back to the place
of occurrence, he found both the vehicles on fire. The witnesss tated that
there were about 30-40 people armed with la this and holding torches. They
raised slogan `Jai Bajarang Bali' and `Dara Singh Zindabad. The fire was
extinguished at 3a.m. By that time, both the vehicles were completely burnt. Graham
Staines and his two sons were completely charred and burnt to death. The
witness could not identify any of the miscreants who set the vehicles on fire.
vi) PW11, Bhakta
Marandi was next examined on the side of the prosecution as eye-witness. He
identified accused Dara Singh and Rajat Kumar Das in dock. His statement was neither
recorded by local police nor by the CID but recorded by the CBI on 05.06.1999. He
belongs to Village Manoharpu r(the place of occurrence). His house is situated
two houses apart from the church. He stated that the deceased Graham Staines
was known to him. He last visited Manoharpur on20.01.1999 along with his two
sons and others in two vehicles. Graham Staines and his two sons used to sleep
in the night inside the vehicle parked in front of the church. As usual in the
night of 22.01.1999, Graham Staines and his two sons had slept in a vehicle. In
the midnight, the witness was woken up by his wife on hearing bursting sounds.
He came out of his house and found 4/5 persons standing in front of his house holding
torches and la this. They were threatening that they will kill the persons who
will dare to come in their way. One of them threw a baton like stick at him.
He retreated to his
house and went to the house of another person situated one house apart from the
church. A slim and tall man was holding an axe. They set on fire one of the
vehicles. Some of them brought straw and put the same on the vehicle. They set
fire both the vehicles and both the vehicles were burnt. They raised the slogans
"Jai Bajarang Bali" and "Dara Singh Zindabad". The witness
pointed accused Dara Singh (A1) and accused Rajat Kumar Das in the dock as two
of those persons beating the vehicles and setting fire on the vehicles. The
witness identified accused Dara Singh (A1) as slim and tall fellow holding the
axe and guiding the miscreants.
The witness further
stated that the CBI while interrogating him showed photographs of some persons
and he had identified two of the photographs as that of miscreants. He had
signed on those photographs. About the admissibility of the identification of
the accused persons with the photographs can be considered at a later point of time.
He did not report the incident to the Collector or any other police officer
camping at the site.vii) The next eye-witness examined was Mathai
Marandi(PW15). He identified accused Uma Kant Bhoi (A 13) in the TIP. He also
identified accused Dara Singh (A1), Dipu Das(A2), Ojen @ Suresh Hansda and
Mahadev. Out of these accused, Ojen Hansda was previously known to him, belonging
to the same street of his village. In his evidence, it is stated that he is native
of Manoharpur village and the church (Place of occurrence) is located adjacent
to his house. Deceased Graham Staines was well known to him as he used to visit
his village for the last 15-16 years. He stated that Graham Staines last
visited their village on 20.01.1999.
He along with his two
sons and other persons came there in two vehicles. He further stated that in
the night of 22.01.1999, on hearing bursting sound, his wife woke him up. After
coming out of the house, he found 40-50 persons gathered near the vehicles
parked in front of the church and beating the vehicles by la this. Those
miscreants were holding la this, axe, torches, bows and arrows. He heard cries
raised by the minor sons of Graham Staines. He went near the vehicle, but 3 to
4 persons threatened him with lathis and, therefore, he retreated to his house.
Thereafter, he went to the huts raised behind the church and called the persons
staying there and went to the place of occurrence and found the vehicles set on
fire. The miscreants put the straw inside the vehicle and set it on fire. They
first set the empty vehicle on fire and thereafter the vehicle in which Graham
Staines and his sons were sleeping. 21
Both the vehicles
caught fire and were burnt. The witness identified accused Dara Singh (A1),
Dipu Das (A2), Ojen @Suresh Hansda and Mahadev as the miscreants present at the
scene of occurrence and taking part in the offence. The witness further stated
that Ojen Hansda and Mahendra Hembram belonged to his village. He had
identified accused Uma Kanta Bhoi in the TIP conducted at Anandpur Jail as one of
the persons setting fire on the vehicle. He further stated that after the
vehicles were burnt, the miscreants blew whistle thrice and raised slogan
"Jai Bajarang Bali" and "Dara Singh Zindabad". However, it
is relevant to note that his omission to mention all important aspects in his
evidence including names of the appellants and his previous statements recorded
by three Investigating Officers creates a doubt about his veracity.
viii) Joseph Marandi
(PW23) was examined as another eye-witness to the occurrence. He belonged to
village Manoharpur( Place of occurrence) and his house is located near the
church. He identified accused Renta Hembram, Mahendra Hembram, Dara Singh and
Rajat Kumar Dass @ Dipu. Out of these, two accused - Renta Hembram and Mahendra
Hembram, were previously known to him as they belonged to his village. He was
examined by the local police on 02.02.1999, by the CID on 06.02.1999 and by the
CBI on 03.06.1999. He stated that Graham Staines along with his two sons and
other persons came to Manoharpur on 20.01.1999 on two vehicles. On22.01.1999
deceased Graham Staines and his two sons slept in a vehicle parked in front of
the church and other persons slept in the huts raised behind the church. In the
mid-night, he heard the sound of beating of vehicles and woke up. When he came
out of the house, 3 to 4 persons holding la this and torches restrained and
threatened him to assault if he proceeds further.
Thereafter, he stood
in a lane between his house and the church. He saw that about 20-22 persons had
surrounded the vehicle in which deceased Graham Staines and his two sons were
sleeping. Some people were setting the vehicle on fire by putting straw beneath
it and igniting it by match sticks. After the vehicle caught fire and was
burnt, somebody blew whistle thrice and they shouted slogan "Jai Bajarang
Bali" and "Dara Singh Zindabad". The other vehicle was not
visible to the witness. The witness identified accused Renta Hembram and Mahendra
Hembram of his village who were among the miscreants. The witness also
identified accused Dara Singh (A1) and accused Rajat Kumar Das @ Dipu(A2) as
the miscreants who among others had set fire to the vehicles. The witness
further stated that the CBI officers had shown him 30-40 photographs out of
which he identified the photographs of the accused Renta Hembram, Mahendra Hembram,
Dara Singh (A1) and Rajat Kumar Das @ Dipu (A2).
He is also a witness
to the seizure of some articles seized from the place of occurrence and he has
proved the seizure list. Admittedly, he did not disclose the names of these
persons before either of the aforesaid three I.Os.ix) Raghunath Dohari (PW36),
one of the eye-witnesses, identified accused Dara Singh, Harish Chandra, Mahadev
and Turam Ho. His statement was not recorded by local police and the CID but it
was recorded by the CBI on 04.12.1999. He belongs to village Manoharpur (place
of occurrence). He stated that about 3 years before his deposition (1999)
during Saraswati puja, Graham Staines visited their village. In the night, he
heard the sound of beating. He got up and went to the church, where there was a
gathering of 60-70 persons of the Church and they were beating the vehicles
with sticks. They brought straw and set fire to the vehicles by burning straw.
The witness identified accused Dara Singh(A1), Harish Chandra, Mahadev and
Turam Ho as the miscreants who were in the gatherings and set fire to the vehicles.
It is relevant to
point out that apart from the police party, the Collector and other Police
Officers though were camping at the place of occurrence, the fact remains that
this witness did not report the incident either to the concerned Investigating
Officer or to the Collector for about four months. However, the fact remains
that he identified some of the appellants before the trial Court for the first
time. As stated earlier, the legality or otherwise of dock identification, for
the first time, would be dealt with in the later part of the judgment. x) Another
eye-witness PW39, Soleman Marandi identified accused Dara Singh, Rajat Kumar
Dass, Surtha Naik, Harish Chandra, Ojen Hansda and Kartik Lohar. Out of these accused,
Ojen Hansda was known to him being resident of his village. His statement was
not recorded by the local police but recorded by the CID on 03.02.1999 and by
the CBI on30.05.1999. He is a resident of village Manoharpur (place of occurrence).
He stated that Graham Staines visited Manhorpur last time about 3 years back
i.e. in the year 1999after Makar Sankranti.
He came there with
his two sons and other persons in two vehicles. In the third night of his stay,
healong with his two sons slept in the vehicle during night. The vehicles were
parked in front of the church. In the midnight, the witness heard the sound of
beating of vehicles. He came out of the house and went near the church. He
found that about 30-40 persons had surrounded the vehicles and some of them
were beating the vehicles in which Graham Staines along with his two sons was
sleeping. He heard the cries of two sons of Graham Staines coming from the
vehicle. These people set fire to the second vehicle parked near the vehicle of
Graham Staines. When the vehicle caught fire, the vehicle moved towards the
road. Three of those miscreants put a log of wood preventing the vehicle moving
further. The witness identified accused Dara Singh as (A1), Rajat Kumar Das,
Suratha Naik, Harish Mahanta, Ojen Hansda and Kartik Lohar amongst the accused
persons in the dock as the miscreants who had set fire to the vehicles. Accused
Ojen Hansda belonged to his village.
The witness further
stated that CBI showed him number of photographs among which he identified photographs
of 5 persons who had taken part in the occurrence. He identified Dara Singh
(A1) without any difficulty and it is also corroborated by the slogan he heard which
miscreants raised in the name of Dara Singh. xi) The last eye-witness examined
on the side of the prosecution is PW43, Lablal Tudu. He identified accused Dara
Singh, Turam Ho, Daya Patra and Rajat Kumar Das. His statement was not recorded
by local police and by the CID but recorded by the CBI on 03.06.1999. He is
also a resident of Manoharpur village and his house is located near the
Church(the place of occurrence). He stated that Graham Staines visited their
village about three years before his deposition in the Court (January, 1999).
He came there on Wednesday and stayed till Friday. On Friday night, Graham
Staines and his two sons slept in a vehicle parked in front of the church.
In the midnight, his
mother (PW2) heard the beating sounds of vehicle and woke him up. He found
50-60 persons beating the vehicle by lathis in which Graham Staines and his two
sons had slept. Three-four of them put the straw beneath the empty vehicle and
lit the straw by matchsticks. After setting the empty vehicle ablaze, those
persons put straw beneath the vehicle of Graham Staines and his two sons and
ignited the same. Those two vehicles caught fire and began to burn. The witness
identified four persons, namely, Dara Singh (A1),Turam Ho (A12), Daya Patra
(A14) and Rajat Das (A2) as the persons beating the vehicle and setting on
fire. The fact remains that admittedly he did not report the incident to his mother
about what he had seen during the occurrence. He also admitted that there was a
police camp from the next day of the incident. However, he did not make any
statement to the State Police and only for the first time his statement was recorded
by the CBI i.e., five months after the occurrence.
11)
It
is relevant to note that the incident took place in the midnight of
22.01.1999/23.01.1999. Prior to that, number of investigating officers had
visited the village of occurrence. Statements of most of the witnesses were
recorded by PW 55,an officer of the CBI. In the statements recorded by various IOs,
particularly, the local police and State CID these eyewitnesses except few
claim to have identified any of the miscreants involved in the incident. As
rightly observed by the High Court, for a long number of days, many of these
eye-witnesses never came forward before the IOs and the police personnel
visiting the village from time to time claiming that they had seen the
occurrence.
In these
circumstances, no importance need to be attached on the testimony of these eye-witnesses
about their identification of the appellants other than Dara Singh (A1) and
Mahendra Hembram (A3) before the trial Court for the first time without
corroboration by previous TIP held by the Magistrate in accordance with the
procedure established. It is well settled principle that in the absence of any
independent corroboration like TIP held by judicial Magistrate, the evidence of
eye-witnesses as to the identification of the appellants/accused for the first
time before the trial Court generally cannot be accepted. As explained in Manu
Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1 case, that if the case is
supported by other materials, identification of the accused in the dock for the
first time would be permissible subject to confirmation by other corroborative
evidence, which are lacking in the case on hand except for A1 and A3.
12)
In
the same manner, showing photographs of the miscreants and identification for
the first time in the trial Court without being corroborated by TIP held before
a Magistrate or without any other material may not be helpful to the
prosecution case. To put it clear, the evidence of witness given in the court
as to the identification may be accepted only if he identified the same persons
in a previously held TIP in jail. It is true that absence of TIP may not be
fatal to the prosecution. In the case on hand, (A1) and (A3) were identified and
also corroborated by the evidence of slogans given in his name and each one of
the witnesses asserted the said aspect ins of ar as they are concerned. We have
also adverted to the fact that none of these witnesses named the offenders in
their statements except few recorded by IOs in the course of investigation.
Though an explanation was offered that out of fear they did not name the offenders,
the fact remains, on the next day of the incident, Executive Magistrate and top
level police officers were camping the village for quite some time. Inasmuch as
evidence of the identification of the accused during trial for the first time
is inherently weak in character, as a safe rule of prudence, generally it is
desirable to look for corroboration of the sworn testimony of witnesses in
court as to the identity of the accused who are strangers to them, in the form
of earlier TIP. Though some of them were identified by the photographs except (A1)
and (A3), no other corroborative material was shown by the prosecution.
13)
Now
let us discuss the evidentiary value of photo identification and identifying
the accused in the dock for the first time. Learned Addl. Solicitor General, in
support of the prosecution case about the photo identification parade and dock
identification, heavily relied on the decision of this Court in Manu Sharma
(supra). It was argued in that case that PW2 Shyan Munshi had left for Kolkata
and thereafter, photo identification was got done when SI Sharad Kumar, PW
78went to Kolkata to get the identification done by picking up from the
photographs wherein he identified the accused Manu Sharma though he refused to
sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise
him. In any case, the factum of photo identification by PW 2 as witnessed by
the officer concerned is a relevant and an admissible piece of evidence. In
para 254, this Court held: "Even a TIP before a Magistrate is otherwise
hit by Section of the Code. Therefore to say that a photo identification is hit
by Section 162 is wrong. It is not a substantive piece of evidence. It is only
by virtue of Section 9 of the Evidence Act that the same i.e. the act of
identification becomes admissible in court. The logic behind TIP, which will
include photo identification lies in the fact that it is only an aid to investigation,
where an accused is not known to the witnesses, the IO conducts a TIP to ensure
that he has got the right person as an accused.
The practice is not
borne out of procedure, but out of prudence. At best it can be brought under
Section 8 of the Evidence Act, as evidence of conduct of a witness in photo
identifying the accused in the presence of an IO or the Magistrate, during the
course of an investigation."It was further held: It is trite to say that
the substantive evidence is the evidence of identification in court. Apart from
the clear provisions of Section 9 of the Evidence Act, the position in law is
well settled by a catena of decisions of this Court. The facts, which establish
the identity of the accused persons, are relevant under Section 9 of the
Evidence Act. As a general rule, the substantive evidence of a witness is the
statement made in court. The evidence of mere identification of the accused
person at the trial for the first time is from its very nature inherently of a
weak character. The purpose of a prior test identification, therefore, is to
test and strengthen the trustworthiness of that evidence. It is, accordingly, considered
a safe rule of prudence to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of the accused who are
strangers to them, in the form of earlier identification proceedings.
This rule of prudence,
however, is subject to exceptions, when, for 32 example, the court is impressed
by a particular witness on whose testimony it can safely rely, without such or
other corroboration. The identification parades belong to the stage of
investigation, and there is no provision in the Code which obliges the
investigating agency to hold or confers a right upon the accused to claim a
test identification parade. They do not constitute substantive evidence and
these parades are essentially governed by Section 162 of the Code. Failure to hold
a test identification parade would not make inadmissible the evidence of
identification in court. The weight to be attached to such identification
should be a matter for the courts of fact. In appropriate cases it may accept
the evidence of identification even without insisting on corroboration. It was
further held that "the photo identification and TIP are only aides in the
investigation and do not form substantive evidence. The substantive evidence is
the evidence in the court on oath".
14)
In
Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau,
AIR 1999 SC 2562, the following conclusion is relevant: "12. In the
present case prosecution does not say that they would rest with the
identification made by Mr. Mkhatshwa when the photograph was shown to him.
Prosecution has to examine him as a witness in the court and he has to identify
the accused in the court. Then alone it would become substantive evidence. But
that does not mean that at this stage the court is disabled from considering
the prospect of such a witness correctly identifying the appellant during trial.
In so considering the court can take into account the fact that during
investigation the photograph of the appellant was shown to the witness and he
identified that person as the one whom he saw at the relevant time"
15)
In
Jana Yadav vs. State of Bihar, (2002) 7 SCC 295,para 38, the following
conclusion is relevant: "Failure to hold test identification parade does not
make the evidence of identification in court inadmissible, rather the same is
very much admissible in law, but ordinarily identification of an accused by a
witness for the first time in court should not form the basis of conviction,
the same being from its very nature inherently of a weak character unless it is
corroborated by his previous identification in the test identification parade
or any other evidence. The previous identification in the test identification
parade is a check valve to the evidence of identification in court of an
accused by a witness and the same is a rule of prudence and not law. It is
clear that identification of accused persons by witness in dock for the first
time though permissible but cannot be given credence without further corroborative
evidence. Though some of the witnesses identified some of the accused in the dock
as mentioned above without corroborative evidence the dock identification alone
cannot be treated as substantial evidence, though it is permissible.
16)
Mr.
Tulsi, learned senior counsel for the accused heavily commented on the statements
of eye-witnesses which, according to him, are contradictory to each other on
material points. He highlighted that exaggerated and improved version of the
incident makes it difficult to place implicit reliance on the statements of any
of these witnesses. He cited various instances in support of his claim. a) As
regards the number of persons who have allegedly attacked the vehicles, it was
pointed out that PW 23 – Joseph Marandi (brother of PW 15)/Christian/15 years
at the time of incident) has stated that 20-22 persons surrounded the vehicle.
On the other hand, PW 39 - Soleman Marandi and PW 10 - Nimai Hansda deposed that
30/40 persons surrounded the vehicle. PW 15 - Mathai Marandi found40/50 persons
were beating with la this. PW 43 - Lablal Tudu (son of PW 2) deposed that 50/60
persons were beating the vehicle whereas PW 2 - Basi Tudu found 60 persons
going towards the church. PW 3, Paul Murmu found 60/70 persons putting straw
beneath the vehicle and setting fire. PW 36 -Raghunath Dohal mentioned that about
60-70 people gathered in front of the church. b) As regards straw being kept on
the roof of the vehicle to prevent cold, PWs 3, 10, 11, 15, 36, 39, 43, 45 and
52mentioned different versions.
c) With regard to
whether there was a light or not which is vital for identification of
miscreants prior to vehicle caught fire, PW 2 has stated that Moon had already
set and he identified Chenchu and A 7 in the light of lamp (dibri) put in the verandah.
On the other hand, PW 5, who was 11 years old at the time of evidence has
mentioned that it was dark night. PW11 has stated that he had not seen any lamp
burning in the verandah of neighbours but saw some miscreants due to illumination
of fire. PW 43 has stated that there is no electricity supply in the village
and stated that they do not keep light in verandah while sleeping inside the
house during night. d) About chilly wintry night, PW3 has stated it was chilly night
with dew dropping whereas PW15 has stated that he cannot say whether there was
fog at the night of occurrence and PW 36 has stated it was wintry night and
PW52 has stated fog occurs during the month of December and January and he
could not say if there was any fog at the night of occurrence.
e) With regard to
clothes worn by attackers, PW36 has stated that A1 was wearing a Punjabi Kurta,
A3 and A12 were wearing a banian. PW19 has stated that he saw 9 persons out of
which 8 were wearing trousers and shirts and one person who was addressed as
Dara was wearing a lungi and Punjabi Kurta. PW39 has stated that during winter
season people usually come with their body covered. PW52 has stated that usually
people wear winter clothing during December and January.
f) With regard to the
aspect whether the accused persons had covered their faces, PW 4 who is the
informant has stated that the faces of the accused were covered. On the other hand,
PWs 11, 15 and 36 have asserted that none covered their faces.
g) As regard to who
lit the fire, PW3 has stated that a short person lit fire. PW10 has mentioned
that he did not see anyone whereas PW11 has stated that number of people set fire.
PW32 has mentioned that there was no gathering near the vehicles when they
caught fire. PW 36 has stated not seen any villager in between the house of the
PW4 and the Church and PW39 has stated he had not seen any female near the place
of occurrence.
h) As regard to
whether Nagin dance was over or not, PW 32had deposed that when the vehicle
caught fire, Nagin dance was being performed whereas PW 39 has deposed that
dance continued throughout the night .
i) Whether Nagin
dance was visible from the place of occurrence, PW 3 has stated that it was not
visible due to darkness. PW 4 has stated the distance between Nagin dance and
Church is 200 ft. PW 5 has stated that Church was not visible from the place of
Nagin dance and the distance was 200ft. PW 6 has mentioned that Church was
visible from the place of Nagin dance and distance was 200 ft and finally PW32
has stated the church was visible from the place of Nagin dance.
j) With regard to
distance between place of occurrence and Nagin dance, PW 15 has mentioned the
distance is 200 ft. PW32 has stated that vehicles were visible from the place
of Nagindance, PW 36 has stated Nagin dance staged 10-12 houses apart from
Church at front side whereas PW 39 has stated Nagin dance staged 4 houses apart
from Chruch and PW 43has stated that it was staged 5 houses apart from church
and he admitted that he was not sure of the distance between church and the
place of Nagin dance. k) With regard to their arrival at the place of
occurrence, PW11 has stated that PWs 4, 15 and 23 came to the place of occurrence
an hour after the miscreants left the place whereas they deposed that they were
present there from the beginning.PW 10 has stated that he woke up on hearing
bursting and beating sound. PW 15 has deposed that he went to the huts behind
the church and called PWs 10, 3 and others. PW 3 has stated that he was woken
up by PW 10.
17)
By
pointing out these contradictions, Mr. Tulsi submitted that the presence of
these witnesses becomes doubtful. However, if we see these witnesses through
microscope, it is true that the above mentioned contradictions would be visible
and clear but by and large they explained the prosecution case though they
could not identify all the accused persons with clarity except Dara Singh (A1)
and Mahendra Hembram (A3).By virtue of these minor contradictions, their
testimony cannot be rejected in to. But, by and large, there are minor contradictions
in their statements as demonstrated by Mr. Tulsi. In the face of the
above-mentioned difference in the evidence of prosecution witnesses with regard
to light, clothing, number of accused persons, fog, faces covered or not, it is
not acceptable in to except certain events and incidents which are reliable and
admissible in evidence.CONFESSIONS:
18)
It
was submitted that confessions of various accused persons, namely, A9, A 11 and
A 12 under Section 164 Cr.P.C. cannot be considered to be voluntary on account
of the fact that all the co-accused persons were produced before the Magistrate
from police custody and were remanded back to police custody. It was further
highlighted that accused No. 14was produced from police custody for recording
his confession while A 13 made his statement when he was on bail and in no case
the Magistrate ensured the accused persons that if they decline they would not
be sent to police custody. It was further highlighted that illiterate accused
persons cannot be expected to have knowledge of finest nuances of procedure. It
was pointed that besides all confessions being exculpatory and made after
conspiracy ceases to be operative are inadmissible. Finally, it was stated that
Section 164 Cr.P.C. requires faithful compliance and failure impairs their
evidentiary value.
19)
Section
164 Cr.P.C. speaks about recording of confessions and statements. It reads
thus: " Recording of confessions and statements.
(1) Any Metropolitan
Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in
the case, record any confession or statement made to him in the course of an
investigation under this Chapter or under any other law for the time being in
force, or at any, time afterwards before the commencement of the inquiry or
trial: Provided that any confession or statement made under this sub-section
may also be recorded by audio-video electronic means in the presence of the
advocate of the person accused of an offence: Provided that no confession shall
be recorded by a police officer on whom any power of a Magistrate has been conferred
under any law for the time being in force.
(2) The Magistrate
shall, before recording any such confession, explain to the person making it
that he is not bound to make a confession and that, if he does so, it may be
used as evidence against him; and the Magistrate shall not record any such
confession unless, upon questioning the person making it, he has reason to
believe that it is bear, made voluntarily. (3) If at any time before the confession
is recorded, the person appearing before the Magistrate states that he is not willing
to make the confession, the Magistrate shall not authorize the detention of
such person in police custody. (4) Any such confession shall be recorded in the
manner provided in section 281 for recording the examination of an 41 accused
person and shall be signed by the person making the confession; and the
Magistrate shall make a memorandum at the foot of such record to the following effect.
"I have explained to (name) that he is not bound to make a confession and
that, if he does so, any confession he may make may be used as evidence against
him and I believe that this confession was voluntarily made.
It was taken in my
presence and hearing, and was read over to the person making it and admitted by
him to be correct, and it contains a full and true account of the statement
made by him. (Signed) A.B. Magistrate (5) Any statement (other than a
confession) made under sub-section (1) shall be recorded in such manner hereinafter
provided for the recording of evidence as is, in the opinion of the Magistrate,
best fitted to the circumstances of the case; and the Magistrate shall have
power to administer oath to the person whose statement is so recorded. (6) The
Magistrate recording a confession or statement under this section shall forward
it to the Magistrate by whom the case is to be inquired into or tried. "
20)
While
elaborating non-compliance of mandates of Section164 Cr.P.C., Mr. Tulsi,
learned senior counsel appearing for the accused cited various instances.(a) Accused
No. 9, Rabi Soren, was arrested by the investigating agency and remanded to
police custody for 7days i.e. from 20.05.1999. It is their claim that
on18.05.1999, Accused No.9 made a statement under Section164 Cr.P.C. and
thereafter remanded back to police custody. It was also pointed out that in his
statement under Section313 Cr.P.C. the accused person stated that he was beaten
by the investigating agency.(b) Another instance relates to Mahadev Mahanta, Accused
No. 11 who was arrested on 01.07.1999 by the investigating agency and he was
remanded to police custody. However, on08.07.1999, Accused No. 11 made a
statement under Section164 Cr.P.C. PW 55, I.O. has stated that the statement of
the accused was recorded under Section 164 Cr.P.C. that he was under police
custody and he was remanded back to police custody.
In his statement
under Section 313 Cr.P.C. he also stated that he was beaten by the
investigating agency.(c) In the case of Turam Ho Accused No. 12, he was
arrested on 13.05.1999 by the Investigating Agency and from19.05.1999 to
23.05.1999 the accused person was in custody of the investigating agency. While
so, on 21.05.1999, the accused No. 12 made a statement under Section 164
Cr.P.Cand thereafter remanded back to police custody. It waspointed out that he
also stated in his statement under Section313 Cr.P.C. that he was beaten by the
investigating agency. (d) The next instance relates to Umakanta Bhoi, Accused
No.13 who refused to make a statement under Section 164 Cr. P. C prayed by I.O.
to be put for 16.03.1999 for recording statement. It was directed to jail
authority to keep the accused under calm and cool atmosphere. A 13 was produced
from Judicial Custody for recording statement under Section164 Cr.P.C. and he
refused to make a statement. However, on31.08.1999, he made a confessional
statement.(e) In the case of Dayanidhi Patra, Accused No. 14, on21.09.1999, he
was arrested by the Investigating Agency. On24.09.1999, Learned ASJ granted
police remand for 7 days i.e.on 01.10.1999 and that on that day A 14 made a
statement under Section 164 Cr.P.C. It was pointed out that in his statement
under Section 313 Cr.P.C. the accused person stated that he was beaten by the
investigating agency.
21)
Before
analyzing the confessional statements of various accused persons and its
applicability and the procedure followed by the Magistrate in recording the
statement, let us consider various decisions touching these aspects.
22)
In
Bhagwan Singh and Ors. vs. State of M.P. (2003) 3SCC 21, while considering
these issues, it was held: "27......The first precaution that a Judicial
Magistrate is required to take is to prevent forcible extraction of confession by
the prosecuting agency (see State of U.P. v. Singhara Singh, AIR 1964 SC 358).
It was also held by this Court in the case of Shivappa v. State of Karnataka,
(1995) 2 SCC 76 that the provisions of Section 164 CrPC must be complied with
not only in form, but in essence. Before proceeding to record the confessional
statement, a searching enquiry must be made from the accused as to the custody
from which he was produced and the treatment he had been receiving in such
custody in order to ensure that there is no scope for doubt of any sort of
extraneous influence proceeding from a source interested in the prosecution.
It has also been held
that the Magistrate in particular should ask the accused as to why he wants to
make a statement which surely shall go against his interest in the trial. He
should be granted sufficient time for reflection. He should also be assured of
protection from any sort of apprehended torture or pressure from the police in
case he declines to make a confessional statement. Unfortunately, in this case,
the evidence of the Judicial Magistrate (PW 1) does not show that any such
precaution was taken before recording the judicial confession. 29. The
confession is also not recorded in questions-and- answers form which is the
manner indicated in the criminal court rules. 30. It has been held that there was
custody of the accused Pooran Singh with the police immediately preceding the making
of the confession and it is sufficient to stamp the confession as involuntary
and hence unreliable.
A judicial confession
not given voluntarily is unreliable, more so when such a confession is
retracted. It is not safe to rely on such judicial confession or even treat it
as a corroborative piece of evidence in the case. When a judicial confession is
found to be not voluntary and more so when it is retracted, in the absence of
other reliable evidence, the conviction cannot be based on such retracted
judicial confession. (See Shankaria v. State of Rajasthan, (1978) 3 SCC 435
(para 23)" 45
23)
In
Shivappa vs. State of Karnataka (1995) 2 SCC 76,while reiterating the same principle
it was held:- "6. From the plain language of Section 164 CrPC and the rules
and guidelines framed by the High Court regarding the recording of confessional
statements of an accused under Section 164 CrPC, it is manifest that the said
provisions emphasise an inquiry by the Magistrate to ascertain the voluntary
nature of the confession. This inquiry appears to be the most significant and
an important part of the duty of the Magistrate recording the confessional
statement of an accused under Section 164 CrPC. The failure of the Magistrate
to put such questions from which he could ascertain the voluntary nature of the
confession detracts so materially from the evidentiary value of the confession
of an accused that it would not be safe to act upon the same.
Full and adequate
compliance not merely in form but in essence with the provisions of Section 164
CrPC and the rules framed by the High Court is imperative and its non- compliance
goes to the root of the Magistrate's jurisdiction to record the confession and
renders the confession unworthy of credence. Before proceeding to record the
confessional statement, a searching enquiry must be made from the accused as to
the custody from which he was produced and the treatment he had been receiving
in such custody in order to ensure that there is no scope for doubt of any sort
of extraneous influence proceeding from a source interested in the prosecution
still lurking in the mind of an accused. In case the Magistrate discovers on
such enquiry that there is ground for such supposition he should give the
accused sufficient time for reflection before he is asked to make his statement
and should assure himself that during the time of reflection, he is completely
out of police influence. An accused should particularly be asked the reason why
he wants to make a statement which would surely go against his self-interest in
course of the trial, even if he contrives subsequently to retract the confession.
Besides administering
the caution, warning specifically provided for in the first part of sub-section
(2) of Section 164 namely, that the accused is not bound to make a statement
and that if he makes one it may be used against him as evidence in relation to
his complicity in the offence at the trial, that is to follow, he should also,
in plain language, be assured of protection from any sort of apprehended
torture or pressure from such extraneous agents as the police or the like in
case he declines to make a statement and be given the assurance 46 that even
if he declined to make the confession, he shall not be remanded to police
custody. 7. The Magistrate who is entrusted with the duty of recording
confession of an accused coming from police custody or jail custody must
appreciate his function in that behalf as one of a judicial officer and he must
apply his judicial mind to ascertain and satisfy his conscience that the statement
the accused makes is not on account of any extraneous influence on him. That
indeed is the essence of a `voluntary' statement within the meaning of the
provisions of Section 164 CrPC and the rules framed by the High Court for the
guidance of the subordinate courts.
Moreover, the Magistrate
must not only be satisfied as to the voluntary character of the statement, he
should also make and leave such material on the record in proof of the
compliance with the imperative requirements of the statutory provisions, as would
satisfy the court that sits in judgment in the case, that the confessional
statement was made by the accused voluntarily and the statutory provisions were
strictly complied with. 8. From a perusal of the evidence of PW 17, Shri
Shitappa, Additional Munsif Magistrate, we find that though he had administered
the caution to the appellant that he was not bound to make a statement and that
if he did make a statement that may be used against him as evidence but PW 17
did not disclose to the appellant that he was a Magistrate and that the
confession was being recorded by him in that capacity nor made any enquiry to
find out whether he had been influenced by anyone to make the confession. PW 17
stated during his deposition in court: "I have not stated to the accused
that I am a Magistrate" and further admitted: "I have not asked the
accused as to whether the police have induced them (Chithavani) to give the
statement.
" The Magistrate,
PW 17 also admitted that "at the time of recording the statement of the
accused no police or police officials were in the open court. I cannot tell as
to whether the police or police officials were present in the vicinity of the court".
From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his
deposition recorded in court it is further revealed that the Magistrate did not
lend any assurance to the appellant that he would not be sent back to the
police custody in case he did not make the confessional statement. Circle
Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office
of the Circle Police Inspector and the police station are situated in the same
premises. No contemporaneous record has been placed on the record to show that
the appellant had actually 47 been kept in the sub-jail, as ordered by the
Magistrate on 21-7-1986 and that he was out of the zone of influence by the
police keeping in view the location of the sub-jail and the police station.
The prosecution did
not lead any evidence to show that any jail authority actually produced the
appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986
nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to
why he wanted to make the confession or as to what had prompted him to make the
confession. It appears to us quite obvious that the Munsif Magistrate, PW 17
did not make any serious attempt to ascertain the voluntary character of the
confessional statement. The failure of the Magistrate to make a real endeavour
to ascertain the voluntary character of the confession, impels us to hold that
the evidence on the record does not establish that the confessional statement
of the appellant recorded under Section 164 CrPC was voluntary. The cryptic
manner of holding the enquiry to ascertain the voluntary nature of the
confession has left much to be desired and has detracted materially from the
evidentiary value of the confessional statement. It would, thus, neither be
prudent nor safe to act upon the confessional statement of the
appellant....."
24)
In
Dagdu and Others vs. State of Maharashtra, (1977)3 SCC 68, the following
paragraph is relevant:- "51. Learned Counsel appearing for the State is
right that the failure to comply with Section 164(3) of the Criminal Procedure
Code, or with the High Court Circulars will not render the confessions
inadmissible in evidence. Relevancy and admissibility of evidence have to be
determined in accordance with the provisions of the Evidence Act. Section 29 of
that Act lays down that if a confession is otherwise relevant it does not
become irrelevant merely because, inter alia, the accused was not warned that
he was not bound to make it and the evidence of it might be given against him.
If, therefore, a confession does not violate any one of the conditions
operative under Sections 24 to 28 of the Evidence Act, it will be admissible in
evidence. But as in respect of any other admissible evidence, oral or
documentary, so in the case of confessional statements which are otherwise admissible,
the Court has still to consider whether they can be accepted as true. If the
facts and circumstances surrounding the making of a confession appear to cast a
doubt on the veracity or voluntariness of the confession, the 48 Court may
refuse to act upon the confession even if it is admissible in evidence. That
shows how important it is for the Magistrate who records the confession to
satisfy himself by appropriate questioning of the confessing accused, that the
confession is true and voluntary. A strict and faithful compliance with Section
164 of the Code and with the instructions issued by the High Court affords in a
large measure the guarantee that the confession is voluntary. The failure to
observe the safeguards prescribed therein are in practice calculated to impair
the evidentiary value of the confessional statements."
25)
Davendra
Prasad Tiwari vs. State of U.P. (1978) 4 SCC474, the following conclusion
arrived at by this Court is relevant:- "13..... It is also true that
before a confessional statement made under Section 164 of the Code of Criminal
Procedure can be acted upon, it must be shown to be voluntary and free from
police influence and that the confessional statement made by the appellant in
the instant case cannot be taken into account, as it suffers from serious
infirmities in that (1) there is no contemporaneous record to show that the
appellant was actually kept in jail as ordered on September 6, 1974 by Shri
R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who recorded
the so called confessional statement of the appellant did not question him as
to why he was making the confession and (3) there is also nothing in the
statement of the said Magistrate to show that he told the appellant that he
would not be remanded to the police lock-up even if he did not confess his
guilt. It cannot also be gainsaid that the circumstantial evidence relied upon by
the prosecution must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused."
26)
In
Kalawati & Ors. vs. State of Himachal Pradesh,1953 SCR 546 at 631, this
Court held: "...In dealing with a criminal case where the prosecution relies
upon the confession of one accused person against another accused person, the
proper approach to adopt is to 49 consider the other evidence against such an
accused person, and if the said evidence appears to be satisfactory and the court
is inclined to hold that the said evidence may sustain the charge framed
against the said accused person, the court turns to the confession with a view
to assure itself that the conclusion which it is inclined to draw from the
other evidence is right."
27)
In
State the. Superintendent of Police, CBI/SIT vs.Nalini and Others (1999) 5 SCC
253 at 307, the following paragraphs are relevant which read as under:- "96.
What is the evidentiary value of a confession made by one accused as against
another accused apart from Section 30 of the Evidence Act? While considering
that aspect we have to bear in mind that any confession, when it is sought to
be used against another, has certain inherent weaknesses. First is, it is the
statement of a person who claims himself to be an offender, which means, it is
the version of an accomplice. Second is, the truth of it cannot be tested by
cross-examination. Third is, it is not an item of evidence given on oath.
Fourth is, the confession was made in the absence of the co-accused against
whom it is sought to be used. 97. It is well-nigh settled, due to the aforesaid
weaknesses, that confession of a co-accused is a weak type of evidence.
A confession can be
used as a relevant evidence against its maker because Section 21 of the
Evidence Act permits it under certain conditions. But there is no provision
which enables a confession to be used as a relevant evidence against another
person. It is only Section 30 of the Evidence Act which at least permits the
court to consider such a confession as against another person under the
conditions prescribed therein. If Section 30 was absent in the Evidence Act no
confession could ever have been used for any purpose as against another
co-accused until it is sanctioned by another statute. So, if Section 30 of the
Evidence Act is also to be excluded by virtue of the non obstante clause contained
in Section 15(1) of TADA, under what provision can a confession of one accused
be used against another co- accused at all? It must be remembered that Section
15(1) of TADA does not say that a confession can be used against a co-accused.
It only says that a confession would be admissible in a trial of not only the
maker thereof but a co- accused, abettor or conspirator tried in the same case.
50 98. Sir John Beaumont speaking for five Law Lords of the Privy Council in
Bhuboni Sahu v. R., AIR 1949 PC 257 had made the following observations:
"Section 30
seems to be based on the view that an admission by an accused person of his own
guilt affords some sort of sanction in support of the truth of his confession
against others as well as himself. But a confession of a co-accused is obviously
evidence of a very weak type. It does not indeed come within the definition of
`evidence' contained in Section 3, Evidence Act. It is not required to be given
on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.
It is a much weaker type of evidence than the evidence of an approver which is
not subject to any of those infirmities. Section 30, however, provides that the
court may take the confession into consideration and thereby, no doubt, makes
it 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." 99. The
above observations had since been treated as the approved and established
position regarding confession vis- `-vis another co-accused.
Vivian Bose, J., speaking
for a three-Judge Bench in Kashmira Singh v. State of M.P., AIR 1952 SC 159 had
reiterated the same principle after quoting the aforesaid observations. A
Constitution Bench of this Court has followed it in Haricharan Kurmi v. State
of Bihar, AIR 1964 SC 1184."
28)
In
State of Maharashtra vs. Damu (2000) 6 SCC 269,the same principles had been
reiterated which read as under:- "19. We have considered the above reasons
and the arguments addressed for and against them. We have realised that those
reasons are ex facie fragile. Even otherwise, a Magistrate who proposed to
record the confession has to ensure that the confession is free from police
interference. Even if he was produced from police custody, the Magistrate was
not to record the confession until the lapse of such time, as he thinks
necessary to extricate his mind completely from fear of the police to have the
confession in his own way by telling the Magistrate the true facts. 25. We may
make it clear that in Kashmira Singh this Court has rendered the ratio that
confession cannot be made the foundation of conviction in the context of
considering the utility of that confession as against a co-accused in view of 51
Section 30 of the Evidence Act. Hence the observations in that decision cannot
be misapplied to cases in which confession is considered as against its maker.
The legal position concerning confession vis-`-vis the confessor himself has
been well-nigh settled by this Court in Sarwan Singh Rattan Singh v. State of
Punjab as under: "In law it is always open to the court to convict an
accused on his confession itself though he has retracted it at a later stage. Nevertheless
usually courts require some corroboration to the confessional statement before
convicting an accused person on such a statement. What amount of corroboration
would be necessary in such a case would always be a question of fact to be
determined in the light of the circumstances of each case." This has been
followed by this Court in Kehar Singh v. State (Delhi Admn.)"
29)
The
following principles emerge with regard to Section164 Cr.P.C.:-(i) The
provisions of Section 164 Cr.P.C. must be complied with not only in form, but
in essence.(ii) Before proceeding to record the confessional statement, a searching
enquiry must be made from the accused as to the custody from which he was
produced and the treatment he had been receiving in such custody in order to
ensure that there is no scope for doubt of any sort of extraneous influence proceeding
from a source interested in the prosecution.(iii) A Magistrate should ask the
accused as to why he wants to make a statement which surely shall go against
his interest in the trial.
(iv) The maker should
be granted sufficient time for reflection.(v) He should be assured of
protection from any sort of apprehended torture or pressure from the police in
case he declines to make a confessional statement.(vi) A judicial confession
not given voluntarily is unreliable, more so, when such a confession is
retracted, the conviction cannot be based on such retracted judicial
confession.(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the
Magistrate's jurisdiction to record the confession and renders the confession
unworthy of credence.(viii) During the time of reflection, the accused should
be completely out of police influence. The judicial officer, who is entrusted
with the duty of recording confession, must apply his judicial mind to
ascertain and satisfy his conscience that the statement of the accused is not
on account of any extraneous influence on him.(ix) At the time of recording the
statement of the accused, no police or police official shall be present in the
open court.(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the
Court requires some corroboration from the confessional statement before
convicting the accused person on such a statement. Judicial Magistrates (PWs-29
& 34)
30)
Ashok
Kumar Agrawal, PW29 and Tojaka Bharti, PW34,Judicial Magistrates recorded the
confessional statements of some of the accused. Judicial Magistrate, PW29
recorded the confessional statement of Rabi Soren and Turam Ho andPW34,
Judicial Magistrate recorded the confessional statement of Mahadev Mahanta, Uma
Kant Bhoi and Dayanidhi Patra. It is the claim of Mr. K.T.S. Tulsi, learned
senior counsel for the accused, that the evidence of PW29 and PW34, Judicial Magistrates
shows that they were blissfully unaware of the stringent responsibility cast on
them by Section 164 Cr.P.C. According to him, their evidence create an
impression that they were not aware of the difference between the police custody
and judicial custody nor do they seem to understand the significance of Section
164 Cr.P.C. He pointed out that why the first four pages in case of each of the
accused persons is not signed by the accused is not explained.
They neither asked
any searching questions regarding the nature of custody either from the accused
persons or from police nor did they scrutinize the records to ascertain the
same from remand orders. He also pointed out that none of the accused who have
confessed had been given the assurance that if they refuse to make any
confession, they would not be remanded to police custody. This assurance is
required for an accused to make an informed decision being fully aware of the consequences
of refusing.
31)
It
is seen from the evidence of PW29, who recorded the confession of Rabi So ren,
that at the relevant time the accused was in the custody of CBI and from that
custody he was produced before the Addl. Chief Judicial Magistrate on18.05.1999.
Though PW29 had asked the accused many things about the voluntariness, the High
Court, on analysis of his entire evidence, came to a conclusion that only a
routine statutory certificate as required under Section 164 Cr.P.C. was given
by him. The High Court also pointed out that he did not caution that if the
accused Rabi Soren refused to make any confession, he would not be remanded to
C.B.I. or Police custody. He was not informed that if he confessed, such confession
may be used in evidence against him and on that basis there was possibility of
his being sentenced to death or life imprisonment. It was also pointed out that
his body was not checked to find out as to whether he was subjected to torture
when he was in police custody. It was also pointed out by the High Court that
five hours' time was given for reflection during which period he was in the
custody of his Bench Clerk in his Chamber. PW29, after recording confessional
statement of Rabi Soren on 18.05.1999, again remanded him to the custody of police,
i.e. C.B.I. till 20.05.1999.
This is clear from the
evidence of PW55 (I.O.). It is relevant to point out that under sub-section (3)
of Section 164 Cr.P.C. that if any accused refuses to make any confessional
statement, such Magistrate shall not authorize detention of the accused in police
custody. Remanding Rabi Soren to Police custody after his statement was
recorded under Section 164 Cr.P.C. is not justified. As rightly observed by the
High Court, possibility of coercion, threat or inducement to the accused Rabi
Soren to make the confession cannot be ruled out. In the same manner,
confession of another accused Turam Ho was also recorded by the very same
Magistrate. Here again, the High Court pointed out that he was not cautioned
that if he made any confession, same may be used against him in evidence and on
that basis he may be sentenced to death or imprisonment for life. Equally he
was not cautioned by PW29that if he refused to make the confessional statement,
he would not be remanded to police custody. It is further seen that both of
these accused, in their confessional statements, made exculpatory statements.
32)
PW34,
Judicial Magistrate, recorded the confessional statement of accused Mahadev
Mahanta on 08.07.1999immediately after his production before him from the
police custody. PW34 was directed by the Addl. C.J.M. to record the confessional
statement of Mahadev Mahanta. It was noted that he was given only 10 minutes'
time for reflection after his production from police custody. The other accused
who made the confessional statement is Dayanidhi Patra whose statement was
recorded by PW34. The High Court, on corroboration of the confessional
statement, had found that the entire confessional statement is exculpatory and
he also retracted from the confession. It was further found that this confessional
statement was made long after the charge-sheet was filed i.e. on 22.06.1999.
The analysis of evidence of PWs29 & 34 - Judicial Magistrates shows that
many of the confessional statements were recorded immediately after production
of the maker after long CBI custody and in some cases after such statements
were made and recorded by the Judicial Magistrate, the maker was remanded to
police custody. Though the Magistrates have deposed that the procedure provided
under Section 164 Cr.P.C. has been complied with, various warnings/cautions
required to be given to the accused before recording such confession, have not been
fully adhered to by them.
33)
Apart
from the strong observation of the High Court about procedural lapse on the
part of PWs 29 & 34, we also verified their statements and requirements in
terms of Section164 Cr.P.C. In the certificate, there is no specific reference about
the nature of the custody from which these persons were produced nor about the
assurance that they would not be remanded to police custody if they declined. We
have already pointed out that Section 164 Cr.P.C. requires strict and faithful
compliance of sub-sections 2 to 4, the failure to observe safeguards not only
impairs evidentiary value of confession but cast a doubt on nature and
voluntariness of confession on which no reliance can be placed. As rightly observed
by the High Court, no exceptional circumstances could be brought to our notice
by the prosecution in respect of the appellants other than A1 and A3.
34)
It
was next argued that the incident could not have been happened as suggested by
the prosecution. According to the learned senior counsel for the accused the
reason of possibility of the incident which took place in the dead of the night
as a result of the accident from burning of the stove etc. for generating heat
on cold wintry night cannot be ruled out. In support of the above contention,
he pointed out several circumstances which are inconsistent with the fire starting
by arson from outside. On going through the entire materials, we are unable to
accept the said contention. Though we noticed several inconsistencies in the
prosecution evidence and the accused persons were not specifically identified
except A1 andA3, the fact remains that the Van in which Graham Staines and his
two children were sleeping were set on fire and burnt to death due to the cause
of the miscreants. In other words, death of these three persons by setting fire
by the miscreants cannot be ruled out. There is no material to conclude that
the fire emanated from inside of the vehicle and then spread to rest of the
vehicle after the fuel tank caught fire. There is no basis for such conclusion
though the prosecution witnesses could not pin-point and identify the role of
each accused.
35)
Another
question which we have to consider is whether the Police (CBI) had the power
under the Cr.P.C. to take specimen signature and writing of A3 for examination
by the expert. It was pointed out that during investigation, even the Magistrate
cannot direct the accused to give his specimen signature on the asking of the
police and only in the amendment of the Cr.P.C. in 2005, power has been given
to the Magistrate to direct any person including the accused to give his specimen
signature for the purpose of investigation. Hence, it was pointed out that
taking of his signature/writings being per se illegal, the report of the expert
cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor
General heavily relied on a 11-Judge Bench decision of this Court in The State
of Bombay vs. Kathi Kalu Oghadand Ors., (1962) 3 SCR 10 = AIR 1961 SC 1808.
This larger Bench was
constituted in order to re-examine some of the propositions of law laid down by
this Court in the case of M.P.Sharma and Ors. vs. Satish Chandra, District
Magistrate, Delhi and Ors., (1954) SCR 1077. After adverting to various factual
aspects, the larger Bench formulated the following questions for consideration:
"2. ... ... On these facts, the only questions of constitutional importance
that this Bench has to determine are; (1) whether by the production of the
specimen handwritings - Exs. 27, 28, and 29 - the accused could be said to have
been 'a witness against himself' within the meaning of Article 20(3) of the
Constitution; and (2) whether the mere fact that when those specimen
handwritings had been given, the accused person was in police custody could, by
itself, amount to compulsion, apart from any other circumstances which could be
urged as vitiating the consent of the accused in giving those specimen
handwritings. ... ... 4. ... ... The main question which arises for
determination in this appeal is whether a direction given by a Court to an accused
person present in Court to give his specimen writing and signature for the
purpose of comparison under the provisions of section 73 of the Indian Evidence
Act infringes the fundamental right enshrined in Article 20(3) of the Constitution.
The following
conclusion/answers are relevant: 10. ... ... Furnishing evidence" in the
latter sense could not have been within the contemplation of the Constitution- makers
for the simple reason that - though they may have intended to protect an
accused person from the hazards of self-incrimination, in the light of the
English Law on the subject - they could not have intended to put obstacles in the
way of efficient and effective investigation into crime and of bringing
criminals to justice. The taking of impressions or parts of the body of an
accused person very often becomes necessary to help the investigation of a
crime. It is as much necessary to protect an accused person against being compelled
to incriminate himself, as to arm the agents of law and the law courts with
legitimate powers to bring offenders to justice. ... .... 11. ... ... When an
accused person is called upon by the Court or any other authority holding an
investigation to give his finger impression or signature or a specimen of his handwriting,
he is not giving any testimony of the nature of a 'personal testimony'.
The giving of a
'personal testimony' must depend upon his volition. He can make any kind of statement
or may refuse to make any statement. But his finger impressions or his
handwriting, in spite of efforts at concealing the true nature of it by
dissimulation cannot change their intrinsic character. Thus, the giving of
finger impressions or of specimen writing or of signatures by an accused
person, though it may amount to furnishing evidence in the larger sense, is not
included within the expression 'to be a witness'. 12. ... ... A specimen
handwriting or signature or finger impressions by themselves are no testimony
at all, being wholly innocuous because they are unchangeable except in rare
cases where the ridges of the fingers or the style of writing have been
tampered with. They are only materials for comparison in order to lend
assurance to the Court that its inference based on other pieces of evidence is
reliable. They are neither oral nor documentary evidence but belong to the third
category of material evidence which is outside the limit of 'testimony'.
In view of these
considerations, we have come to the following conclusions :- 62 (1) An accused
person cannot be said to have been compelled to be a witness against himself
simply because he made a statement while in police custody, without anything more.
In other words, the mere fact of being in police custody at the time when the
statement in question was made would not, by itself, as a proposition of law,
lend itself to the inference that the accused was compelled to make the statement,
though that fact, in conjunction with other circumstances disclosed in evidence
in a particular case, would be a relevant consideration in an enquiry whether
or not the accused person had been compelled to make the impugned statement.(2)
The mere questioning
of an accused person by a police officer, resulting in a voluntary statement,
which may ultimately turn out to be incriminatory, is not 'compulsion'.(3) 'To
be a witness' is not equivalent to 'furnishing evidence' in its widest
significance; that is to say, as including not merely making of oral or written
statements but also production of documents or giving materials which may be relevant
at a trial to determine the guilt innocence of the accused.(4) Giving thumb
impressions or impressions of foot or palm or fingers or specimen writings or
showing parts of the body by way of identification are not included in the
expression 'to be a witness'.(5) 'To be a witness' means imparting knowledge in
respect of relevant facts by an oral statement or a statement in writing, made
or given in Court or otherwise.(6) 'To be a witness' in its ordinary
grammatical sense means giving oral testimony in Court. Case law has gone
beyond this strict literal interpretation of the expression which may now bear
a wider meaning, namely, bearing testimony in Court or out of Court by a person
accused of an offence, orally or in writing.(7) To bring the statement in
question within the prohibition of Article 20(3), the person accused must have
stood in the character of an accused person at the time he made the statement.
It is not enough that he should become an accused, any time after the statement
has been made."
In view of the above
principles, the procedure adopted by the investigating agency, analyzed and
approved by the trial Court and confirmed by the High Court, cannot be faulted
with. In view of oral report of Rolia Soren, PW 4 which was reduced into
writing, the evidence of PW 23, two letters dated01.02.2002 and 02.02.2002 addressed
by Mahendra Hembram (A3) to the trial Judge facing his guilt coupled with the
other materials, we are unable to accept the argument of Mr. Ratnakar Dash,
learned senior counsel for Mahendra Hembram (A3) and we confirm the conclusion
arrived by the High Court. Additional factors-Mahendra Hembram (A3).
36)
Coming
to the role of Mahendra Hembram A3, the prosecution very much relied on his
letters dated 01.02.2002and 02.02.2002 addressed to the Sessions Judge wherein
he confessed his guilt. Though a serious objection was taken about the
admissibility of these two letters, the contents of these two letters addressed
to the Sessions Judge in the course of trial lend ample corroboration to his
identification before the trial Court by Joseph Marandi, PW 23. Even in his case,
it is true that there was no TIP conducted by Judicial Magistrate. However,
inasmuch as when he was facing trial, he sent the above-mentioned two letters
to the Sessions Judge which lend corroboration to his identification in the
trial court by PW 23 and rightly observed by the High Court, the same can be
safely relied upon.
The evidence reveals
that Rolia Soren (PW 4) accompanied by PW 23 soon after the incident proceeded
to inform the same to the police and finding the police to have already left
for Manoharpur, returned back and finally on the oral report of PW 4, the
Officer In-charge of Anandapur P.S. (PW 52) prepared FIR (Ext. 1/1) and registered
a case under Sections 147, 148, 435, 436 and 302read with 149 IPC against Dara
Singh (A 1) and five others. The prosecution has also relied on a letter (Ext.2
after it was translated to English marked as Ext. 49) said to have been addressed
by Mahendra Hembram (A3) to Kapura Tudu (PW 9)which, according to the
prosecution, contains his admission of involvement in the incident.
37)
An
excerpt from the letter of Mahendra Hembram may be translated into English as
under:- "You may be knowing the Manoharpur incident. No one ever thought
that such a thing will happen in the village. I had not told any of my family
members that such a work will be done. Dara Singh stayed in our house and did
the work. I also did the work as I had quarrel with the `Jisu'. I had not
disclosed the identity of Dara Singh even to my mother. The conspiracy to kill Manoharpur
`Jisu' was hatched at HOROHND for which I took leave during training period and
stayed in our house with Dara Singh for five days and went to the forest
thereafter. The villagers know that I have done this work as I have got cordial
relationship with Dara Singh." This is a confessional statement of accused
Mahendra Hembram (A3) inculpating himself and Dara Singh (A1).
38)
Accused
Mahendra Hembram, in his letter dated10.02.1999 (Ex. 2) addressed to his
sister-in-law, Kapura Tudu (PW9), confessed that he along with Dara Singh burnt
the `Jisu' (Christian Missionary). All the ocular witnesses have testified that
after setting fire to vehicles and burning Graham Staines and his two sons
alive, the miscreants raised slogans" Jai Bajrang Bali" and
"Dara Singh Zindabad".
39)
Joseph
Marandi, PW23 has testified that accused Mahendra Hembram amongst others set
fire to the vehicles. Mahendra Hembram, in his statement recorded under
Section313 Cr.P.C., on 04.02.2002 has stated that he may be the short statured
person. Accused Mahendra Hembram in his letter dated 10.02.1999 (Ex. 2)
addressed to his sister-in-law, Kapura Tudu (PW9) had confessed to have burnt
the Christian missionary along with Dara Singh. In the course of trial, he filed
petitions on 01.02.2002 and 02.02.2002 pleading guilty and confessing to have
set fire to the vehicles. In his statement recorded under Section 313 Cr.P.C.
on 04.02.2002,he has admitted to have set fire to the vehicles and in his statement
recorded under Section 313 Cr.P.C. on 24.03.2003has admitted to have filed
petitions pleading guilty and to have stated in his earlier examination under
Section 313 Cr.P.C. that he had set fire to the vehicles. There is no
impediment in relying on a portion of the statement of the accused and finding
him guilty in consideration of the other evidence against him as laid by the
prosecution.
40)
It
is clear that the letters marked as (Ex. 213) were written by Mahendra Hembram
though denied by him, contents of the said two letters amount to confession, or
in any event admission of important incriminating materials. He had been identified
before the trial Court by Joseph Marandi (PW23) as a participant in the crime. As
rightly observed by the High Court, contents of these two letters lend support
to the evidence in identification before the trial Court for the first time as
narrated by PW23. In this way, his identification for the first time in the
trial Court is an exceptional case and even in the absence of further
corroboration by way of previously held TIP, his involvement in the crime is
amply corroborated by the above said letters written by him.
41)
Learned
Addl. Solicitor General has pointed out that insofar as Mahendra Hembram is
concerned, three types of evidence are available against him: a) Confession; b)
testimony of eye-witnesses/identification in court/PW 23 Joseph Marandi; and c)
absconding of the accused. Learned Addl.Solicitor General while advancing his
argument besides referring to the evidence of PW 23 laid more emphasis on the statement
of the appellant. Though an objection was raised asto the manner in which the
trial Judge questioned A3 with reference to contents of his letters dated
01.02. 2002 and02.02.2002, it is relevant to point out that when the person facing
trial insisted to look into the contents of his letters, the presiding officer
concerned has to meet his requirement subject to the procedure established. The
learned trial Judge accepted the entire contents of the admission made by A3
and affording reasonable opportunity and by following the appropriate procedure
coupled with the corroborative evidence of PW 23, upheld his involvement and
participation in the crime along with A1 which resulted in rioting, arson and murder
of three persons. Though learned senior counsel appearing for A3 was critical
on relying upon the letter Ex. 49said to have been written by A3 to his
Sister-in-law PW 9, it shows that A3 confessed to have participated in the
incident along with A1.
It is seen that the
entire contents of letter we reused by the trial Judge which was rightly
accepted by the High Court. The other circumstance urged by the prosecution was
that A3 absconded soon after the incident and avoided arrest and this ascendance
being a conduct under Section 8 of the Indian Evidence Act, 1872 should be
taken into consideration long with other evidence to prove his guilt. The fact
remains that he was not available for quite some time till he was arrested
which fact has not been disputed by the defence
counsel. We are
satisfied that before accepting the contents of the two letters and the
evidence of PW 23, the trial Judge afforded him required opportunity and
followed the procedure which was rightly accepted by the High Court. Additional
factors - Dara Singh (A1)
42)
In
addition to what we have highlighted and elicited from the materials placed, it
is relevant to point out that all the eye-witnesses examined by the prosecution
consistently stated that during occurrence the miscreants raised slogans in the
name of Dara Singh as "Dara Singh Zindabad". The story of this slogan
was also mentioned in the first information report lodged soon after the
occurrence. This slogan is in the name of Dara Singh, corroborates the
identification before the trial Court for the first time. In addition to the
same, some of the witnesses identified Dara Singh by photo identification. We have
already highlighted the evidentiary value of photo identification and
identifying the person in the dock. In other words, we have pointed out that
those materials coupled with the other corroborative evidence are permissible.
In addition to the same, all the witnesses mentioned about the blowing of whistle
by Dara Singh.
43)
Though
the trial Court awarded death sentence for Dara Singh, the High Court after
considering entire materials and finding that it is not a rarest of rare case,
commuted the death sentence into life imprisonment. The principles with regard
to awarding punishment of death have been well settled by judgments of this
Court in Bachan Singh vs. State of Punjab AIR 1980 SC 898, Machhi Singh vs.
State of Punjab(1983) 3 SCC 470, Kehar Singh vs. State (Delhi Administration)
(1988) 3 SCC 609. It is clear from the above decisions that on conviction under
Section 302 IPC, the normal rule is to award punishment of life imprisonment
and the punishment of death should be resorted to only for the rarest of rare
cases. Whether a case falls within the rarest of rare case or not, has to be
examined with reference to the facts and circumstances of each case and the
Court has to take note of the aggravating as well as mitigating circumstances and
conclude whether there was something uncommon about the crime which renders the
sentence of imprisonment for life inadequate and calls for death sentence. In
the case on hand, though Graham Staines and his two minor sons were burnt to death
while they were sleeping inside a station wagon at Manoharpur, the intention
was to teach a lesson to Graham Staines about his religious activities, namely,
converting poor tribals to Christianity. All these aspects have been correctly appreciated
by the High Court and modified the sentence of death into life imprisonment
with which we concur.
44)
Though
an argument was advanced that only after the intervention of PW 55, I.O. from
CBI, several persons made a confessional statement by applying strong arm
tactics that were used by the investigating agency, the entire case of the prosecution
has to be rejected, we are unable to accept the same for the reasons stated by
the trial Court and the High Court. We have ourselves in the earlier paras
adverted to the fact that some of the witnesses did not mention anything about
the incident to the local police or the District Magistrate or the higher level
police officers who were camping from the next day of the incident. However,
regarding the fresh steps taken by the Officer of the CBI, particularly, the
efforts made by PW 55, though certain deficiencies are there in the investigation,
the same cannot be under estimated. Likewise, it was pointed out that young children
were being coerced into being witness to the occurrence whereas the elder
family members were never joined as witness by the prosecuting agency. It is
true that the prosecution could have examined elders and avoided persons like
PW 5 who was a minor on the date of the incident. We have already discussed
about the veracity of witnesses and found that certain aspects have been established
and accepted by the trial Court as well as the HighCourt.
45)
Finally,
insofar as the appeals filed by the CBI against the order of acquittal by the
High Court in respect of certain persons, it was pointed out that when two
views are possible, the one in favour of the accused should be accepted. It is
true that the presumption of innocence is a fundamental principle of criminal
jurisprudence. Further, presumption of innocence is further reinforced,
reaffirmed and strengthened by the judgment in his favour. [Vide State of Uttar
Pradesh vs. Nandu Vishwakarma & Ors., (2009) 14 SCC 501 (Para 23),
Sambhaji Hindurao
Deshmukh & Ors. Vs. State of Maharashtra, (2008) 11 SCC 186 (Para 13),
Rahgunath vs. State of Haryana, (2003) 1 SCC 398 (Para 33) and Allarakha K.
Mansuri vs. State of Gujarat, (2002) 3 SCC 57(Paras 6 & 7)]. In the earlier
paragraphs, we have highlighted the weakness and infirmities of the prosecution
case insofar as acquitted accused who are all poor tribals. In the absence of definite
assertion from the prosecution side, about their specific role and involvement,
as rightly observed by the High Court, it is not safe to convict them. We
entirely agree with the reasoning and conclusion of the High Court insofar as
the order relating to acquittal of certain accused persons.Conclusion
46)
In
a country like ours where discrimination on the ground of caste or religion is
a taboo, taking lives of persons belonging to another caste or religion is
bound to have a dangerous and reactive effect on the society at large. It
strikes at the very root of the orderly society which the founding fathers of
our Constitution dreamt of. Our concept of secularism is that the State will
have no religion. The State shall treat all religions and religious groups
equally and with equal respect without in any manner interfering with their individual
right of religion, faith and worship.
47)
The
then President of India, Shri K R. Narayanan on cesaid in his address that
"Indian unity was based on a tradition of tolerance, which is at once a
pragmatic concept for living together and a philosophical concept of finding
truth and goodness in every religion". We also conclude with the hope that
Mahatma Gandhi's vision of religion playing a positive role in bringing India's
numerous religion and communities into an integrated prosperous nation be
realised by way of equal respect for all religions. It is undisputed that there
is no justification for interfering in someone's belief by way of `use of force',
provocation, conversion, incitement or upon a flawed premise that one religion
is better than the other.
48)
The
analysis of entire materials clearly shows that the High Court is right in
arriving at its conclusion. In the case on hand, there is no material to prove
conspiracy charge against any of the accused. However, as pointed out by the
High Court which we also adverted to in the earlier paras even in the midst of
uncertainties, the witnesses have specified the role of (A1) and (A3) which we
agree with and confirm the same and we also maintain the conviction of the
appellant Dara Singh (A1), Mahendra Hembram (A3) and the sentence of life
imprisonment imposed on them. In the same way, in the absence of acceptable
materials and in view of the various infirmities in the prosecution case as
pointed out by the High Court, we confirm the order of acquittal of others who
are all poor tribals.
49)
In
the result, Criminal Appeal No. 1366 of 2005 filed by Rabindra Kumar Pal @ Dara
Singh, Criminal Appeal No. 1259of 2007 filed by Mahendra Hembram and Criminal
Appeal Nos. 1357-1365 filed by CBI are dismissed.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(DR. B.S. CHAUHAN)
NEW
DELHI;
JANUARY
21, 2011
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