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CASE NO.:

Appeal (crl.) 867-868 of 2005

PETITIONER:

Aloke Nath Dutta & Ors

RESPONDENT:

State of West Bengal

DATE OF JUDGMENT: 12/12/2006

BENCH:

S.B. Sinha & Dalveer Bhandari

JUDGMENT:

JUDGMENT

W I T H

CRIMINAL APPEAL NO.875 OF 2005

S.B. SINHA, J :

INTRODUCTION :

Premise No.2C, a three storied building situate at Beadon Street

situated in the town of Kolkata, belonged to one Jagannath Dutta. He

transferred the said property in favour of his wife Arunamoyee Dutta on

certain terms and conditions wherewith we are not concerned. She had four

sons and one daughter. During her life time, two of the sons, namely,

Biswanath Dutta (deceased) and Aloke Nath Dutta, (appellant), were

residing with her. Biswanath used to stay at the second floor with some

tenants occupying some portions thereof; whereas Aloke Nath Dutta used to

reside on the first floor. Her daughter Anuradha Das was married and was

residing at Jadavpore. Two other sons, namely, Amar Nath Dutta (PW-4)

and Samar Nath Dutta (PW-3) were residing in the towns of Chandannagore

and Bararast respectively.

Arunamoyee Dutta died intestate in April, 1993. Aloke Nath was

working with Kolkata Police, whereas Biswanath was employed in the

United Bank of India. Biswanath was a bachelor, whereas Aloke Nath is

married. Mamata one of the appellants herein, is Aloke Nath's wife. Sister

of Mamata and her husband Shib Sankar Roy @ Gobinda @ Babu Roy

were also residing on the first floor.

Appellants herein are alleged to have entered into a conspiracy to

commit the murder of Biswanath on 22.01.1994 at the first floor of the said

premises, the details whereof, we would deal with hereinafter.

PROSECUTION CASE :

Aloke Nath had many vices. He was a spendthrift. He was a

womanizer and spent a lot of money in gambling and horse racing etc. He

intended to sell the said house property, wherefor he entered into agreements

for sale with one Nandlal Singh as also with one Arunmoy Bose. Arunmoy

Bose advanced a sum of Rs.65,000/- to him. Nandlal Singh (PW-15) also

had advanced various sums of money to Aloke Nath from time to time. He

on the advice of his advocate Bikash Pal (PW-14) refused to advance any

further sum till the time he was put in possession of the room of the second

floor and the Puja Room; which was promised to be delivered on

23.01.1994.

Prosecution story is that the deceased was not in favour of sale of the

said property. The transactions with regard to the sale of the said property,

in favour of the said Nandlal Singh and Arunmoy Bose, however, were

being conducted, as if Biswanath was a party thereto. Appellant Mrinal

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Dutta is said to have been impersonating Biswanath and singed several

documents in his name.

Aloke Nath absented himself from duty from 7.00 p.m. on

22.01.1994 to 28.01.1994, as disclosed by his colleagues Sahadev Mondal

(PW-33), Ananta KumarThanedar (PW-34), and Biman Ghosh Dastidar

(PW-35).

Possession of Pooja Room and a room occupied by Biswanath was

delivered to Nandlal Singh on 23.01.1994. Nandlal Singh noticed a newly

constructed 'bedi' in the said room. He asked him the reasons therefor, and

was informed that it was constructed for cooking purpose. He asked him to

remove the same; whereto Aloke Nath promised to do so after registration

of the sale deed. Nandlal Singh, as advised by his advocate, Bikash Pal,

issued an advertisement in the Newspaper 'Ananda Bazar Patrika', a Bengali

Daily, on 31.01.1994. Bikash Pal suspected that Aloke Nath might have

other brothers and sisters and therefore advised issuance of such

advertisement. Amar Nath, Samar Nath and Anuradha Das (PWs. 4, 3 and 5

respectively) informed Bikash Pal that they were also co-owners of the said

property and were not agreeable to sell the house.

In view of the aforementioned developments, Samar Nath (PW-3),

Amar Nath (PW-4) and Avijit Dutta (PW-6) allegedly visited the Premises

No. 2C, Beadon Street on 06.03.1994. They enquired about whereabouts of

Biswanath and were informed that he had started living at Barasat. They

visited the house the address whereof was furnished by Aloke Nath. They

found out the same to be bogus as no person called Biswanath had been

residing there. They came back to Premises No.2C, Beadon Street. They

insisted upon Aloke Nath to disclose the whereabouts of Biswanath,

whereupon Aloke Nath allegedly broke down and made an extra judicial

confession before them, as also Nandlal Singh and some tenants, that he had

throttled Biswanath to death. While commotion was on, the officer in

charge of the police station was informed by some neighbour of Aloke Nath.

While police was coming to the said premises, they met Samar Nath on the

way, who was going to inform them about the incident. The police officer

came to the said house. Aloke Nath was arrested in the afternoon of

06.03.1994. He was interrogated in the Police Station and was brought back

by the police personnel. The other accused were arrested on the next day.

Aloke Nath is said to have made a confession at the police station that

he had concealed the dead body in a platform (a kind of cistern made of sand

and bricks). He pointed towards the said platform, whereupon two labourers

and one mason were sent for; forensic experts were summoned. The said

cistern was broken and dismantled. Foul smell came out therefrom and a

human skeleton lying beneath the same was seen. The skeleton was said to

have been identified to be that of Biswanath by Aloke Nath himself, which

was seized and sent to morgue. Cause of the death, according to the

autopsy report was asphyxia. Aloke Nath also made a confession leading to

recovery of certain articles belonging to the deceased Biswanath from the

rented premises which he had been occupying, as also a confession leading

to recovery of some of the household articles.

Appellant Mrinal Dutta is also said to have made a statement under

Section 164 Cr. P.C. before T. Uddini, Metropolitan Magistrate, 3rd Court

Kolkata on 21.03.1994. He, however, retracted therefrom on or about

16.06.1994.

Investigation was conducted by Sub Inspector Sukhendu Barick

attached to Burtolla Police Station. However the case was transferred to the

Detective Department of Kolkata Police and from 08.03.1994, Sub Inspector

Atanu Banerjee (PW-48) took over the investigation of the case.

After having filed the charge-sheet, cognizance of the offence was

taken and the case was committed to the Court of Sessions.

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CHARGE :

All the accused were put to trial. Three different sets of charges

were framed against them, under Sections 120B/302/34 and 201/34 IPC, in

the following terms :

"First \026 That you, all in the month of

January, 1994 at 2/C, Beadon Street, Calcutta, agreed to

do and caused to be done an illegal act, to wit, to cause

the death of Biswanath Dutta by murdering him to enable

Aloke Dutta to sell the premises no. 2/C, Beadon Street,

Calcutta and that such illegal act of murder was

committed in pursuance to the agreement and you all

thereby committed an offence punishable under Section

120B/302 of the Indian Penal Code, and within the

cognizance of this Court of Sessions.

Secondly \026 That you, all on about the night 22nd

day of January 1994 at 2/C, Beadon Street, Calcutta,

pursuant to the criminal conspiracy mentioned in Court

No.1 above and with the common intention of you all,

did commit murder by causing the death of Biswanath

Dutta, and you are thereby committed an offence

punishable under Section 302/34 of the Indian Penal

Code, and within the cognizance of this Court of

Sessions.

Thirdly \026 That you, all on or about the night of

22nd day of January 1994, at 2/C, Beadon Street,

Calcutta, with the common intention of you all, to cause

the evidence of murder to disappear and to screen the

offenders, concealed the dead body of Biswanath Dutta

after he was murdered, inside the cavity created on the

wall shelf of the room of Aloke Dutta and thereafter

covered the same by bricks and cements and you all

thereby committed an offence punishable under Section

201/34 Indian Penal Code and within the cognizance of

this Court of Sessions.

And I hereby direct that you be tried by the said Court on

the said charge."

NATURE OF EVIDENCE :

Before the learned Sessions Judge, as many as 48 witnesses were

examined on behalf of the prosecution. The brothers of Appellant Aloke

Nath, viz. Amar Nath and Samar Nath, and Sister Anuradha examined

themselves as PWs. 4, 3 and 5 respectively. Son of Amar Nath, Avijit, was

examined as PW-6.

Witnesses examined on behalf of the prosecution can be sub-divided

in three categories, namely, (i) Sale of house, (ii) Tenants at Premises No.

2C, Beadon Street, and (iii) Witnesses who testified about Aloke's character

and conduct as also others like Photographer, labourers, Mason etc.

We would deal with the depositions of the prosecution witnesses

hereafter at an appropriate stage.

SESSIONS JUDGE :

The learned Sessions Judge by reason of the judgment of conviction

and sentence dated 29.08.2003 convicted Aloke Nath, Mrinal Dutta and

Gobinda Roy under Sections 302/120B and 302/34 IPC and sentenced them

to death. Mamata Dutta was, however, sentenced to suffer imprisonment for

life under Section 302/34 IPC and to pay a fine of Rs.5,000/-, in default to

suffer imprisonment of two more years. They were also convicted for

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commission of offence under Section 201/34 IPC and to pay a fine of

Rs.3,000/- each, in default to suffer imprisonment for one more year. No

separate sentence was awarded under Section 402/120B IPC.

Appellants preferred appeals before the High Court.

HIGH COURT :

The High Court agreed with the findings of the learned Sessions

Judge. It was opined that all Appellants had hatched a conspiracy and the

deceased was killed when he was asleep. While considering the quantum of

punishment, the High Court sought to draw a balance between aggravating

and mitigating circumstances and observed that the case comes within the

category of rarest of rare cases. It was observed that the learned Sessions

Judge had rightly exercised the option in favour of the capital punishment to

Aloke Nath, Mrinal Dutta and Shib Sankar Roy @ Gobinda @ Babu. The

High Court refused to differentiate the case of Aloke Nath from that of

Mrinal Dutta and Gobinda @ Babu, holding that all the three were part of

the conspiracy to execute the pre-planned murder of Biswanath. Upon

screening of evidence, the High Court dismissed the appeals preferred by

them. The order of conviction and sentence of the learned Trial Judge passed

against Mamata was also upheld by the High.

SUBMISSIONS :

Arguments on behalf of Appellants have been advanced principally by

Mr. Pradip Ghosh, the learned Senior Counsel appearing on behalf of Mrinal

Dutta.

Submissions of the learned Senior Counsel are :

(i) The judgment of conviction being based on circumstantial

evidence and there being no eye-witness; the prosecution cannot

be said to have proved all the links in the chain so as to prove that

Appellants were guilty of commission of the alleged offences.

(ii) Circumstantial evidences brought on records by the prosecution

were not sufficient to bring home the charge of conspiracy against

Appellants to commit murder of Biswanath.

(iii) The courts below committed a serious error insofar as they failed

to distinguish between a larger conspiracy to commit a murder and

a relatively smaller conspiracy for impersonation of Biswanath by

Mrinal Dutta, committing the offence of forgery or cheating

(iv) As the purported extra judicial confession made by Aloke Nath

was confined to acceptance of his own guilt, the courts below

could not have convicted all Appellants under Section 302/34 IPC

relying on or on the basis thereof.

(v) The purported confession made by Aloke Nath leading to recovery

of the dead body and certain articles belonging to Biswanath which

had been sold to Gobinda Sarkar (PW-26), did not conclusively

lead to the prosecution's case of conspiracy; and no judgment of

conviction could have been arrived at solely on the basis thereof,

having not been corroborated in any manner whatsoever.

(vi) Confession of an accused, even if accepted, must be considered in

its entirety and not in pieces

(vii) The judgment of conviction could not have been arrived at on the

basis of judicial confession made by Mrinal Dutta which has since

been retracted and was thus of weak evidentiary value, especially

when there was no corroboration thereof

(viii) Mrinal Dutta was not put to test identification parade, although

Aloke Nath was. His identification in court by the witnesses was

of weak evidentiary value and no reliance could have been placed

thereupon.

(ix) Judicial confession purported to have been made by Mrinal Dutta

disclosed that he had been forced to join Aloke Nath and, thus, the

courts below ought to have held that he made confession as a

repenter and his being a party to the larger conspiracy was, thus,

in serious doubt.

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(x) In any view of the matter, extreme punishment of death could not

have been awarded having regard to the nature of the evidences led

by the prosecution.

Submissions of Mr. Altaf Ahmad, the learned Senior Counsel

appearing on behalf of the State, on the other hand, were :

(i) That although there was no direct evidence as against Appellants,

the sixteen circumstances enumerated by the learned Trial Judge

and affirmed by the High Court, were based on positive evidences

led on behalf of the prosecution.

(ii) Evidences, both oral and documentary, led by the prosecution were

sufficient to arrive at the finding of guilt as against all the accused.

(iii) Extra judicial confession made by Appellant Aloke Nath having

not been retracted and the same having been proved by a large

number of witnesses including independent witnesses and it being

voluntary in nature was rightly relied upon by the courts below.

(iv) Extra judicial confession made by Aloke Nath was made to his

elder brothers Samar Nath (PW-3) and Amar Nath (PW-4) in the

presence of his nephew Avijit Dutta (PW-6), the intending

purchaser of the house Nandlal Singh (PW-15) as also two tenants

of the premises, namely, Swapan Dutta (PW-18) and Bijoy Sharma

(PW19) and their testimonies having not been shaken in cross-

examination, the learned Trial Judge as also the High Court

committed no error in passing the judgment of conviction and

sentence as against all of them.

(v) A free and voluntary confession deserves due credit as it is

presumed to flow from the highest sense of guilt.

(vi) Judicial confession might have been retracted, but the learned Trial

Judge and the High Court upon analysis of the material brought on

records came to the conclusion that the same was true and had

been voluntarily made, and there is no reason to interfere with the

said findings. It is not a rule of law that a judicial confession must

be corroborated in materials produced by independent witnesses.

(vii) Appellant Mrinal Dutta having retracted his confession only at a

much later stage without specifying any reason therefor; no

importance thereto should be attached.

(viii) In his examination under Section 313 of the Code of Criminal

Procedure he alleged torture at the hands of PW-44, but PW-44

having not been cross-examined on the said point, the judicial

confession was admissible in evidence not only against the maker

thereof, but also against the co-accused in terms of Section 30 of

the Indian Evidence Act.

(ix) Enough materials by way of documentary and oral evidences of the

witnesses were brought on records to prove criminal conspiracy

showing not only that Mrinal Dutta but also Babu Roy and

Mamata Dutta signed various documents executed by Aloke Nath.

(x) Judicial confession made by Mrinal Dutta contained vivid

description of the manner in which the deceased Biswanath was

done to death and his dead body was put in the bedi (platform) in

the room occupied by Aloke Nath, the same was sufficient to prove

the charge of conspiracy. In any event, involvement of all the

accused persons in committing murder of Biswanath and disposing

of the dead body has amply been proved.

DISCUSSIONS :

The incident took place on the night of 22.01.1994. Biswanath was

last seen alive by some of the tenants, who were examined viz. Swapan

Dutta (PW-18), Bijoy Sharma (PW-19), Albela Sukla (PW-20), and Raj

Kishore Singh (PW-23). According to PW-18, he had seen Biswanath alive

on the said date. He had also allegedly seen Biswanath being called by

Appellant Aloke Nath to his own room. He was not heard and seen

thereafter.

Analysis of the evidences is required to be done keeping in view the

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factual matrix involved herein.

Criminal Conspiracy :

Criminal conspiracy, if any, arose out of the greed of Aloke Nath. He

needed money to satisfy his bad habits. A situation came to such a pass that

he had to negotiate with two persons for sale of the house simultaneously.

He had taken money from both the intending purchasers. Apparently, with a

view to extract money from the said two purchasers, he pretended, that he

and the deceased were the only owners of the house. The deceased might

not have been willing to sell the house, but he might not have also been

aware of the transactions. Aloke Nath might have intended to keep him in

dark and swallow the entire amount of consideration. His other brothers and

sisters had also not been taken into confidence. Indisputably, they were on

litigating terms with the deceased and Appellant Aloke Nath. Assistance of

Mrinal Dutta in impersonating Biswanath was obtained by Aloke Nath. He

was paid a sum of Rs.5,000/- for the same. He was impersonating Biswanath

and had been signing, executing documents and posing himself as such at

Aloke Nath's instance.

When Nandlal Singh (PW-15) pressurized Aloke Nath to hand over

possession of a few rooms to him on the advice of his lawyer Bikash Pal,

Aloke Nath apparently became desperate. Whether he hatched a conspiracy

with the other Appellants at that point of time to do away with his brother

Biswanath and dispose of his dead body so as to get the entire amount of

consideration of the sale of the house, is the core question. There is no

direct evidence to show that other Appellants also were part of the said

conspiracy. Their presence had not been noticed by any of the witnesses.

Nobody saw them together in the house. Nobody saw Mrinal Dutta coming

to the house even once. We are not oblivious of the fact that it is difficult to

have direct evidence of conspiracy. But to prove conspiracy hatched to

commit a heinous crime, circumstantial evidence brought on records must be

such which would have no loose ends to tie.

Circumstances :

With the aforementioned principles in mind, we may now notice the

various circumstances found to be existing against Appellants as enumerated

by the learned Trial Judge and accepted by the High Court.

For the aforementioned purpose we may, at the outset notice, the

statements of the witnesses whom we have categorized in Category (i).

PW-7, Shanker Dey is an attesting witness to the agreement for sale of

the house in question with Arunmoy Bose (PW-8). He proved passing of an

advance amounting to Rs.65,000/- to Aloke Nath. Arunmoy Bose who was

the intending purchaser and with whom Aloke Nath had entered into an

agreement also proved passing of the said consideration to Aloke Nath.

Both Shanker Dey (PW-7) and Arunmoy Bose (PW-8) also stated in details

the negotiations leading to execution of the said agreement for sale.

Sudhakar Singh (PW-10) and Nawratan Singh (PW-16) were brokers.

They were employed by Nandlal Singh (PW-15). They have also deposed as

to how the transactions relating to sale of the house by Aloke Nath in favour

of Nandlal Singh proceeded. They have also proved passing of the amount

of advance from time to time by Nandlal Singh in favour of Aloke Nath.

Bikash Pal, who examined himself as PW-14 is again a witness who was a

witness to the said transaction. It was only at his instance Nandlal Singh

refused to give further advance to Aloke Nath unless he had been put in

possession of a part of the said property. Bikash Pal advised Nandlal Singh

to publish an advertisement in the Anand Bazar Patrika as he suspected that

there might be other owners of the property. He identified the accused in

court. Other witness also identified them. Their evidences taken in entirety

however do not lead to the conclusion that they conspired to murder

Biswanath. But it is sufficiently clear that they conspired to sell the property.

We would deal with this question a little later at some depth.

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We would hereinafter notice the alleged sixteen circumstances

enumerated by the learned trial judge in his judgment and the evidences

available in regard thereto :

1. Since the death of his mother, Aloke Nath tried to sell the house

surreptitiously without informing his other brothers and sister, and as

he was not supported by Biswanath, he endeavuored to sell the house

secretly.

2. Prior to the said incident, Aloke Nath entered into an agreement with

Arunmoy Bose (PW-8) and received a sum of Rs.65,000/- where

Aloke Nath had put his signature and Mrinal Dutta had signed as

Biswanath.

3. To earn more money and to grab the property of his brothers, Aloke

Nath entered into an agreement with one Nandlal Singh (PW-15). He

introduced Mrinal Dutta as Biswanath and delivered possession of the

two rooms on the 2nd floor. He was asked to dismantle the kaccha

bedi to he replied that the same would be dismantled later on.

Payment of advances was made from time to time.

4. Possession of the first floor was delivered in the month of February

1994, whereupon it was noticed that the 'bedi' had not been

dismantled, instead it was made more stronger by fully plastering it

with red colour cement.

5. As per advice of Bikash Pal (PW-14) an advertisement was published

in Ananda Bazar Patrika for sale of the house.

6. Bikash Pal received three objections (Ex. 24 collectively). He in turn

wrote two letters to PWs-3 and 4 (Ex. 25). When he informed

thereabout Aloke Nath told that he was trying for settlement with

them.

7. Possession of the first floor was delivered to PW-15 on 14.02.1994 by

Aloke Nath and he told that Babu Roy would stay in the covered

verandah for a couple of days.

8. In the morning of 06.03.1994, PWs-3, 4 and 6 reached the place of

occurrence and found PW-15 in occupation. On being asked, Aloke

Nath replied that Biswanath had left for Barasat and was staying at

11/1, Jhawtola Lane, near Barasat Chowrasta, whereafter they left for

the said place.

9. PWs-3, 4 and 6 returned to Premises 2C, Beadon Street and as they

did not find existence of the address, they charged Aloke Nath to

speak the truth in presence of tenants, local people etc. Aloke Nath

then confessed that he had throttled Biswanath to death in the

midnight of 22.01.1994 and kept the dead body concealed inside the

hosue.

10. On 06.03.1994, O/c Burtolla Police Station received a telephonic

message from an anonymous caller about the disturbance in front of

the said premises. Police recorded the statement of PW-3, Samar

Nath and arrested Aloke Nath.

11. On the basis of the said confession, the bedi was dismantled by mason

and labourers PWs-9, 30 and 31 and a human skeletonized body was

found, which was identified by Aloke Nath to be of the deceased

Biswanath. This fact has been proved by the PWs-3, 4, 6, 9, 15, 18,

19, 23, 30, 46 and 47.

12. PWs-3, 4 and 6 also disclosed about the special identification mark(s)

of Biswanath. The doctor on examination of the skeletonised body

opined that the same was homicidal in nature and the death was due to

throttling.

13. Skeletonised body had been subjected to the superimposition test

conducted by expert PW-41, who opined the examined skeleton to be

that of a human male, 5'-6" feet tall, aged 40-50 years.

14. Biswanath was seen alive on 22.01.1994 as he went to the office

which has been proved by Ex.64 and 64/1. Accused Mrinal Dutta in

his confessional statement which is believable, remarked that Aloke

Nath and Biswanath were seen together on 22.01.1994 between 10-

10.30 p.m. at 2C, Beadon Street. Biswanath was goaded to sleep in

the verandah on the 1st floor, near Aloke Nath's bedroom on the plea

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that Biswanath's room on 2nd floor was under repair.

15. Accused Mrinal Dutta came to the premises and found Aloke Nath,

Babu Roy, Mamata Dutta and her two daughters present there.

Thereafter, in the midnight of 22.01.1994, Aloke Nath had first

entered into the covered verandah where Biswanath was sleeping and

having found Biswanath in sound sleep, called Babu Roy, Mrinal

Dutta and Mamata Dutta. Mamata gave one blanket to Aloke Nath

who then covered the head and face of Biswanath with the blanket,

Mrinal Dutta caught hold of the hands of Biswanath and Babu Roy

held his legs. The accused Aloke Nath then pressed the neck of

Biswanath and killed him.

16. After delivery of the possession of the first floor of the premises to

PW-15, Aloke Nath shifted his residence to the tenanted premises. On

the basis of his confessional statement (Ex. 108) and on being

identified and pointed out by him, the Investigating Officer on

10.03.1994 recovered and seized the personal belongings of

Biswanath. On some articles the name of Biswanath appeared.

Evidences accepted by the Trial Judge :

Re: Circumstnaces Nos.1 & 2 :

PW-7 Shankar Dey, is the attesting witness to the agreement made by

Aloke Nath with Arunmoy Bose to sell the house. He, as noticed

hereinbefore, identified Mrinal Dutta as impersonating Biswanath.

Arunmoy Bose (PW-8) has also proved the said fact.

Re: Circumstances Nos. 3 & 4 :

Sudhakar Singh (PW-10) and Nawratan Singh (PW-16) who worked

as brokers on behalf of Nandlal Singh (PW-15). They were witnesses to the

said transaction. Sudhakar Singh, Nawratan Singh and Nandlal Singh

allegedly saw the kacha bedi, as also the objection on the part of Nandlal

Singh in regard thereto, to which Aloke Nath responded by promising to

dismantle the same, when the sale deed was registered.

Re: Circumstances Nos. 5 & 6 :

Publication of advertisement in Anand Bazar Patrika on 31.01.1994 in

respect of the transfer of Premise No.2C, Beadon Street, Kolkata (Ex.61) has

been proved by Bikash Pal (PW-14), Nandlal Singh (PW-15), intending

purchaser; as also Bijit Kumar Basu, General Manager (Law), Anand Bazar

Patrika (PW-28). Amar Nath (PW-4), brother of Appellant Aloke Nath, in

his evidence stated that he with his brother and sister filed objections before

Bikash Pal in respect of the proposed sale. From the evidence of Bikash Pal

(PW-14), it further appears that he confronted Aloke Nath with objections of

his brothers and sister. Aloke Nath allegedly assured that he would settle the

matter with them. Bikash Pal in his deposition further stated that according

to Aloke Nath, there was a deed of family dispute. He has also proved that

on earlier occasion Aloke Nath had mentioned only about his one brother

and sister but the sister was never brought in picture; and only having

become suspicious as regards correction of the said statement he advised

Nandlal Singh for publication of the notice in the said newspaper.

Re : Circumstance No.7 :

Sudhakar Singh (PW-10), Nandlal Singh (PW-15) and Nawratan

Singh (PW-16) were witnesses to the delivery of possession of the room

which had been occupied by Aloke Nath. They stated that Aloke Nath

represented that his brother in law and family would stay in the covered

verandah, for a couple of days. He further represented that the 'bedi' would

be dismantled immediately after registration. The evidence of the said

witnesses also show that apparently Aloke Nath had contacted his brothers

and sister and only on that basis he had asked Nandlal Singh (PW-15) to be

present in the premises at 2C Beadon Street on 10.03.1994, as his elder

brothers and nephew PWs 3, 4 and 6 would visit.

Re: Circumstance No.8 :

The visit of PWs 3, 4 and 6 at the premises stood proved by their

evidences. They further stated that when asked about the whereabouts of

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Biswanath, they were told that he was staying at 11/1, Jhawtola Lane, near

Barasat Chowrasta; whereupon they visited that place and came back after

they failed to ascertain the said address.

Re: Circumstance No.9 :

Circumstance No.9 has been proved by PWs 3, 4 and 6 as also PWs

15, 18 and 19. The purported confession of Aloke Nath was made in

presence of the said witnesses. The purported confession was made when

PWs 3, 4 and 6 came back after search of the deceased at Barasat Chowrasta

and accosted Aloke Nath with regard to the whereabouts of Biswanath.

Evidently they suspected some foul play. It is at that point of time, Aloke

Nath was said to have broken down and made the confession before the said

witnesses.

Re: Circumstance No.10 :

It would appear from the evidences of Sukhendu Barick, Sub

Inspector of Police (PW47) and Samar Nath (PW-3) that when the police,

having received information that some untoward incident had happened at

2C, Beadon Street, was going to the said place, Samar Nah met them on the

way who was going to the police station to lodge an F.I.R. The police came

to the said premises and recorded his statement. Aloke Nath was arrested.

The said circumstance has been proved by Samar Nath (PW-3) and Amar

Nath (PW-4), brothers of Appellant Aloke Nath, Avijit Dutta son of Amar

Nath (PW-6), Nandlal Singh (PW-15), Swapan Dutta (PW-18) and Bijoy

Sharma (PW-19), tenants of the said house. Thereafter Aloke Nath made

confession.

Aloke Nath made three confessions : (i) confession stating the manner

in which the deceased was killed as also burial of his dead body; (ii)

confession leading to the recovery of the dead body; and (iii) confession

relating to the disposal of the belongings of Biswanath.

Relevant portions of the second confession are as under :

"On the night of 22.01.1994, after strangulating

my elder brother Biswanath Dutta to death, I built up

kind of a cistern with bricks, sand and cement underneath

the cupboard on the southern side of a first floor room of

our ancestral home, in which I used to live, and hid the

dead body of my elder brother inside it and sealed the

cistern, giving it the shape of a masory platform. If I am

taken along there I can show that room and the masory

platform built inside it.

After having buried the dead body of my elder

brother Biswanath Dutta into the cistern. The excess

brick, sand and cement had been kept under a cot in our

house. If I am taken along, I can show them as well.

Recorded by me, read-over explained and admitted

to be correct."

"After killing my elder brother Biswanath Dutta, I

hid his valuable belongings like record player, tape,

radio, wall clock, amplifier, suitcase, shirts, trousers, bag,

three trunks etc. and many other articles in my bedroom

at my present address at J/F/6/1, Ashwini Nagar, Bidhan

Palli, Baguihati, Calcutta-59. If I am taken along there I

can show that room and the belongings of my elder

brother.

The police interrogated me and recorded my

statement.

Recorded by me, read-over explained and admitted

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to be correct."

Relevant portions of the third confession is as under :

"After killing my elder brother Biswanath Dutta,I

sold the wooden almirah in his room, mirror and many

other articles including our domestic pump set etc. to

Gobind Sarkar a resident of Nimtala for seven thousand

rupees. If I am taken along, I can identify Gobinda

Sarkar, his residence and those articles.

Selling of those articles (partly torn) and I got the

money from Gobind Sarkar and give him a receipt for the

same.

The police interrogated me and recorded my

statement.

Recorded by me, read over, explained and Bengali

and admitted to be correct."

Re : Circumstance No. 11 :

His confession lead to the recovery of the dead body, PW-3, PW-4,

PW-6, PW-9, PW-15, PW-18, PW-19, PW-23, PW-30, PW-46 and PW-47

were witnesses to the said recovery. Sukhendu Barick, Sub-Inspector (PW-

47) allegedly sent for masons for demolishing the Bedi; whereupon Jatin

Singh (PW-9) and Gopal Pramanik (PW-30) masons, came and demolished

the Bedi. A human body in form of skeleton was noticed, which was taken

out and identified to be that of Biswanath. Ashok Kumar Banerjee,

Inspector of Kolkata Police (PW-47) is also a witness to the said occurrence.

Re: Circumstances Nos. 12 and 13 :

Circumstances Nos. 12 and 13 relate to the identification of the dead

body and its autopsy. Biswanath was to have an extra tooth. It was proved

by his brothers PW-3 and PW-4 as also his nephew PW-6. It was found to

be an identification mark. The ante-mortem injuries on the dead body and

the opinion of Dr. Nandy (PW-39), Autopsy Surgeon ,are as under :

"\005There was 4" x 3" area of extravasation of blood on

the surface of trachea and surrounding soft tissue along

with hyoid and thyroid. There was fracture hyoid bone

on the right cornue with evidence of extravasation on the

margins. Evidence of extravasation on the posterior

aspect of oesophaeal 2" x <" size against 3rd, 4th and 5th

cordial vert. Extravasation are more on the right side of

midline for both trachea and oesophagus and also other

tissue. The extravasation were blakish red in colour. No

other injury could be detected ever after careful

examination. The right femur was 17.8", the 12.3" and

the right ulna 11.1". The changes in symphyseal surfact

were at part with the mentioned age of 43 years. I

preserved stomach with contents both kidneys and liver

insaturated solution of common salt. Sample of

preservative was preserved. Scalp hair heart were

preserved without any preservative, nail cutting

preserved tissue from extravagated area preserved. Both

preserved. There was no blood of neck for example

throttling ante-mortem and homicidal in nature. This is

the report which bears my signature."

The dead body was also examined by Dr. V.K. Kashyap (PW-41). In

his evidence, he opined that the dead body was of a human male, aged about

40-45 years and his height would be around 5' and 6".

Re: Circumstance No.14 :

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Swapan Dutta (PW-18) was a tenant of the second floor of the

premises (pages 109-113). He saw Biswanath at 10-10.30 p.m. on the night

of 22.01.1994. According to the said witness, he was taken to the first floor

of the house by Aloke Nath on the pretext that his room was under repairs.

He had testified that Biswanath was not seen thereafter. Kartick Chandra

Sinha, (PW-29) who was the Chief Manager of the United Bank of India,

also proved that from 23rd January, 1994 onwards Biswanath did not attend

his office.

Re: Circumstance No.15 :

There is no independent witness to prove the said fact except the

purported confessional statement of the accused Mrinal Dutta. His

purported confession before the Magistrate is as under:

"My wife's brother Gobindo Roy used to stay on

rent at the house of Alok Nath Dutta at (2/C) Beadon

Street, I was introduced to Alok through Gobindo. Alok

and me used to visit each other's house. Alok did not

bear a good character. He used to have stakes in horses,

Satta (a sort of numbers game played for gambling) and

also used to go to at prostitutes. Alok's elder brother

Biswanath Dutta also used to stay at the same house.

They did not have good relation among them. Alok told

me during the Puja of 1993 that he would sell his house

and also tried hard for that. On the last November he told

me that he wanted to sell the house but since his elder

brother was not agree to sign, I had to sign in the name

of Biswanath Dutta. At first I did not agree. Then he

told that he would give me money. "You sign it". I was

in need of money, so I agreed with that. Then he took

my signature in the name of Biswanath Dutta in quite a

few sheets of paper. He gave me Rs.5000/- (five

thousand rupees only) in instalments. After that he told

me to sign in a quite a few sheets of papers. In date

19/20 on the last January month of 1994 he came to my

house and said, I think the house cannot be sold "Dada"

(Elder brother) is not agreeing to put his signature. It is

better to eliminate 'dada' (elder brother). He said, "I am

thinking of murdering my 'Dada' (Elder brother)". I said

him, "I cannot do this". He said, 'You had put fake

signature. So, if we get caught, we will not spare you

either." Mamata Dutta is the wife of Alok Dutta.

Gobinda Roy signed some of the papers while Mamata

signed some others. Gobindo is the brother of my wife.

He is also the husband of my wife's sister. He left after

we stopped and on the following I went to Alok's place.

He told me further that he would pay me Rs.10,000/-

more. I said, if I am spared for this, then I am agree to do

this". I found Gobindo, Alok, Mamnata \026 the three were

sitting at his house. They closed the door after they took

me to the room at first floor. Then he, Gobindo, Alok

and Mamata said to me, on 22nd January, at night, you

will come. Gobindo and Alok will make all the

arrangements". While leaving they said, if you don't

come, we shall harm you". As usual I came to Alok's

house on 22nd January at 10.00 p.m. and saw that Alok,

Gobindo, Mamata and two daughters of Alok talking.

As I went they let me in and shut the door. As I entered

in the room I saw that there was a little brick wall under

the cupboard (wall Almirah). There were some cement,

sand and bricks on the floor. Just at 10.30 p.m.

Biswanath Dutta came to the house. Alok said to

Biswanath, the work is going on at the room of second

floor. "You lie down on the wooden cot at the veranda

on the first floor". Biswanath lied down on the veranda.

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We were sitting inside the room. At about 12/12.30 p.m.

two daughters of Aloke were slept. Then Alok came

outside. After some time came inside the room and said,

Dada (elder brother) had slept. Then Mamata gave Alok

a rug. Gobindo, Alok and I came outside. At once

Gobinda held two legs of Biswanath. I held two hands.

Alok suffocated Biswanath on placing the rug on his face

and neck, after 7/8 minutes Alok took the rug from the

face of Biswanath. Then he pulled the hairs of

Biswanath and on turning the eye lids he saw and said,

"the work has been done. Immediately four of us took

the dead body inside the room and laid the dead body

inside the brick-structure after folding two legs. Then all

of us filled up the rest of the sand and bricks which were

kept aside over the dead body. Mamata handed down the

water and the bricks. By the time we finished it had

dawned. After that at about 5.30/6 Alok left for his own

home, while going Alok said "you have to come again at

noon-time." Again at noon time I came to his house. He

then told me to sign in a paper. After signing that I went

to my house. > days after that I met Alok at his place.

He said, "I cannot give you any money now". I will see

it after some time. I could not sleep well after returning

home. I used to move in fear I stayed outside from my

house for some days. On the last 07.03.1994 (Eng)

police arrested me from my house."

T. Uddini (PW-43) was the Magistrate, before whom the purported

confession was made by Mrinal Dutta. He had issued a certificate as is

required under Section 164 of the Code of Criminal Procedure. He testified

that he had satisfied himself that confession made by Mrinal Dutta was

voluntary.

Re: Circumstance No. 16 :

Subhas Mazumdar (PW-11) and Nripen Chandra Das (PW-12) are

witnesses to Aloke Nath's entering into an agreement of tenancy and shifting

to Premises at JF-6/1, Aswini Nagar, Bidhan Pally, Baguihati and recovery

of goods. Atanu Banerjee, Sub Inspector of Police (PW-48), also testified as

regards recovery of goods from the said premises.

FINDINGS :

We may now consider the evidences available on records for

analyzing the reasonings of the courts below vis-`-vis involvement of each

of Appellants before us.

Aloke Nath :

Title in respect of the property in question is not in dispute. The fact

that Aloke Nath and his three brothers and one sister inherited the said

property from their mother also stands admitted. A faint attempt has been

made by the learned counsel appearing on behalf of Appellants to convey

the possibility of the brothers of Aloke Nath implicating him owing to the

property, but we can safely ignore the same.

The events began from November 1993. It was only Aloke Nath who

had asked Mrinal Dutta to sign some blank papers impersonating Biswanath.

He was paid a sum of Rs.5,000/- therefor. On the basis thereof, agreements

for sale were executed by and between Aloke Nath and Biswanath with

Nandlal Singh. Out of the agreed amount of consideration of Rs.2,60,000/-,

a sum of Rs.60,000/- was paid to him. A sum amounting to Rs.30,000/-,

Rs.20,000/- and Rs.10,000/- were paid on 11.11.1993, 12.12.1993 and

25.12.1993 respectively by Nandlal Singh to him. Although Aloke Nath

received a substantial amount, his greed did not end there. He, as noticed

hereinbefore, entered into another agreement for sale with Arunmoy Bose

(PW-8) who had also paid a sum of Rs.65,000/- by cheque. He must have

spent the entire amount or at least a substantial part of it.

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Biswanath was allegedly killed on 22.01.1994. The second floor of

the house which was in occupation of Biswanath was handed over to

Nandlal Singh on 23.01.1994 upon receipt of further advance. The first floor

was handed over on 14.02.1994, after Aloke Nath shifted to his new

residence. So far as Aloke Nath is concerned, having regard to the charges

framed, both the circumstantial evidence as also the extra judicial confession

made by him are relevant. His further statements leading to the recovery of

the dead body as also recovery of articles belonging to Biswanath are also

relevant. It has also been proved that he sold some of the articles belonging

to the deceased.

It is, however, disturbing to note that a confession has not been

brought on records in a manner contemplated by law. Law does not

envisage taking on record the entire confession by marking it an exhibit

incorporating both the admissible and inadmissible part thereof together.

We intend to point out that only that part of confession which is admissible

would be leading to the recovery of dead body and/or recovery of articles of

Biswanath, the purported confession proceeded to state even the mode and

manner in which Biswanath was allegedly killed. It should not have been

done. It may influence the mind of the court.

[See State of Maharashtra v. Damu S/o Gopinath Shinde & Others \026 (2000)

6 SCC 269 at p. 282 \026 para 35]

In Anter Singh v. State of Rajasthan [(2004) 10 SCC 657], it was

stated :

"11. The scope and ambit of Section 27 of the Evidence

Act were illuminatingly stated in Pulukuri Kottaya v.

Emperor in the following words, which have become

locus classicus: (AIR p. 70, para 10)

"It is fallacious to treat the fact discovered within

the section as equivalent to the object produced;

the fact discovered embraces the place from which

the object is produced and the knowledge of the

accused as to this, and the information given must

relate distinctly to this fact. Information as to past

user, or the past history, of the object produced is

not related to its discovery in the setting in which it

is discovered. Information supplied by a person in

custody that I will produce a knife concealed in the

roof of my house does not lead to the discovery of

a knife; knives were discovered many years ago. It

leads to the discovery of the fact that a knife is

concealed in the house of the informant to his

knowledge, and if the knife is proved to have been

used in the commission of the offence, the fact

discovered is very relevant. But if to the statement

the words be added with which I stabbed A these

words are inadmissible since they do not relate to

the discovery of the knife in the house of the

informant.""

[But see Dhananjoy Chatterjee @ Dhana v. State of West Bengal [(1994) 2

SCC 220 at p.234-235]

Therefore, we would take note of only that portion of the confession

which is admissible in evidence.

Apart from raising a contention that the extra judicial confession had

not been recorded in the exact words of the maker thereof, no serious

argument has been advanced with regard to its truthfulness or otherwise

thereof. It was an oral confession. Evidently, the two brothers of Appellant

Aloke Nath, namely, Samar Nath (PW-3) and Amar Nath (PW-4) as well as

his nephew Avijit Dutta (PW-6) became highly agitated after being misled

by Aloke Nath as he had made wrong statements as regards the whereabouts

of Bishwanath. They were also perturbed as the house property was sought

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to be sold without taking them into confidence.

In this context, it is important to revisit the events which took place on

and after 31.01.94. Before meeting further demands of Aloke Nath, Nandlal

on advice of his advocate Bikash Pal published an advertisement in Anand

Bazar Patrika on 31.01.94 inviting objections against the proposed

registration of the property.

In response to said advertisement, Aloke Nath's two elder brothers,

Amar Nath and Samar Nath with sister Anuradha raised objections. Aloke

Nath wanted to settle the matter with his co-owners. Presumably with that

end in view he thought to invite his brothers for discussion at the premises

No. 2C, Beadon Street on 06.03.1994.

The incident which had taken place on that day may be divided in two

parts: (i) the manner in which PWs 3, 4 and 6 visited the place whereabout

they were wrongly informed as regards Biswanath's new address; and (ii)

when they came back after a futile search and confronted Aloke Nath as to

why they were misled and again demanded information in regard thereto.

Identification of the dead body has not been seriously disputed before

us. Although in a given situation, the court might have scrutinized the issue

more closely, in view of the overwhelming evidence, it is not necessary for

us to do so. Identification of the skeleton as that of Biswanath by Aloke

Nath has not been disputed. It is accepted that he had an extra tooth is also

not in question. The height of the deceased and his age again has also not

been disputed.

The fact that a platform was newly constructed is amply borne out

from the materials on record. Nandlal Singh (PW-15), his brothers PW-3

and PW-4 and the brokers PW-17 and PW-18 stated, in no uncertain terms,

that not only despite having been asked Aloke Nath did not dismantle the

same, but in fact the same was re-enforced and painted with red colour.

Evidence as regards Aloke Nath's reply to the query regarding the

construction of 'bedi' that the same was meant for cooking purpose, is also

not in much dispute.

The fact that Aloke Nath had disposed of the belongings of the

deceased and other household materials is also not in much dispute. It is not

necessary for us to notice evidences of other witnesses who had testified

about his character and misconduct, namely, Biswanth Basak (PW-21),

Soumitra Nayak (PW-22), Subir Mullick (PW-25), Gobinda Sarkar (PWs-

26) and Bebashish Kar (PW-27). The circumstances enumerated by the

learned Trial Judge in the light of the evidences brought on record and the

extra judicial confession made by Aloke Nath, in our opinion, lead to only

one conclusion that the dead body recovered was that of Biswanath and it

was Aloke Nath who was responsible for his death.

He does not dispute that he was a party to the transactions with

Nandlal Singh and Arunmoy Bose. His many vices are amply borne out

from the materials. His absence from duty 11.01.1994 to 28.01.1994 has also

been proved by his colleagues PW-33, PW-34 and PW-35.

EXTRA JUDICIAL CONFESSION :

If the prosecution witnesses are to be believed that Aloke Nath made

an extra judicial confession and furthermore in view of the evidences on

record, it has to be held that the same was voluntary in nature. The same

having been spontaneous in the form of natural response to a stressful

stimulus made at the spur of the moment, we, for the reasons stated

hereinafter, do not see as to why the same should be discarded. He was

understandably reeling under a great mental strain. He might have killed his

own brother, with a view to satisfy his greed of money, but the

circumstances clearly demonstrate that he had been pushed to the wall. He

knew that his brothers and sister would definitely ask for an explanation as

to why without consulting them he tried to sell the house. A 'bedi' was

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constructed in his own bedroom which one day or the other, was bound to

be dismantled and the fact that a dead body buried therein would come out.

He had delivered possession of bedroom which was occupied by his brother

Biswanath, as also the premises which was in his occupation. He, therefore,

was not in a position to dismantle the bedi and remove the dead body

clandestinely. It is not that he was under any threat even by his brothers. He

was required to give a satisfactory explanation and he made a false statement

on the morning of 06.03.1994 as regards the address of Biswanath. He was

caught on the wrong foot. Events which took place immediately thereafter

also assume great significance. His confession was made before a large

number of persons. Each one of them would not have been able to

remember the words used by him in his confession. But then there was

absolutely no reason as to why the tenants of the premises would tell a lie.

PW-18 and PW-19, were tenants of the premises. It had not been suggested,

that they were in any way inimically disposed towards him.

Aloke Nath made extra judicial confession not only in presence of his

own elder brothers PW-3 and PW-4 but also in the presence of his nephew

(PW-6), the intending purchaser of the house (PW-15) as also the two

tenants of the premises PW-18 and PW-19. The evidences of these

witnesses are consistent and we do not see any reason as to why we should

disagree with findings of the courts below in this behalf.

Our attention has been drawn to a decision of this Court in Heramba

Brahma and Another v. State of Assam [AIR 1982 SC 1595], wherein this

Court opined :

"18. We are at a loss to understand how the High

Court accepted the evidence of this extra-judicial

confession without examining the credentials of PW 2

Bistiram; without ascertaining the words used; without

referring to the decision of this Court to be presently

mentioned wherein it is succinctly stated that extra-

judicial confession to afford a piece of reliable evidence

must pass the test of reproduction of exact words, the

reason or motive for confession and person selected in

whom confidence is reposed\005"

The said decision was rendered on its own facts. A purported

confession was made by the Appellant therein to another undertrial prisoner

in jail. They were not known to each other. There had been no previous

association between the witness and the other accused person. The court in

the said factual backdrop, opined that it was highly improbable that such

confession would be made. Heramba Brahma (supra) is not an authority for

the proposition that extra judicial confession must pass the test of

reproduction of the exact words. The tests laid therein are cumulative in

nature. What is necessary for the court is to arrive at the conclusion as to

whether such confession has been retracted or not. No suggestion had been

given to the witnesses that confession had not been made. No circumstances

had been brought out in cross-examination or by examination of independent

witnesses that the statements of witnesses proving such confession are not

correct.

In State of Rajasthan v. Raja Ram [(2003) 8 SCC 180], it was

held :

"19. An extra-judicial confession, if voluntary and

true and made in a fit state of mind, can be relied upon by

the court. The confession will have to be proved like any

other fact. The value of the evidence as to confession,

like any other evidence, depends upon the veracity of the

witness to whom it has been made. The value of the

evidence as to the confession depends on the reliability of

the witness who gives the evidence. It is not open to any

court to start with a presumption that extra-judicial

confession is a weak type of evidence. It would depend

on the nature of the circumstances, the time when the

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confession was made and the credibility of the witnesses

who speak to such a confession. Such a confession can be

relied upon and conviction can be founded thereon if the

evidence about the confession comes from the mouth of

witnesses who appear to be unbiased, not even remotely

inimical to the accused, and in respect of whom nothing

is brought out which may tend to indicate that he may

have a motive of attributing an untruthful statement to the

accused, the words spoken to by the witness are clear,

unambiguous and unmistakably convey that the accused

is the perpetrator of the crime and nothing is omitted by

the witness which may militate against it. After

subjecting the evidence of the witness to a rigorous test

on the touchstone of credibility, the extra-judicial

confession can be accepted and can be the basis of a

conviction if it passes the test of credibility.

It was further observed :

"20. If the evidence relating to extra-judicial

confession is found credible after being tested on the

touchstone of credibility and acceptability, it can solely

form the basis of conviction. The requirement of

corroboration as rightly submitted by the learned counsel

for the respondent-accused, is a matter of prudence and

not an invariable rule of law\005"

In the case of Gagan Kanojia and Anr. v. State of Punjab [Criminal

Appeal Nos. 561-62 and 563 of 2005, decided on 24.11.2006, this Court

opined :

"Extra-judicial confession, as is well-known, can form

the basis of a conviction. By way of abundant caution,

however, the court may look for some corroboration.

Extra-judicial confession cannot ipso facto be termed to

be tainted. An extra-judicial confession, if made

voluntarily and proved can be relied upon by the courts."

In Nazir Khan & Others v. State of Delhi [(2003) 8 SCC 461], this

Court held :

"\005A free and voluntary confession is deserving of

the highest credit, because it is presumed to flow from

the highest sense of guilty\005"

[See also Ram Khilari v. State of Rajasthan (1999) 9 SCC 89; and Namala

Subba Rao v. State of A.P. 2006 (10) SCALE 253].

It will also be relevant to consider State of Rajasthan v. Kashi Ram

[2006 (11) SCALE 440], wherein this court observed :

"There was nothing to show that he had reasons to confide in

them. The evidence appeared to be unnatural and unbelievable.

The High Court observed that evidence of extra-judicial

confession is a weak piece of evidence and though it is possible

to base a conviction on the basis of an extra- judicial

confession, the confessional evidence must be proved like any

other fact and the value thereof depended upon the veracity of

the witnesses to whom it was made."

Recently, this Court held in the case of Kulwinder Singh v. State of

Punjab [Criminal Appeal No. 675 of 2006], decided on 05.12.2006, this

Court held :

"the evidentiary value of an extra-judicial confession must be

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judged in the fact situation obtaining in each case. It would

depend not only on the nature of the circumstances but also the

time when the confession had been made and the credibility of

the witness who testifies thereto."

In his confession Aloke Nath takes the entire blame on himself. We

are not persuaded to hold that the courts below erred in opining that extra

judicial confession of Aloke Nath is in any way doubtful.

On the aforementioned evidence, the involvement of Aloke Nath, in

our opinion, is proved beyond any shadow of doubt.

We, therefore, hold that he has rightly been convicted of charges

leveled against him.

OTHER APPELLANTS :

Circumstantial Evidence :

We have analyzed the evidences adduced by the prosecution to

establish sixteen purported circumstances which had been relied upon by the

prosecution in order to bring home the guilt of the other Appellants herein.

Circumstances Nos. 14 and 15 enumerated by the learned Trial Judge

directly relate to the manner in which Biswanath was allegedly murdered.

We will hereafter proceed on the basis that Circumstance No. 1 to 13

had also been proved against them also. The question which would,

however, arise is as to whether the circumstances leading to establishment

of the guilt of the murder of Biswanath can be said to have been proved by

reason of the purported circumstantial evidence as also the retracted

confession of Mrinal Dutta and extra judicial confession of Aloke Nath. So

far as extra judicial confession of Aloke Nath is concerned, he implicated

only himself and did not implicate any other person in the conspiracy.

Circumstances nos. 1 to 13 are considered to be part of the same

transactions but Circumstances nos. 14 to 16 relate to distinct and different

charges. Appellants other than Aloke Nath, had not been seen by anybody

else immediately before or after the alleged occurrence. In fact there is no

eye-witness to the alleged occurrence. The neighbours were also not

examined to show that any untoward incident had taken place. There is

furthermore no evidence on record to show that any of Appellants had even

taken part in concealment of the dead body. The prosecution did not

examine any witness to establish the case as to how the other Appellants had

helped Aloke Nath in procuring bricks and cement or whether any other

person had helped him in concealment of the dead body.

As Aloke Nath had taken the entire blame on himself and did not

speak anything in regard to involvement of the other appellants, there is no

evidence in regard to the meeting of mind with reference to the plot of

murder. Aloke Nath evidently was in a desperate situation. He required

money. Others did not. Motive on the part of other Appellants is not

explicit. Therefore, others cannot be treated to be his accomplice. Even the

statements made by him, leading to recovery of the dead body or other

articles belonging to the deceased, do not implicate the other Appellants in

any manner whatsoever.

We may assume that other Appellants conspired with Aloke Nath for

selling the house. Mrinal Dutta evidently had signed the blank papers. He

purported to have executed some documents impersonating Biswanath. But

the question which must be posed and answered would be as to whether they

were parties to a bigger conspiracy of murder. Signing of certain

documents, impersonation of Biswanath by Mrinal Dutta or the other

Appellants' signing the said documents as witnesses, per se would not lead

to the conclusion that at any point of time they had agreed with Aloke Nath

that Biswanath should be eliminated.

There is no eye-witness to the occurrence. Nobody has noticed

any suspicious conduct on part of the Appellants indicating their role in

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committing murder or disposing the dead body. While dealing with a case

of grave nature like the present one, there is always a danger that conjectures

and suspicion may take the place of legal truth. This court has laid down

guidelines from time to time in regard to a finding of guilt solely on the basis

of circumstantial evidence in a number of cases. The process started with

Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh

[AIR 1952 SC 343] wherein the law was laid down in the following terms :

"It is well to remember that in cases where the evidence

is of a circumstantial nature, the circumstances from

which the conclusion of guilt is to be drawn should in the

first instance be fully established, and all the facts so

established should be consistent only with the hypothesis

of the guilt of the accused. Again, the circumstances

should be of a conclusive nature and tendency and they

should be such as to exclude every hypothesis but the one

proposed to be proved. In other words, there must be a

chain of evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with the

innocence of the accused and it must be such as to show

that within all human probability the act must have been

done by the accused. In spite of the forceful arguments

addressed to us by the learned Advocate-General on

behalf of the State we have not been able to discover any

such evidence either intrinsic within Exhibit P-3-A or

outside and we are constrained to observe that the courts

below have just fallen into the error against which

warning was uttered by Baron Alderson in the above

mentioned case."

Yet again in Sharad Birdhichand Sarda v. State of Maharashtra [AIR

1984 SC 1622 = (1984) 4 SCC 116], this Court laid down the law in the

following terms :

"153. A close analysis of this decision would show that

the following conditions must be fulfilled before a case

against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of

guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned "must or should" and not "may

be" established. There is not only a grammatical but a

legal distinction between "may be proved" and "must be

or should be proved" as was held by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra where the

observations were made: [SCC para 19, p. 807: SCC

(Cri) p. 1047]

"Certainly, it is a primary principle that the

accused must be and not merely may be guilty

before a court can convict and the mental distance

between 'may be' and 'must be' is long and

divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only

with the hypothesis of the guilt of the accused, that is to

say, they should not be explainable on any other

hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature

and tendency,

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(4) they should exclude every possible hypothesis

except the one to be proved, and

(5) there must be a chain of evidence so complete as

not to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have been

done by the accused."

It was further observed :

"179. We can fully understand that though the case

superficially viewed bears an ugly look so as to prima

facie shock the conscience of any court yet suspicion,

however great it may be, cannot take the place of legal

proof. A moral conviction however strong or genuine

cannot amount to a legal conviction supportable in law.

180. It must be recalled that the well established rule

of criminal justice is that "fouler the crime higher the

proof". In the instant case, the life and liberty of a subject

was at stake. As the accused was given a capital

sentence, a very careful, cautious and meticulous

approach was necessary to be made."

The murder might have been committed in a very cruel and revolting

manner but that may itself be a reason for scrutinizing the evidence a bit

more closely.

In Kashmira Singh v. State of M.P. [AIR 1952 SC 159], it was

observed :

"2. The murder was a particularly cruel and revolting

one and for that reason it will be necessary to examine

the evidence with more than ordinary care lest the

shocking nature of the crime induce an instinctive

reaction against a dispassionate judicial scrutiny of the

facts and law."

In Swaran Singh Rattan Singh v. State of Punjab [AIR 1957 SC 637],

this Court observed :

"Considered as a whole, the prosecution story may be

true; but between 'may be true' and 'must be true' there is

inevitably a long distance to travel and the whole of this

distance must be covered by legal, reliable and unimpeachable

evidence before an accused can be convicted."

In Mousam Singha Roy and Others v. State of West Bengal [(2003)

12 SCC 377], this Court held :

"27. Before we conclude, we must place on record the

fact that we are not unaware of the degree of agony and

frustration that may be caused to the society in general

and the families of the victims in particular, by the fact

that a heinous crime like this goes unpunished, but then

the law does not permit the courts to punish the accused

on the basis of moral conviction or on suspicion alone.

The burden of proof in a criminal trial never shifts, and it

is a`lways the burden of the prosecution to prove its case

beyond reasonable doubt on the basis of acceptable

evidence\005"

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It was furthermore observed :

"28. It is also a settled principle of criminal jurisprudence

that the more serious the offence, the stricter the degree

of proof, since a higher degree of assurance is required to

convict the accused."

CONFESSION GENERALLY:

Confession ordinarily is admissible in evidence. It is a relevant fact.

It can be acted upon. Confession may under certain circumstances and

subject to law laid down by the superior judiciary from time to time form the

basis for conviction. It is, however, trite that for the said purpose the court

has to satisfy itself in regard to: (i) voluntariness of the confession; (ii)

truthfulness of the confession; (iii) corroboration.

This Court in Shankaria v. State of Rajasthan [(1978) 3 SCC 435]

stated the law thus :

"22. This confession was retracted by the appellant when

he was examined at the trial Under Section 313 Cr. P.C.

on June 14, 1975. It is well settled that a confession, if

voluntarily and truthfully made, is an efficacious proof of

guilt. Therefore, when in a capital case the prosecution

demands a conviction of the accused, primarily on the

basis of his confession recorded Under Section 164 Cr.

P.C, the Court must apply a double test:

(1) Whether the confession was perfectly voluntary?

(2) If so, whether it is true and trustworthy ?

Satisfaction of the first test is a sine quo non for its

admissibility in evidence. If the confession appears to the

Court to have been caused by any inducement, threat or

promise such as is mentioned in Section 24, Evidence

Act, it must be excluded and rejected brevi manu. In such

a case, the question of proceeding further to apply the

second test does not arise. If the first test is satisfied, the

Court must before acting upon the confession reach the

finding that what is stated therein is true and reliable. For

judging the reliability of such a confession, or for that

matter of any substantive piece of evidence there is no

rigid canon of universal application. Even so, one broad

method which may be useful in most cases for evaluating

a confession, may be indicated. The Court should

carefully examine the confession and compare it with the

rest of the evidence, in the light of the surrounding

circumstances and probabilities of the case. If on such

examination and comparison, the confession appears to

be a probable catalogue of events and naturally fits in

with the rest of the evidence and the surrounding

circumstances, it may be taken to have satisfied the

second test."

[Also see Anil @ Raju Namdev Patil v. Administration of Daman and Diu,

Daman and Anr. - 2006 (12) SCALE5 16 ].

A detailed confession which would otherwise be within the special

knowledge of the accused may itself be not sufficient to raise a presumption

that confession is a truthful one. Main features of a confession are required

to be verified. If it is not done, no conviction can be based only on the sole

basis thereof.

In Muthuswami v. State of Madras [AIR 1954 SC 4], this Court

opined :

"8. The only reason the High Court give for accepting the

confession is because the learned Judges considered there

was intrinsic material to indicate its genuineness. But the

only feature the learned Judges specify is that it contains

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a wealth of detail which could not have been invented.

But the point overlooked is that none of this detail has

been tested. The confession is a long and rambling one

which could have been invented by an agile mind or

pieced together after tutoring. What would have been

difficult is to have set out a true set of facts in that

manner. But unless the main features of the story are

shown to be true, it is, in our opinion, unsafe to regard

mere wealth of uncorroborated detail as a safeguard of

truth."

RETRACTED JUDICIAL CONFESSION :

We may notice that till the purported judicial confession of Mrinal

Dutta was recorded by PW-43, evidences collected during investigation

were only suggestive of the fact that some person(s) had executed

documents impersonating Biswanath. In fact the witnesses did not recognize

Mrinal Dutta to be impersonating Biswanath. It was expected of the

Investigating Authority to put Mrinal Dutta on test identification parade to

prove the charge of impersonation of Biswanath. Mrinal Dutta was arrested

along with other accused on 07.03.1994. An application for test

identification parade for Aloke Nath was filed on 09.03.1994. No such

prayer was made by the prosecution for Mrinal Dutta.

On 16.03.1994 he had been remanded to police custody. A prayer

was made by the Investigating Officer for further police custody before the

ACM on 16.03.1994. Consequently he had been remanded till 19.03.1994.

Before we examine the legal implications in regard to recording the

judicial confession, we may notice the following facts. He had been

produced before the Magistrate (PW-43) straightaway from police custody.

He was asked to be sent to judicial custody for self introspection. He,

however, was taken out from Presidency Jail at 10.30 A.M.. on 21.03.1994.

Admittedly, he had been produced before the Magistrate at 1.00 p.m. Albeit

a little later, a complaint was made by Mrinal Dutta, that before he had been

produced before the Magistrate he was taken to the Alipore Police Station

and tortured. It is true, as has been submitted by Mr. Ahmad, that although

he had named the Police Inspector who allegedly tortured him, as would

appear from his examination under Section 313 of the Code of Criminal

Procedure, but the said Police Inspector has not been cross-examined on the

said point, but the fact remains that the confession stood retracted and, thus,

we have no option but to consider the legal aspect thereof having regard to

the fact situation obtaining herein.

The court's scrutiny in regard to the acceptability of a judicial

confession would not stop only because there was a failure on the part of the

defence counsel to cross-examine the said witness, more so when the

offence is said to be a grave one.

Constitutional Postulates and Retracted confession :

Article 20(3) of the Constitution of India provides that no person

accused of any offence shall be compelled to be a witness against himself.

The right to remain silent is an extension of the rule of civil liberty enjoined

by our Constitution.

Considering the guarantee under Article 20 (3) and also humanizing

standards under Article 21 we need to tread cautiously while construing

retracted confession. Although such caution is subject to some exceptions

such as per se evidence of the motivating factors of retraction or retraction

based on extraneous circumstances.

In this regard it is important to address the scope and ambit of Article

20(3) i.e. at which stage of criminal process the safeguard becomes

operative. In Smt. Nandini Satpathy v. P.L. Dani and Another [AIR 1978

SC 1025], this Court stated the law thus :

"57. We hold that Section 161 enables the police to

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examine the accused during investigation. The

prohibitive sweep of Article 20(3) goes back to the stage

of police interrogation \027 not, as contended, commencing

in court only. In our judgment, the provisions of Article

20(3) and Section 161(1) substantially cover the same

area, so far as police investigations are concerned. The

ban on self-accusation and the right to silence, while one

investigation or trial is under way, goes beyond that case

and protects the accused in regard to other offences

pending or imminent, which may deter him from

voluntary disclosure of criminatory matter."

In this context, it will be useful to refer to the following passage from

the decision of this Court in State (N.C.T. of Delhi) v. Navjot Sandhu @

Afsan Guru [(2005)11SCC 600] :

"This Court rejected the contention advanced on behalf

of the State that the two provisions, namely, Article 20(3)

and Section 161, did not operate at the anterior stages

before the case came to Court and the incriminating

utterance of the accused, previously recorded, was

attempted to be introduced. Noting that the landmark

decision in Miranda v. Arizona [1966, 384 US 436] did

extend the embargo to police investigation also, the Court

observed that there was no warrant to truncate the

constitutional protection underlying Article 20(3). It was

held that even the investigation at the police level is

embraced by Article 20(3) and this is what precisely

Section 161 means."

[See also Directorate of Enforcement v. Deepak Mahajan and Another,

(1994)3 SCC 440], and Balkishan A. Devidayal v. State of Maharashtra,

(1980) 4 SCC 600].

To withdraw from what has been said previously needs to be

interpreted in the vein of right to remain silent as an extension of this civil

liberty. The quality or merit of confession, in no uncertain terms, is in

voluntary narration by the accused. At the same time we are equally in know

of the troubled times the judiciary is plagued with. The issue of evidentiary

standards is a very delicate one and has a great bearing on the outcome of

cases. But be it as it may, basic tenets of criminal law can not be lost sight

of. In similar vein the law on retracted confession must be judged in the

context of each case.

Legislative paradigm on retracted confession :

In this regard it is important to consider the retracted confession

within the legislative paradigm laid down under Sections 24 to 26 of the

Indian Evidence Act and Section 162(1) and Section 164 of the Code of

Criminal Procedure, 1973.

Also it will be in the fitness of the case to appraise the value of

retracted confession for the co-accused under section 30 of The Indian

Evidence Act a little later.

Sections 24 to 30 deal with confession. Section 24 speaks of the

effect of a confession made by an accused through inducement, threat or

promise proceeding from a 'person in authority'. Whereas section 25 and

section 26 deal with situations where such 'person in authority' is police. It

is an institutionalized presumption against confession extracted by police or

in police custody. In that frame of reference, Section 24 is the genus and

sections 25 and 26 are its species. In other words, section 25 and section 26

are simple corollaries flowing out of the axiomatic and generalized

proposition (confession caused by inducement where inducement proceeds

from a person in authority, is bad in law) contained in section 24. They are

directed towards assessing the value of a confession made to a police officer

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or in police custody.

The policy underlying behind Sections 25 and 26 is to make it a

substantive rule of law that confessions whenever and wherever made to the

police, or while in the custody of the police unless made in the immediate

presence of a magistrate, shall be presumed to have been obtained under the

circumstances mentioned in Section 24 and, therefore, inadmissible, except

so far as is provided by Section 27 of the Act.

Section 164, however, makes the confession before a Magistrate

admissible in evidence. The manner in which such confession is to be

recorded by the Magistrate is provided under Section 164 of the Code of

Criminal Procedure. The said provision, inter alia, seeks to protect an

accused from making a confession, which may include a confession before

a Magistrate, still as may be under influence, threat or promise from a

person in authority. It takes into its embrace the right of an accused flowing

from Article 20(3) of the Constitution of India as also Article 21 thereof.

Although, Section 164 provides for safeguards, the same cannot be said to

be exhaustive in nature. The Magistrate putting the questions to an accused

brought before him from police custody, should some time, in our opinion,

be more intrusive than what is required in law. [See Babubhai Udesinh

Parmar v. State of Gujarat \026 2006 (12) SCALE 385].

In a case, where confession is made in the presence of a Magistrate

conforming the requirements of Section 164, if it is retracted at a later stage,

the court in our opinion, should probe deeper into the matter. Despite

procedural safeguards contained in the said provision, in our opinion, the

learned Magistrate should satisfy himself that whether the confession was of

voluntary nature. It has to be appreciated that there can be times where

despite such procedural safeguards, confessions are made for unknown

reasons and in fact made out of fear of police.

Judicial confession must be recorded in strict compliance of the

provisions of Section 164 of the Code of Criminal Procedure. While doing

so, the court shall not go by the black letter of law as contained in the

aforementioned provision; but must make further probe so as to satisfy itself

that the confession is truly voluntary and had not been by reason of any

inducement, threat or torture.

The fact that the accused was produced from the police custody is

accepted. But it was considered in a routine manner. The learned

Magistrate in his evidence could not even state as to whether the appellants

had any injury on his person or whether there had been any tainted marks

therefor.

The courts while applying the law must give due regard to its past

experience. The past experience of the courts as also the decisions rendered

by the superior courts should be taken as a wholesome guide. We must

remind ourselves that despite the fact that procedural safeguards contained

in Section 164 of the Cr. P.C. may be satisfied, but the courts must look for

truthfulness and voluntariness thereof. It must, however, be remembered

that it may be retracted subsequently. The court must, thus, take adequate

precaution. Affirmative indication of external pressure will render the

retracted confession nugatory in effect. The court must play a proactive role

in unearthing objective evidence forming the backdrop of retraction and later

the examination of such evidence of retraction. However in cases where

none exists, the court must give the benefit of doubt to the accused. Where

there is no objective material available for verifying the conditions in which

the confession was retracted, the spirit of section 24 of the Evidence Act

(irrelevance of confession caused by inducement) may be extended to

retracted confession. An inverse presumption must be drawn from absence

of materials.

In a case of retracted confession, the courts while arriving at a finding

of guilt would not ordinarily rely solely thereupon and would look forward

for corroboration of material particulars. Such corroboration must not be

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referable in nature. Such corroboration must be independent and conclusive

in nature.

Evidentiary value of retracted confession :

A retracted confession of a co-accused cannot be relied upon for the

purpose of finding corroboration for the retracted confession of an accused.

It was so held in Bhuboni Sahu v. R. [AIR 1949 PC 257], stating :

"The court may take the confession into

consideration and thereby no doubt, makes its evidence

on which the court may act; but the section does not say

that the confession is to amount to proof. Clearly there

must be other evidence. The confession is only one

element in the consideration of all the facts proved in the

case; it can be put into the scale and weighed with the

other evidence."

[See Hari Charan Kurmi and Jogia Hajam v. State of Bihar \026 (1964) 6 SCR

623]

However, we are not unmindful of the fact that in this country,

retractions are as plentiful as confessions. In a case of retracted confession,

the courts should evidently be a little slow in accepting the confession,

although the accused may not be able to fully justify the reasons for his

retraction.

It is interesting to note that in R. v. Thompson, [1893, 2 QB 12, 18],

Cave, J. stated the law thus :

"I would add that for my part I always suspect these

confessions which are supposed to be the offspring of

penitence and remorse and which nevertheless are

repudiated by the prisoner at the trial. It is remarkable

that it is of very rare occurrence for evidence of a

confession to be given when the proof of the prisoner's

guilt is otherwise clear, and satisfactory, but when it is

not clear and satisfactory, the prisoner is not frequently

alleged to have been seized with a desire, born of

penitence and remorse, to supplement it with a

confession \026 a desire which vanishes as soon as he

appears in a court of justice."

Straight J, observed in R v. Babulal, 6 A 509, 542, 543

"An endless source of anxiety and difficulty to those who

have to see that justice is properly administered\005I have

said, and repeat now, it is incredible that the

extraordinarily large number of confessions, which come

before us in the criminal cases disposed of by this court,

either in appeal or revision, should have been voluntarily

and freely made in every instance as represented\005the

retraction follows almost invariably as a matter of

course"

[See Sarkar on Evidence, 15th Edn. \026 Volume 1 - page 466]

The value of a retracted confession is now well-known. The court

must be satisfied that the confession at the first instance is true and

voluntary. [See Subramania Goundan v. The State of Madras [AIR 1958

SC 66] and Pyare Lal Bhargava v. State of Rajasthan, [AIR 1963 SC 1094].

Caution and prudence in accepting a retracted confession is an

ordinary rule. [See Puran v. The State of Punjab -AIR 1953 SC 459].

Although if a retracted confession is found to be corroborative in material

particulars, it may be the basis of conviction. [Balbir Singh v. State of

Punjab - AIR 1957 SC 216].

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We may notice that in 1950's and 1960's corroborative evidence in

"material particulars" was the rule. [See Puran (supra), Balbir Singh (supra),

Nand Kumar and Others v. State of Rajasthan \026 1963 Crl. LJ 702]. A

distinctiveness was made in later years in favour of "general corroboration"

or "broad corroboration". [See for General Corroboration - State of

Maharashtra v. Bharat Chaganlal Raghani and Others [(2001) 9 SCC 1];

"General trend of Corroboration" - Jameel Ahmed and Another v. State of

Rajasthan \026 [(2003) 9 SCC 673]; and "Broad Corroboration" - Parmananda

Pegu v. State of Assam [AIR 2004 SC 4197]

Whatever be the terminology used, one rule is almost certain that no

judgment of conviction shall be passed on an uncorroborated retracted

confession. The court shall consider the materials on record objectively in

regard to the reasons for retraction. It must arrive at a finding that the

confession was truthful and voluntary. Merit of the confession being the

voluntariness and truthfulness, the same, in no circumstances, should be

compromised. We are not oblivious of some of the decisions of this Court

which proceeded on the basis that conviction of an accused on the basis of a

retracted confession is permissible but only if it is found that retraction made

by the accused was wholly on a false premise. [See Balbir Singh (supra)].

There cannot, however, be any doubt or dispute that although

retracted confession is admissible, the same should be looked with some

amount of suspicion - a stronger suspicion than that which is attached to

the confession of an approver who leads evidence to the court.

Why we should not rely on the confession :

Coming to the facts of this case, on 04.10.2002, the lawyer appearing

for Mrinal Dutta made a submission that an application had been filed

praying for calling of some records from the Presidency Jail. No order had

been passed thereupon. It was contended that he had been taken from Jail at

10.00 a.m.. The records were directed to be produced. However from the

order sheet dated 14.11.2002 it appears that the said records had not been

produced. On 17.01.2003 a prayer had again been made on behalf of Mrinal

Dutta that steps would be taken for production of the documents in terms of

order dated 04.10.2002. The learned Judge recorded :

"The order No.265 goes to show that the Court

passed order regarding production of Jail Register of

Presidency Jail dated 21.3.94. The report of the

Superintendent, Presidency Correctional Home dated

14.11.02 shows that the same was not available. It was

further stated in the said letter that if the said register is

available, the same will be sent to this Court at once.

As the said Register has not been produced, the

Court is duty bound to take presumption that the said

Register could not be traced out.

It should be stated here that the cease work was

withdrawn long ago and during this period, the defence

lawyer for accused Minal Dutta did not take any step to

compel the superintendent Presidency Correctional Home

to appear in person and to produce the document. As

today is fixed for D.W. and as no petition has been filed

the case is closed, considering the fact that the case is

pending for trial since 1994."

The court, with respect, misdirected itself. It had no such duty. It was

in fact the other way found .

It is not in dispute that Mrinal Dutta had retracted from his confession.

The value of the retracted confession was required to be considered on the

accusation of the accused that the confession was not voluntary. In his

application retracting from his confession, it was alleged :

"Respected Sir, my humble submission is that I am

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informing true facts of my case. I have been implicated

in the murder of Biswanath Dutta and the fraud

committed. I am not connected with these incidents and I

know nothing about these acts. Police came to my house

on 7.3.94 to apprehend my brother-in-law Gobinda Roy.

Gobinda was at my house on the said date. Police

apprehended and brought me and Gobinda Roy from my

house. Thereafter implicated me in that murder and

fraud. Then beat me up severely and told me to state

whatever they dictate and thereafter to accept the same.

Otherwise they would torture me and members of my

family continuously in various manners and would

implicate in other cases also. They told me if you follow

our dictates we would save you. They made me make a

confession as per their false statements before a

Respected Magistrate of Jorabagan Bankshall Court.

Out of the fear of Police torture I and members of

my family are on the brink of destruction. My humble

appeal to you to kindly take necessary action to save me

and members of my family from destruction."

It is expected in a situation of this nature that the court will issue a suo

motu direction to the authority to produce the records. There was

absolutely no reason as to why the records would not be produced by the

Presidency Jail's authorities for a period of two months. If the said records

had not been produced, in our opinion, it was obligatory on the part of the

court to issue a suo motu notice. The court was dealing with a serious

matter. More than one life hinged on that valuable material. If a public

authority does not produce a document despite being called upon to do so;

an adverse inference is to be drawn. Converse is not the law.

It is true that sufficient time was given (two days) to Mrinal Dutta to

confirm his willingness to confess and finalize the contents of the

confession. The reasons for which the confession had been retracted and the

subsequent events wherein the appellants intended to prove a certain state of

affairs, namely, although he was supposed to have been produced directly

from the jail to the concerned Magistrate but in fact he was taken out of jail

2 = hours before the time fixed therefor, could be a pointer to the fact as to

whether the confession was a voluntary one.

It may be true that an application for adducing evidence had been filed

by the Appellants in terms of Section 311 of the Code of Criminal

Procedure, but the said evidence, if adduced would have tilted the balance

one way or the other so as to enable the court to come to the conclusion as to

whether the purported judicial confession made by Mrinal Dutta satisfies the

tests laid down by this Court in a large number of decisions. There was no

reason for the court to draw an adverse inference that the records had been

destroyed. No such inference could be drawn in law either in terms of

Section 114 of the Indian Evidence Act or any other law. The period during

which such documents are preserved under the provisions of the jail manual

have not been referred to. No evidence had been brought on record to show

that the documents had in fact been destroyed. The least the jail authorities

could do was to produce the destruction register.

In the aforementioned backdrop, the court should give the benefit of

doubt to the accused instead of the prosecution. The learned Trial Judge, in

our opinion, should not have closed the case. He should have invoked his

jurisdiction under Section 311 of the Code of Criminal Procedure in the

interest of justice and instead of blaming the defence for non-examination of

the Superintendent of Presidency Jail, the court itself should have called

upon authorities to produce the document. The presumption raised by the

court in this behalf is wholly misconceived.

Effect of a retracted confession :

We are not suggesting that the confession was not proved, but the

question is what would be the effect of a retracted confession. It is now a

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well-settled principle of law that a retracted confession is a weak evidence.

The court while relying on such retracted confession must satisfy itself that

the same is truthful and trustworthy. Evidences brought on records by way

of judicial confession which stood retracted should be substantially

corroborated by other independent and cogent evidences, which would lend

adequate assurance to the court that it may seek to rely thereupon.

[See Paramananda Pegu (supra)]

In Navjot Sandhu @ Afsan Guru (supra), this Court observed :

"32. As to what should be the legal approach of the court

called upon to convict a person primarily in the light of

the confession or a retracted confession has been

succinctly summarised in Bharat v. State of U.P.

Hidayatullah, C.J., speaking for a three-Judge Bench

observed thus: (SCC p. 953, para 7)

"Confessions can be acted upon if the court is satisfied

that they are voluntary and that they are true. The

voluntary nature of the confession depends upon whether

there was any threat, inducement or promise and its truth

is judged in the context of the entire prosecution case.

The confession must fit into the proved facts and not run

counter to them. When the voluntary character of the

confession and its truth are accepted, it is safe to rely on

it. Indeed a confession, if it is voluntary and true and not

made under any inducement or threat or promise, is the

most patent piece of evidence against the maker.

Retracted confession, however, stands on a slightly

different footing. As the Privy Council once stated, in

India it is the rule to find a confession and to find it

retracted later. A court may take into account the

retracted confession, but it must look for the reasons for

the making of the confession as well as for its retraction,

and must weigh the two to determine whether the

retraction affects the voluntary nature of the confession

or not. If the court is satisfied that it was retracted

because of an afterthought or advice, the retraction may

not weigh with the court if the general facts proved in the

case and the tenor of the confession as made and the

circumstances of its making and withdrawal warrant its

user. All the same, the courts do not act upon the

retracted confession without finding assurance from

some other sources as to the guilt of the accused.

Therefore, it can be stated that a true confession made

voluntarily may be acted upon with slight evidence to

corroborate it, but a retracted confession requires the

general assurance that the retraction was an afterthought

and that the earlier statement was true\005"

[See also Puran (supra), Bharat v. State of UP (1971) 3 SCC 950, Kora

Ghasi v. State (1983) 2 SCC 251, Preetam v. State of MP (1996) 10 SCC

432, Bhagwan Singh v. State of MP (2003) 3 SCC 21].

Mr. Altaf Ahmad, relied upon a decision of this Court in Sidharth and

Others v. State of Bihar [(2005) 12 SCC 545] wherein having regard to the

extensive evidences produced by the prosecution, it was held that the same

lent corroboration to the confession made by the accused. In that case the

circumstances had been independent de'hors the confession. It was opined :

"16. The confession made by the appellant Arnit

Das is voluntary and is fully corroborated by the above

items of evidence. The Sessions Judge was perfectly

justified in relying on the confession made by the

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appellant Arnit Das."

Reliance has also been placed by Mr. Ahmad on State of Tamil Nadu

v. Kutty @ Lakshmi Narsimhan [(2001) 6 SCC 550]. Therein materials were

brought on records to lend assurance to the court about the truthfulness of

the confession made. There had been several independent circumstances

which had lent assurance thereto, although the same had been retracted.

APPRECIATION OF EVIDENCE :

In the instant case, it is an admitted position that on 19th March, 1994,

Mrinal Dutta was taken to the Magistrate (PW-43) straight from the Police

custody.

Even though the Magistrate had sent the accused to jail custody on

19th March so that he could further reflect on the matter, when he was

brought to the Magistrate again on 21.03.1994 he was, as subsequently

asserted by Mrinal Dutta, first taken to Alipore Police Station and was

threatended and tortured and was also tutored as to what he should tell the

Magistrate in his confession. PW-48 the I.O. was cross examined on this

point and suggestions were also given to him which he denied.

Mrinal Dutta in his retraction made from jail on 16.06.1994

emphatically stated that he was taken to Alipore police station before being

brought to the Magistrate on 21.03.1994. He maintained that stand in his

examination under Section 313 Cr.P.C. Strangely enough prosecution did

not make any attempt to disprove this allegation.

In this case, as we have noticed hereinbefore, there is no independent

evidence adduced on behalf of the prosecution to prove conspiracy with

regard to cheating and forgery of documents and impersonation. They had

been sought to be proved by the supplementary circumstantial evidences.

In this case, the courts below have failed to notice the legality of the

judicial confession. There did not exist any evidence against Mrinal Dutta.

The courts apparently considered the said confessions of Aloke Nath and

then started connecting links therefrom and again came back to the

confession for completing the chain. Confession must be considered so as to

buttress other evidence and not the vice-versa. In other words, in the instant

case, the courts started to consider the matter from the angle of confession

then picked up facts from the deposition of the witnesses and again came

back to the confession.

The evidences merely established to defraud the intending purchasers.

At that point of time, Aloke Nath thought it fit to do away with Biswanath,

as he was proved to be an obstruction in his attempt to dispose of the

property. The Appellants might or might not have joined hands with him,

but unless there exist sufficient and cogent reasons to link them with the

alleged crime committed by Aloke Nath, it may not be said that they are also

guilty thereof.

Effect of retracted confession of Mrinal Dutta on Appellants other than

Aloke Nath :

Furthermore, so far as the accusation against Babu Roy and Mamata

Dutta are concerned, the only evidence against them was the judicial

confession of Mrinal Dutta. The same was admissible against them only

under Section 30 of the Indian Evidence Act.

Section 30:

It is not in dispute that apart from general evidence in regard to

commission of forgery etc., only evidence of involvement of Mamata and

Babu Roy is the judicial confession made by Mrinal Dutta. The extra

judicial confession made by Aloke Nath before the prosecution witnesses, as

noticed hereinbefore, does not implicate these Appellants. Only in his

judicial confession, Mrinal Dutta has assigned roles to these accused persons

as having common intention to commit the offence of murder of Biswanath

with Aloke Nath.

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Judicial confession is admissible in evidence against the maker

thereof under Section 26 of the Indian Evidence Act; but against the co-

accused, Section 30 will be applicable.

Section 30 of the Indian Evidence Act reads thus :

"30. Consideration of proved confession affecting

person making it and others jointly under trial for same

offence. \026 When more persons than one are being tried

jointly for the same offence, and a confession made by

one of such persons affecting himself and some other of

such persons is proved, the Court may take into

consideration such confession as against such other

person as well as against the person who makes such

confession."

The expression 'the court may take into consideration such

confession' is significant. It signifies that such confession by the maker as

against the co-accused himself should be treated as a piece of corroborative

evidence. In absence of any substantive evidence, no judgment of conviction

can be recorded only on the basis of confession of a co-accused, be it extra

judicial confession or a judicial confession and least of all on the basis of

retracted confession.

What is furthermore required to be considered is that if a retracted

confession itself is weak evidence, the question of conviction of a co-

accused on the basis thereof would not arise.

The question has been considered in State of M.P. through CBI and

Others v. Paltan Mallah and Others [(2005) 3 SCC 169], Navjot Sandhu

(supra) and Sidharth (supra).

In Sidhartha (supra), this Court held :

"19. It is true that the confession made by a co-

accused shall not be the sole basis for a conviction. This

Court in Kashmira Singh v. State of M.P. held that the

confession of an accused person is not evidence in the

ordinary sense of the term as defined in Section 3. It

cannot be made the foundation of a conviction and can

only be used in support of other evidence. The proper

way is, first, to marshal the evidence against the accused

excluding the confession altogether from consideration

and see whether, if it is believed, a conviction could

safely be based on it. If it is capable of belief

independently of the confession, then of course it is not

necessary to call the confession in aid. But cases may

arise where the judge is not prepared to act on the other

evidence as it stands, even though, if believed, it would

be sufficient to sustain a conviction. In such an event the

judge may call in aid the confession and use it to lend

assurance to the other evidence and thus fortify himself

in believing what without the aid of the confession he

would not be prepared to accept."

In Ram Parkash v. The State of Punjab [1959 SCR 1219], it was

held :

"That a voluntary and true confession made by an

accused though it was subsequently retracted by him, can

be taken into consideration against a co-accused by

virtue of s. 30 of the Indian Evidence Act, but as a matter

of prudence and practice the court should not act upon it

to sustain a conviction of the co-accused without full and

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strong corroboration in material particulars both as to the

crime and as to his connection with that crime.

The amount of credibility to be attached to a

retracted confession would depend upon the

circumstances of each particular case."

It was further opined :

"On the evidence in the case the confession of P

was voluntary and true and was strongly corroborated in

material particulars both concerning the general story

told in the confession concerning the crime and the

appellant's connection with crime."

[See Navjot Sandhu alias Afsan Guru (supra) and Jaswant Gir v. State of

Punjab (2005) 12 SCC 438].

We, therefore, express our inability, with respect, to agree with this

part of the judgment of the learned judge.

DEATH SENTENCE :

Is this case an instance of 'rarest of rare cases' meriting imposition of

capital sentence is now the question? What are the parameters, are there

any ? Several factors are relevant. One of them being a long lapse of time

[See Paltan Mallah (supra)]

In Bachan Singh v. State of Punjab [(1980 2 SCC 684 = (AIR 1980

SCC 898], a Constitution Bench dealt with the validity of death sentence and

while doing so the rule of rarest of rare cases was laid down. It was

reiterated in Machhi Singh and Others v. State of Punjab [(1983) 3 SCC

470]. The illustrative circumstances which were laid down in the

aforementioned cases are :

1. When the murder is committed in an extremely brutal, grotesque,

diabolical, revolting, or dastardly manner so as to arouse intense and

extreme indignation of the community.

2. When the murder is committed for a motive which evinces total

depravity and meanness; e.g. murder by hired assassin for money or reward;

or cold-blooded murder for gains of a person vis-`-vis whom the murderer is

in a dominating position or in a position of trust; or murder is committed in

the course of betrayal of the motherland.

3. When murder of a member of a Scheduled Caste or minority

community, etc. is committed not for personal reasons but in circumstances

which arouse social wrath; or in cases of "bride-burning" or "dowry deaths"

or when murder is committed in order to remarry for the sake of extracting

dowry once again or to marry another woman on account of infatuation.

4. When the crime is enormous in proportion. For instance when

multiple murders, say of all or almost all the members of a family or a large

number of persons of a particular caste, community, or locality, are

committed.

5. When the victim of murder is an innocent child, or a helpless woman

or old or infirm person or a person vis-`-vis whom the murderer is in a

dominating position, or a public figure generally loved and respected by the

community.

We are, however, not oblivious of the fact that the court also should

not remain unmindful to protect the injured and with that view of the matter

recommend award of proper sentence having regard to the nature of offence.

[See Sevaka Perumal v. State of Tamil Nadu - AIR 1991 SC 1463]

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In Devender Pal Singh v. State of NCT of Delhi [AIR 2002 SC 1661]

the death sentence was upheld by a majority of 2:1 notwithstanding the

dissenting view holding the accused to be innocent.

[See also Dhananjoy Chatterjee @ Dhana v. State of West Bengal & Others

(2004) 9 SCC 759].

We may notice that in Saibanna v. State of Karnataka [JT 2005 (5) SC

564 = (2005) 4 SCC 165], this Court imposed death punishment in a case

where the accused committed a murder while undergoing life imprisonment.

Although we are not concerned with such a case, the view taken

therein is doubtful.

We may also notice that in Ram Anup Singh and Others v. State of

Bihar [(2002) 6 SCC 686] and Bachittar Singh and Another v. State of

Punjab [(2002) 8 SCC 125], this Court did not impose a death penalty

although the case involved murder of a brother by another brother.

It is not necessary for us to notice a large number of decisions which

are available in the reports, except a few recent decisions.

In Surendra Pal Shivbalakpal v. State of Gujarat [(2005) 3 SCC 127],

death sentence was not imposed in a case where the offence involved was

rape with murder of a girl, stating :

"13. The next question that arises for consideration is

whether this is a "rarest of rare case"; we do not think

that this is a "rarest of rare case" in which death penalty

should be imposed on the appellant. The appellant was

aged 36 years at the time of the occurrence and there is

no evidence that the appellant had been involved in any

other criminal case previously and the appellant was a

migrant labourer from U.P. and was living in

impecunious circumstances and it cannot be said that he

would be a menace to society in future and no materials

are placed before us to draw such a conclusion. We do

not think that the death penalty was warranted in this

case. We confirm conviction of the appellant on all the

counts, but the sentence of death penalty imposed on him

for the offence under Section 302 IPC is commuted to

life imprisonment."

Therein it was also noticed that the accused was prone to do such

crime.

In State of Maharashtra v. Man Singh [(2005) 3 SCC 131], the court

refrained itself from awarding the capital punishment, although the offence

involved was rape with murder.

In Rama Subramanian v. State of Kerala [AIR 2006 SC 639], this

Court did not award a death penalty where a lady, together with her three

children, was killed, despite arriving at a finding that the evidence adduced

by the prosecution is very clear and convincing to prove the guilt of the

Appellant, stating :

"\005It is true that the crime committed by the appellant is

cruel and dastardly in nature and the appellant deserves

no mercy. However, it may be noted that it is not known

how and under what circumstances the incident had taken

place on 9.8.1999. the appellant was annoyed by the fact

that his services were terminated without being paid any

compensation despite serving his employer for quite a

long period. Taking the overall facts into consideration,

we do not find that this is one of the rarest of the rare

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cases where death sentence could be the only

punishment\005."

Apart from Sidharth (supra), our attention has also been drawn to a

judgment of this Court in State of Rajasthan v. Kheraj Ram (2003) 8 SCC

224] by Mr. Ahmad, wherein this Court, while awarding death punishment,

held :

"35. A convict hovers between life and death when

the question of gravity of the offence and award of

adequate sentence comes up for consideration. Mankind

has shifted from the state of nature towards a civilized

society and it is no longer the physical opinion of the

majority that takes away the liberty of a citizen by

convicting him and making him suffer a sentence of

imprisonment. Award of punishment following

conviction at a trial in a system wedded to the rule of law

is the outcome of cool deliberation in the courtroom after

adequate hearing is afforded to the parties, accusations

are brought against the accused, the prosecuted is given

an opportunity of meeting the accusations by establishing

his innocence. It is the outcome of cool deliberation and

the screening of the material by the informed man i.e. the

Judge that leads to determination of the lis.

36. The principle of proportion between crime and

punishment is a principle of just deserts that serves as the

foundation of every criminal sentence that is justifiable.

As a principle of criminal justice it is hardly less familiar

or less important than the principle that only the guilty

ought to be punished. Indeed, the requirement that

punishment need not be disproportionately great, which

is a corollary of just deserts, is dictated by the same

principle that does not allow punishment of the innocent,

for any punishment in excess of what is deserved for the

criminal conduct is punishment without guilt.

37. The criminal law adheres in general to the

principle of proportionality in prescribing liability

according to the culpability of each kind of criminal

conduct. It ordinarily allows some significant discretion

to the Judge in arriving at a sentence in each case,

presumably, to permit sentences that reflect more subtle

considerations of culpability that are raised by the special

facts of each case. Judges in essence affirm that

punishment ought always to fit the crime; yet in practice

sentences are determined largely by other considerations.

Sometimes it is the correctional needs of the perpetrator

that are offered to justify a sentence. Sometimes the

desirability of keeping him out of circulation, and

sometimes even the terrific results of his crime.

Inevitably, these considerations cause a departure from

just deserts as the basis of punishment and create cases of

apparent injustice that are serious and widespread."

In that case, death penalty was imposed but our endeavour here is to

see that courts in the matter of sentencing act differently although the fact

situation may appear to be somewhat similar.

We would, however, notice that in State of U.P. v. Satish [(2005) 3

SCC 114], the same learned Judge took a similar view in a case where the

High Court reversed the judgment of conviction and imposition of death

sentence by the Trial Judge for commission of an offence of rape and murder

of a girl aged 6 years, saying the earlier view once again.

In Navjot Sandhu @ Afsan Guru (supra), nine persons including eight

security personnel and one gardener succumbed to the bullets of the

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terrorists and 16 persons including 13 security men received injuries as a

result of storming of the Parliament by 5 terrorists. This Court upholding

the decision of the High Court to award death penalty, observed :

"The very idea of attacking and overpowering a

sovereign democratic institution by using powerful arms

and explosives and imperiling the safety of a multitude of

peoples' representatives, constitutional functionaries and

officials of Government of India and engaging into a

combat with security forces is a terrorist act of gravest

severity. It is a classic example of rarest of rare case."

In Holiram Bordoloi v. State of Assam, [(2005) 3 SCC 793]

appellant along with 17 others was convicted for murdering 4 persons by

burning them alive in a hut. Death penalty was imposed on the appellant.

This Court embarked on a discussion as to the aggravating circumstances

and mitigating circumstances, observing:

"Pre-planned, calculated, cold-blooded murder has

always been regarded as one of an aggravated kind." A

"murder is "diabolically conceived and cruelly

executed", it would justify the imposition of the death

penalty on the murderer\005. In many cases, the extremely

cruel or beastly manner of the commission of murder is

itself a demonstrated index of the depraved character of

the perpetrator. That is why; it is not desirable to consider

the circumstances of the crime and the circumstances of

the criminal in two separate watertight compartments."

This Court also affirming the death penalty, held :

"Even when questioned under Section 235 (2) of

Criminal Procedure Code, the accused stated that he had

nothing to say on the point of sentence. The fact that the

appellant remained silent would show that he has no

repentance for the ghastly act he committed."

In Pratap Singh v. State of Jharkhand and Anr. [(2005) 3 SCC 551], a

Trade Union leader was shot dead by the appellant as a result of a labour

dispute. This Court observed that the incident leading to these appeals had

taken place as early as 1991. As there is a long lapse of time, the court did

not think that the sentence of death imposed by the Sessions Court is

justified in the circumstances.

In Amrit Singh v. State of Punjab [2006 (11) SCALE 309], this Court

while taking account of the available evidence observed that it was possible

for the death to have occurred because of excessive bleeding and not by

strangulation as the Trial Court and High Court held. This Court also noted

that there were no eye-witnesses that actually saw the commission of the

offence and it was only on the basis of circumstantial evidence, that he was

convicted. This Court noted that although the crime was brutal, it could not

be said it was the rarest of the rare case. This Court observed :

"\005He had no pre-meditation for commission of the

offence. The offence may look heinous, but under no

circumstances, it can be said to be a rarest of rare

cases."

Hence the sentence was commuted to one for life.

In Major Singh and Anr. v. State of Punjab (2006 (10) SCALE 354]

death Sentence was awarded to the appellant by the High Court. Appellant

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therein murdered the deceased on the suspicion that the deceased had

murdered his wife who happened to be the sister of the appellant. It was

observed :

"\005considering the fact that there was probably some

enmity due to suspicion about Sukhwinder Kaur's death

two years after her marriage to Kashmir Singh [deceased]

which could have a motive for the crime, we reduce the

sentence awarded to both the accused from death

sentence to life sentence."

However, we may also notice that recently two ladies have been

awarded death penalty where the accused were systematically killing

children in Renuka Bai @ Rinku @ Ratan & Anr. v. State of Maharashtra

[(2006) 7 SCC 442 : 2006 ( (8) SCALE 604], stating :

"24. The appellants have been awarded capital

punishment for committing these murders and their

sentence was confirmed by the High Court. Going by the

details of the case, we find no mitigating circumstances

in favour of the appellant, except for the fact that they are

women. Further, the nature of the crime and the

systematic way in which each child was kidnapped and

killed amply demonstrates the depravity of the mind of

the appellants. These appellants indulged in criminal

activities for a very long period and continued it till they

were caught by the police. They very cleverly executed

their plans of kidnapping the children and the moment

they were no longer useful, they killed them and threw

the dead body at some deserted place. The appellants had

been a menace to the society and the people in the

locality were completely horrified and they could not

send their children even to schools. The appellants had

not been committing these crimes under any compulsion

but they took it very casually and killed all these

children, least bothering about their lives or agony of

their parents.

25. We have carefully considered the whole aspects of

the case and are also alive to the new trends in the

sentencing system in criminology. We do not think that

these appellants are likely to be reformed\005"

[Emphasis supplied]

In Gurmeet Singh v. State of Uttar Pradesh [(2005) 12 SCC 107]

appellant and his companion Lakha Singh (who died during the course of

trial proceedings) committed the murder of thirteen members of his own

family. This Court observed :

"All the victims were closely related to the appellant and

they were killed in the most dastardly manner. Most of

the victims were sleeping when they were attacked. The

appellant did not spare even the small kids with whom he

had apparently no enmity. The appellant did not have

even a grain of mercy or human kindness in his heart.

Considering all these aspects, we do not think that this is

a fit case where the death penalty is to be commuted to

life imprisonment."

It is evident that different Benches had taken different views in the

matter.

We must remind ourselves that there has been a growing demand in

the international fora that death penalty should be abolished. [See Second

Optional Protocol to the International Covenants on Civil and Political

Rights and the Protocol to the American Constitution on Human Rights to

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abolish death penalty]. Pursuant to or in furtherance of the pressure

exhorted by various international NGOs, several countries have abolished

death penalty. The superior courts of several countries have been

considering the said demand keeping in view the international covenants,

conventions and protocol.

In 2002, the United States Supreme Court held in Atkins v. Virginia,

[536 U.S. 304 (2002)] that it is unconstitutional to execute defendants with

mental retardation. The U.S. Supreme Court ruled 6-3 that executions of

mentally retarded criminals are "cruel and unusual punishment," violating

the Eighth Amendment to the Constitution. The court held :

"We are not persuaded that the execution of mentally

retarded criminals will measurably advance the deterrent

or the retributive purpose of the death penalty."

We may furthermore notice that the Privy Council recently in Reyes

v. R [(2002) UKPC 11 : 12 BHRC 219], upon noticing the decision of the

Supreme Court in Mithu v. State of Punjab, [1983] 2 SCR 690, observed :

"In Mithu v State of Punjab [(1983) 2 SCR 690]

the Supreme Court of India considered a provision of the

Indian Criminal Code which required sentence of death

to be passed on a defendant convicted of a murder

committed while the offender was under sentence of

imprisonment for life. The court addressed its attention to

article 21 of the Indian constitution, which protects the

right to life. Certain observations made by Chandrachud

CJ, at pp. 704, 707 and 713 are relevant to the present

discussion:

"But, apart from that, a provision of law which

deprives the court of the use of its wise and

beneficent discretion in a matter of life and death,

without regard to the circumstances in which the

offence was committed and, therefore, without

regard to the gravity of the offence, cannot but be

regarded as harsh, unjust and unfair ... Thus, there

is no justification for prescribing a mandatory

sentence of death for the offence of murder

committed inside or outside the prison by a person

who is under the sentence of life imprisonment. A

standardized mandatory sentence, of that too in the

form of a sentence of death, fails to take into

account the facts and circumstances of each

particular case."

[See also Hughes, R v (Saint Lucia) [2002] UKPC 12]

In the case of Roper v. Simmons, [543 U.S. 551 (2005)], at age 17,

respondent planned and committed a capital murder. After he had turned 18,

he was sentenced to death. His direct appeal and subsequent petitions for

state and federal postconviction relief were rejected. The court held that the

Eighth and Fourteenth Amendments forbid imposition of the death penalty

on offenders who were under the age of 18 when their crimes were

committed.

The court observed that:

"The overwhelming weight of international opinion

against the juvenile death penalty is not controlling here,

but provides respected and significant confirmation for

the Court's determination that the penalty is

disproportionate punishment for offenders under 18. The

United States is the only country in the world that

continues to give official sanction to the juvenile penalty.

It does not lessen fidelity to the Constitution or pride in

its origins to acknowledge that the express affirmation of

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certain fundamental rights by other nations and peoples

underscores the centrality of those same rights within our

own heritage of freedom."

There are some precedents of this Court e.g. Sahdeo and Others etc.

v. State of U.P. [(2004) 10 SCC 682- Para 9] and Sheikh Ishaqe and Others

v. State of Bihar \026 (1995) 3 SCC 392], which are authorities for the

proposition that if the offence is proved by circumstantial evidence

ordinarily death penalty should not be awarded. We think, we should follow

the said precedents instead and, thus, in place of awarding the death penalty,

impose the sentence of rigorous imprisonment for life as against Aloke Nath.

Furthermore we do not find any special reason for awarding death penalty

which is imperative.

In Kishori v. State of Delhi [(1999) 1 SCC 148], this Court

observed :

"12. It is no doubt true that the high ideals of the

Constitution have to be borne in mind, but when normal

life breaks down and groups of people go berserk losing

balance of mind, the rationale that the ideals of the

Constitution should be upheld or followed, may not

appeal to them in such circumstances, nor can we expect

such loose heterogeneous group of persons like a mob to

be alive to such high ideals. Therefore, to import the

ideas of idealism to a mob in such a situation may not be

realistic. It is no doubt true that courts must be alive and

in tune with the notions prevalent in the society and

punishment imposed upon an accused must be

commensurate with the heinousness of the crime. We

have elaborated earlier in the course of our judgment as

to how mob psychology works and it is very difficult to

gauge or assess what the notions of society are in a given

situation. There may be one section of society which may

cry for a very deterrent sentence while another section of

society may exhort upon the court to be lenient in the

matter. To gauge such notions is to rely upon highly

slippery imponderables and, in this case, we cannot be

definite about the views of society."

[See also Balraj v. State of U.P. \026 (1994) 4 SCC 29; and Jashubha

Bharatsing Gohil and Others - (1994) 4 SCC 353]

Sentencing indisputably is a part of criminal jurisprudence. More

importantly, in death penalty references sentencing issues requires serious

deliberation. Cases of this nature warrant objective evaluation of indicia and

legal thresholds.

In Union of India (UOI) and Ors. v. Devendra Rai [(2006) 2 SCC

243] accused was awarded death sentence for having caused homicidal death

of two army personnel and for having caused grievous injuries with the

intent of causing murder of two others, in a court martial. The High Court

upheld death penalty awarded. This Court, however, noticed :

"8. What is culled put from the decisions noted

above is that while deciding the question as to whether

the extreme penalty of death sentence is to be awarded, a

balance sheet of aggravating and mitigating

circumstances has to be drawn up.

9. In the instant case, the High Court has not

attempted to do that exercise and has come to an abrupt

conclusion about the case being not covered by the rarest

of rare category. That is clearly contrary to the principles

set out by this Court in the decisions noted above. We

deem it appropriate to remit the matter to the High Court

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to consider the matter afresh and take the decision as to

the appropriate sentence. The exercise has only to be

limited to that aspect alone as the High Court itself has in

the impugned judgment found that the conviction was

well merited."

When a statute provides for death penalty, so long as the same is not

ultra vires, application thereof cannot be altogether eliminated. But keeping

in view the decision of the Constitution Bench of this Court, the jurisdiction

of this Court in this behalf is limited. Death penalty can be awarded only if

in the opinion of the court, the case answers the description of rarest of rare

cases. What would constitute a rarest of rare cases must be determined in

the fact situation obtaining in each case. We have also noticed hereinbefore

that different criteria have been adopted by different benches of this Court,

although the offences are similar in nature. Because the case involved

offences under the same provision, the same by itself may not be a ground to

lay down any uniform criteria for awarding death penalty or a lesser penalty

as several factors therefor are required to be taken into consideration. No

sentencing policy in clear cut terms has been evolved by the Supreme Court.

What should we do ?

Does fact of this case make out the case to be one of rarest of rare

cases? We are of the opinion that it does not. The manner of commission of

offence may be gruesome. Biswanath was killed while he was in deep

slumber, but the method applied cannot be said to be cruel. The reason for

commission of the murder is greed of money on the part of Aloke Nath

which evidently arose out the result of his bad habits. We have no doubt in

our mind that he was pushed back to such a situation where he thought that

he had no other option but to kill his brother. The prosecution has not

brought out any material to show that Aloke Nath had not been maintaining

good relation with Biswanath. There might have difference of opinion

between the brothers in regard to the question of sale of house, but we have

nothing before us to say one way or the other in this behalf. Aloke Nath was

in need of money; Biswanath, an employee of a bank and being a bachelor

probably did not require the same. He might have other idea e.g. he did not

want to loose his place of abode. Aloke Nath had many vices, whereas

Biswanath did not have any. But they had been living in the same premises

for a long time. Both of them have been looking after their parents. In fact,

only it was the other brothers, namely, Amar Nath and Samar Nath had filed

a suit against their mother as well as Aloke Nath and Biswanath,

apprehending that their mother would bequeath the property in their favour,

and, thus, excluding them from inheriting the same.

We in the facts and circumstances of this case are also of the opinion

that the prosecution having been failed to prove the case of conspiracy

against Appellant herein, the case cannot be said to be one constituting

rarest of rare cases.

CONCLUSION :

For the reasons aforementioned, Criminal Appeal No. 867-868 of

2005, as far as Shib Shankar Roy @ Babu Roy and Mamta Dutta are

concerned, and Crl. Appeal No. 875 of 2005 preferred by Mrinal Dutta, are

allowed, and the judgment of conviction and sentence passed against them is

set aside. They may forthwith be released unless wanted in connection with

any other case. Criminal Appeal No.867-68 of 2005, as far as Aloke Nath is

concerned, is allowed in part and to the extent that the death penalty

imposed upon him is commuted to imprisonment for life. Other part of the

sentences is also upheld.