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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.47-48 OF 2013

Ashok Debbarma @ Achak Debbarma .. Appellant

Versus

State of Tripura .. Respondent

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.We are, in this case, concerned with a tragic incident

in which a group of Armed Extremists at Jarulbachai

village in the night of 11.2.1997, set fire to twenty houses

belonging to a group of linguistic minority community of

Bengal settlers, in which 15 persons lost their lives, which

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included women and children and causing extensive

damage to their properties.

2.The Takarajala Police Station, West Tripura got

information about the incident at about 11.00 p.m. on

11.2.1997 from Jarullabachai DAR Camp stating that

extremists had set on fire a number of houses at

Jarulbachai village and that the people had been shot

dead and injured grievously. Information so received

was entered into the General Diary at the Takarajala

Police Station in the form of Entry No.292 dated

11.2.1997. PW18 (Officer-in-Charge) of Takarajala Police

Station visited the Jarullabachai DAR Camp, cordoned off

the area, and conducted search. Most of the houses of

the village were found gutted by fire. On the very night

of the occurrence, as many as 13 dead bodies were found

lying at various places and three persons were found

lying injured. A formal written information, as regards

the occurrence, was received by the investigating officer

from one Gauranga Biswas (PW2) from the place of

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occurrence. Based on the written information, which was

so received at the place of occurrence, Takarajala Police

Station Case No.12/97 under Sections

148/149/302/326/307/436 IPC read with Section 27(3) of

the Arms Act, 1959 was registered. Later, more number

of dead bodies were found and number of dead persons

increased to 15, so also the number of injured persons.

Dead bodies as well as injured persons were taken to GB

Hospital at about 4.00 p.m. on 12.2.1997. Inquests were

held on the dead bodies and post-mortem examinations

were also conducted. PW.18, the Investigating Officer,

seized vide seizure list (Ex.11), two empty cartridges and

some ashes from the place of occurrence. Looking at the

serious nature of the evidence, investigation was handed

over to the Criminal Investigation Department (CID) and

PW20 (a DSP) was entrusted with the investigation.

3.PW20, on completion of the investigation, filed a

charge-sheet under Sections 148/149/302/326/307/436

IPC read with Section 34 IPC and 27(3) of the Arms Act,

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1959 read with Section 34 IPC against 11 persons,

including (1) Rabi Deb Barma, (2) Gandhi Deb Barma, (3)

Mantu Deb Barma, (4) Sambhuram Deb Barma, (5)

Budhraj Deb Barma. Charge-sheet was also filed against

some other accused, who were found absconding,

namely, (1) Subha Deb Barma, (2) Sandhya Deb Barma,

(3) Samprai Deb Barma, (4) Falgoon Deb Barma, (5) Bijoy

Deb Barma, (6) Budh Deb Barma, (7) Mangal Deb Barma,

(8) Sankar Deb Barma, (9), Kaphur Deb Barma, (10)

Sandhyaram Deb Barma alias Phang and (11) Ashok Deb

Barma (i.e. the Appellant herein). Out of the 11 persons

named in the charge-sheet, chargers were framed

against five persons under Sections 326, 436 and 302

read with Section 34 IPC and also Section 27(3) of the

Arms Act, 1959 read with Section 34 IPC, which included

the Appellant herein. All the above-mentioned persons

pleaded not guilty and claimed to be tried.

4.The prosecution, in order to establish its case,

examined 20 witnesses. Two accused persons, namely,

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Gandhi Deb Barma and Ashok Deb Barma alias Ashok

Achak (i.e. the Appellant herein) were examined under

Section 313 CrPC and, in their examinations, they denied

to have committed the alleged offences. Due to want of

evidence, the trial Court acquitted three persons vide its

order dated 23.4.2005 under Section 232 CrPC and only

two accused persons, namely, Gandhi Deb Barma and the

Appellant herein were called upon in terms of Section 232

CrPC to enter on their defence and, accordingly, the

defence adduced evidence by examining two witnesses.

5.The Additional Sessions Judge, West Tripura,

Agartala, having found the Appellant and Gandhi Deb

Barma guilty of the offences under Sections 326, 436 and

302 read with Section 34 IPC and also Section 27(3) of

the Arms Act, 1959 read with Section 34 IPC, declared

both the accused guilty of the offences aforementioned

and convicted them accordingly vide judgment dated

7.11.2005, on which date Gandhi Deb Barma was absent

since he was absconding. Judgment was, therefore,

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pronounced by the Sessions Judge in the absence of the

co-accused in terms of Section 353(6) CrPC. The

Additional Sessions Judge then on 10.11.2005, after

hearing the prosecution as well as the accused on the

question of sentence, passed an order sentencing the

Appellant to death on his conviction under Sections

148/149/302/326/307/436 IPC read with Section 27(3) of

the Arms Act, 1959.

6.The Additional Sessions Judge in terms of provisions

contained in Section 366 (1) CrPC referred the matter to

the High Court for confirmation of death sentence

awarded to the Appellant, which was numbered as

Criminal Reference No.02/2005. The Appellant also

preferred Criminal Appeal (J) 94/2005. Both the Appeals

as well as the Reference were heard by the High Court.

The High Court vide its judgment and order dated

5.9.2012 set aside the conviction of the Appellant under

Section 27(3) of the Arms Act, 1959. However, the death

sentence under Section 302 IPC read with Section 34 IPC,

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in addition to the sentence passed for offence under

Sections 326 and 436 read with Section 34 IPC, was

sustained, against which these Appeals have been

preferred.

7.Shri T.R. Venkita Subramoniam, learned counsel

appearing for the Appellant, submitted that the

prosecution has miserably failed to establish beyond

reasonable doubt the involvement of the Appellant in the

incident in question. Learned counsel pointed out that

even though 20 witnesses were examined, only two

witnesses viz. PW10 and PW13 in their deposition in the

Court had mentioned the name of the Appellant, which is

nothing but an improvement of the prosecution case,

especially when the Appellant was not named in the FIR.

Learned counsel also pointed out that PW10 and PW13

had not mentioned the name of the Appellant in their

statements made to the Police under Section 161 CrPC.

Learned counsel placed reliance on the judgment of this

Court in Tahsildar Singh and another v. State of

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U.P. AIR 1959 SC 1012 and Shashidhar Purandhar

Hegde and another v. State of Karnataka (2004) 12

SCC 492 and submitted that the omission to mention the

name of the Appellant in the FIR as well as in the Section

161 statement was a significant omission which may

amount to contradiction and the evidence of those

witnesses should not have been relied upon for recording

conviction.

8.Learned counsel also pointed out that the

prosecution completely erred in not conducting the Test

Identification Parade. Consequently, no reliance could

have been placed on the statement of witnesses stating

that they had seen the Appellant participating in the

incident. Placing reliance on the judgment of this Court in

Dana Yadav alias Dahu and others v. State of

Bihar (2002) 7 SCC 295, learned counsel pointed out that

ordinarily if the accused is not named in the FIR, his

identification by the witnesses in Court should not be

relied upon. Learned counsel also submitted that the

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High Court has committed an error in taking note of the

fact that the Appellant was absconding immediately after

the incident. Such a presumption should not have been

drawn by the Court, especially when the question

regarding abscondance was not put on the Appellant in

the statement recorded while examining him under

Section 313 CrPC. Learned counsel placed reliance on

the judgment of this Court in Shamu Balu Chaugule

v. State of Maharashtra (1976) 1 SCC 438, S. Harnam

Singh v. State (Delhi Admn.) (1976) 2 SCC 819,

Ranvir Yadav v. State of Bihar (2009) 6 SCC 595 and

Hate Singh Bhagat Singh v. State of Madhya

Bharat AIR 1953 SC 468. Learned counsel submitted

that, in any view, this is not a case which falls in the

category of rarest of rare case warranting capital

punishment.

9.Learned counsel submitted that the appellant is a

tribal coming from lower strata of the society, totally

alienated from the main stream of the society and such

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extremist’s upsurge might have occurred due to neglect

and frustration. Further, it was pointed out that, seldom,

people like the appellant get effective legal assistance

and while applying the RR test, the question whether the

appellant had got proper legal assistance, should also be

examined. Learned counsel, after referring to few

judgments of the U.S. Supreme Court, submitted that the

Court, while considering the question of death sentence,

should also examine whether there is any “residual

doubt” over the guilt of the accused.

10.Shri Gopal Singh, learned counsel for the State,

highlighted the manner in which the entire operation was

executed by a mob consisting of 30 to 35 persons.

Learned counsel submitted that they mercilessly fired at

women and children and others with latest arms and

ammunitions by killing as many as 15 persons, leaving

large number of persons injured. Learned counsel

pointed out that they set ablaze various huts in which

poor and illiterate persons were living. Many of the

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persons who participated in the incident were known to

the locals and the prosecution has examined as many as

20 witnesses, of which the evidence tendered by PW10

and PW13 was very crucial so far as the involvement of

the Appellant is concerned. Learned counsel pointed out

that the Courts have rightly believed the evidence of the

above-mentioned witnesses and the mere fact that the

Appellant’s name did not figure in the initial complaint or

in the statement under Section 161 CrPC would not

absolve him from the guilt, since the involvement of the

appellant has been proved beyond reasonable doubt.

Learned counsel also submitted that there is no necessity

of conducting the Test Identification Parade since the

accused persons were known to the witnesses. Learned

counsel also submitted that all relevant incriminating

questions were put by the Court to the accused while he

was examined under Section 313 CrPC and the answers

given by the accused would be sufficient to hold him

guilty of the charges levelled against him. Learned

counsel also submitted that both the trial Court as well as

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the High Court have correctly appreciated the oral and

documentary evidence adduced and the Court rightly

awarded death sentence, which falls under the category

of rarest of rare case.

11.We may indicate that though the trial Court as well

as the High Court have found that both Gandhi Deb

Barma and the Appellant were guilty of the various

offences levied against them, we are in this case

concerned with the Appeal filed by Ashok Deb Barma,

who has also been awarded death sentence by the trial

Court, which was confirmed by the High Court. At the

outset, we may point out that the High Court is right in

holding that the Appellant is not guilty under Section

27(3) of the Arms Act, 1959, in view of the law declared

by this Court in State of Punjab v. Dalbir Singh (2012)

3 SCC 346, wherein this Court held that Section 27(3) of

the Arms Act is unconstitutional. The fact that such

dastardly acts referred to earlier were committed in the

Jarulbachai village in the night of 11.2.1997, is not

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disputed. The question that we are called upon to

decide is with regard to the complicity of the

accused/Appellant, who was found guilty by the trial

Court as well as by the High Court. The facts would

clearly indicate that, in this case, 15 persons were

brutally and mercilessly killed and the houses of villagers

with all household belongings and livestock were buried

to ashes. PW1, an injured person, had given a detailed

picture of what had happened on the fateful day and he

was not cross-examined by the defence. The evidence

of PW1 was also fully corroborated by PW2. PW18, the

officer-in-charge of Takarajala Police Station, West

Tripura, as already indicated, had visited the site since he

got information at the Jarullabachai DAR Camp. At about

4.00 a.m. the next day, he had received the complaint

from PW2, by the time, he had already started

investigation after getting information from Jarullabachai

DAR Camp and on his personal visit to the site. In other

words, the police machinery had already been set in

motion on the basis of the information PW18 had already

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got and, it was during the course of investigation, he had

received the complaint from PW2. Though the complaint

received from PW2 was treated as the First Information

Report, the fact remains that even before that PW18 had

started investigation. Consequently, written information

(Ex.1) received from PW2, at best, could be a statement

of PW2 made in writing to the police during the course of

investigation. Of course, it can be treated as a statement

of PW2 recorded under Section 161 Cr.P.C and the

contents thereof could be used not as the First

Information Report, but for the purpose of contradicting

PW2.

12.PW20, the DSP (CID), as already indicated, was later

entrusted with the investigation because of the

seriousness of the crime. PW20 visited the place of

occurrence and noticed that the entire hutments were

gutted by fire, 35 families were affected by fire, 15

persons had been killed and four seriously injured.

PW20, during investigation, received 15 post-mortem

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reports from Dr. Pijush Kanti Das of IGM Hospital (PW9),

who conducted the post-mortem on the dead bodies.

PW20 had also forwarded on 29.4.2011 one fire cartridge

case to ballistic expert for his opinion and, on 19.5.1997,

he received the expert opinion of the same date to the

effect that it was around 7.62 mm ammunition. PW20

has also deposed that the fire arm was AK47 rifle. PW20

has also asserted that the Appellant was a person who

was known to the locality and he remained as an

absconder from the day of the occurrence. The evidence

of PW20 as well as the evidence tendered by PW9 would

clearly indicate that the cartridge seized from the site

was found to be of 7.62 mm ammunition and the bullets

were fired from an automatic fire arm like SLR and, in the

instant case, the fire arm used was nothing but an AK 47

rifle.

13.Evidence of PWs6, 7 and 8, Medical Officers posted

in G.B. Hospital at Agartala, would indicate that many of

the persons, who had sustained gunshot injuries, were

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treated in the hospital by them and they had submitted

their reports which were also marked in evidence. The

fact that the fire arms were used in commission of the

crime was fully corroborated by the evidence of PW20

read with evidence of PWs 6 to 9.

14.We may now refer to the crucial evidence of some of

the witnesses who had stated the involvement of the

Appellant in the instant case. PW10 has clearly stated in

his deposition that the accused as well as Gandhi Deb

Barma (since absconding) were firing with fire arms, due

to which, his brother died on the spot with bullet injuries.

PW10 has further deposed that there were around 30-35

members in the group, who had, either set fire to the

huts or opened fire from their fire arms. PW10, in his

cross-examination, deposed that he had stated before the

police that he had seen Gandhi Deb Barma as well as the

Appellant opening the fires, which statement was not

effectively cross-examined. PW10’s version that he had

seen the Appellant firing from his fire arm remained

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wholly unshaken. PW10 asserted in his cross-

examination that he had stated before the police that his

brother died due to bullets fired by the Appellant. PW11

has also deposed that the extremists had killed 15

persons, injured large number of persons and 23 houses

were gutted in fire. PW11, of course, did not name the

appellant as such, but has fully corroborated the

evidence tendered by PW10. PW11’s evidence reinforces

the evidence of PW10 that the Appellant is one of those

persons who had attacked the villagers and set fire to the

houses and injured or killed large number of men, women

and children. PW14, a resident of the locality, has also

corroborated the evidence of PW11.

15. PW13 is one of the persons who got injured in the

incident, lost both his son and wife in the firing occurred

on the fateful day. PW13, it is reported, was examined by

the police on the night of the incident but, of course, he

did name the appellant then, consequently, the

appellant’s name did not figure in the FIR. PW13, in his

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evidence, deposed that his wife, Saraswati, aged around

30 years and his daughter, Tulshi aged about 5 years,

had died in the incident. PW13 deposed that the

miscreants had set fire to his house and when he wanted

to come out of his house, 10-12 miscreants with fire arms

fired at him and he sustained injuries. PW13 identified the

accused in the Court.

16. We have gone through the oral evidence of PW10

and PW13 and, in our view, the trial Court and the High

Court have rightly appreciated their evidence and the

involvement of the Appellant in the above incident,

including the fact that he had fired at various people,

which led to the killing of relatives of PW10 and PW13.

We are of the view that since the accused persons were

known to the witnesses and they were identified by face,

the fact that no Test Identification Parade was conducted

at the time of investigation, is of no consequence. The

primary object of the Test Identification Parade is to

enable the witnesses to identify the persons involved in

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the commission of offence(s) if the offenders are not

personally known to the witnesses. The whole object

behind the Test Identification Parade is really to find

whether or not the suspect is the real offender. In Kanta

Prashad v. Delhi Administration AIR 1958 SC 350, this

Court stated that the failure to hold the Test Identification

Parade does not make the evidence of identification at

the trial inadmissible. However, the weight to be

attached to such identification would be for the Court to

decide and it is prudent to hold the Test Identification

Parade with respect to witnesses, who did not know the

accused before the occurrence. Reference may also be

made to the judgment of this Court in Harbhajan Singh

v. State of Jammu & Kashmir (1975) 4 SCC 480,

Jadunath Singh and another v. State of UP (1970) 3

SCC 518 and George & others v. State of Kerala and

another (1998) 4 SCC 605.

17.Above-mentioned decisions would indicate that

while the evidence of identification of an accused at a

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trial is admissible as substantive piece of evidence, would

depend on the facts of a given case as to whether or not

such a piece of evidence can be relied upon as the sole

basis of conviction of an accused. In Malkhansingh v.

State of M.P. (2003) 5 SCC 746, this Court clarified that

the Test Identification Parade is not a substantive piece of

evidence and to hold the Test Identification Parade is not

even the rule of law, but a rule of prudence so that the

identification of the accused inside the Court room at the

trial, can be safely relied upon. We are of the view that if

the witnesses are trustworthy and reliable, the mere fact

that no Test Identification Parade was conducted, itself,

would not be a reason for discarding the evidence of

those witnesses. This Court in Dana Yadav alias Dahu

(supra) has examined the points on the law at great

length and held that the evidence of identification of an

accused in Court by a witness is substantive evidence,

whereas identification in Test Identification Parade is,

though a primary evidence, but not substantive one and

the same can be used only to corroborate the

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identification of the accused by witness in the Court. So

far as the present case is concerned, PW10 and PW13

have identified the accused in open Court which is the

substantive piece of evidence and such identification by

the eye-witnesses has not been shaken or contradicted.

The trial Court examined in detail the oral evidence

tendered by those witnesses, which was accepted by the

High Court and we find no error in the appreciation of the

evidence tendered by those witnesses.

18. The mere fact that the Appellant was not named in

the statement made before the police under Section 161

CrPC and, due to this omission, the evidence of PW10 and

PW13 tendered in the Court is unreliable, cannot be

sustained. Statements made to the police during

investigation were not substantive piece of evidence and

the statements recorded under Section 161 CrPC can be

used only for the purpose of contradiction and not for

corroboration. In our view, if the evidence tendered by

the witness in the witness box is creditworthy and

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reliable, that evidence cannot be rejected merely

because a particular statement made by the witness

before the Court does not find a place in the statement

recorded under Section 161 CrPC. Police officer recorded

statements of witnesses in an incident where 15 persons

lost their lives, 23 houses were set ablaze and large

number of persons were injured. PW10 lost his real

brother and PW13 lost his daughter as well as his wife

and in such a time of grief, they would not be in a normal

state of mind to recollect who were all the miscreants and

their names. The witnesses may be knowing the persons

by face, not their names. Therefore, the mere fact that

they had not named the accused persons in Section 161

statement, at that time, that would not be a reason for

discarding the oral evidence if their evidence is found to

be reliable and creditworthy.

19. Learned counsel appearing for the accused has

raised the question that incriminating questions were not

put to the accused while he was examined under Section

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313 CrPC. The object of Section 313 CrPC is to empower

the Court to examine the accused after evidence of the

prosecution has been taken so that the accused is given

an opportunity to explain the circumstances which may

tend to incriminate him. The object of questioning an

accused person by the Court is to give him an opportunity

of explaining the circumstances that appear against him

in the evidence. In the instant case, the accused was

examined in the Court on 23.4.2005 by the Additional

Sessions Judge, West Tripura, Agartala, which, inter alia,

reads as follows :-

Question : It transpires from the evidence of

PW No.10, 11 and 13 that they had

recognized you amongst the

extremists. Is it true?

Answer : False.

Question :It transpires from the evidence of

the above witnesses that Dulal,

Ajit, Saraswati and Hemender

sustained severe bullet injuries by

the firing of you and your

associates?

What do you get to say regarding

this?

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Answer : Yes

Question :It is evident from the evidence of

these witnesses and other

information that at that night

Sachindra Sarkar, Archana Garkar,

Dipak Sarkar, Gautam Sarkar,

Shashi Sarkar, Prosenjit Sarkar,

Saraswati Biswas, Tulsi Biswas,

Narayan Das, Mithu Das, Bitu Das,

Khelan Sarkar, Sujit Sarkar, Bipul

Sarkar and Chotan Sarkar were

killed by the bullets of fire arms

and fire.

What do you get to say regarding

this?

Answer : ………………. (Blank).

20. The second question put to the accused was that,

from the deposition of PW10, PW11, PW13, it had come

out in evidence that it was due to the firing of the

accused and his associates, Dulal, Ajit, Saraswati and

Hemender had sustained severe bullet injuries, to which

the answer given by the accused was “Yes”. In other

words, he has admitted the fact that, in the incident,

Dulal, Ajit, Saraswati and Hemender had sustained severe

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bullet injuries by the firing of the accused and his

associates. Further, for the question, that from the

evidence of those witnesses and other information, at

that night, Sachindra Sarkar, Archana Garkar, Dipak

Sarkar, Gautam Sarkar, etc. were killed by the bullets of

fire arms and fire, the accused kept silent.

21. We are of the view that, under Section 313

statement, if the accused admits that, from the evidence

of various witnesses, four persons sustained severe bullet

injuries by the firing by the accused and his associates,

that admission of guilt in Section 313 statement cannot

be brushed aside. This Court in State of Maharashtra

v. Sukhdev Singh and another (1992) 3 SCC 700 held

that since no oath is administered to the accused, the

statement made by the accused under Section 313 CrPC

will not be evidence stricto sensu and the accused, of

course, shall not render himself liable to punishment

merely on the basis of answers given while he was being

examined under Section 313 CrPC. But, Sub-section (4)

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says that the answers given by the accused in response

to his examination under Section 313 CrPC can be taken

into consideration in such an inquiry or trial. This Court

in Hate Singh Bhagat Singh (supra) held that the

answers given by the accused under Section 313

examination can be used for proving his guilt as much as

the evidence given by the prosecution witness. In Narain

Singh v. State of Punjab (1963) 3 SCR 678, this Court

held that when the accused confesses to the commission

of the offence with which he is charged, the Court may

rely upon the confession and proceed to convict him.

22. This Court in Mohan Singh v. Prem Singh and

another (2002) 10 SCC 236 held that the statement

made in defence by accused under Section 313 CrPC can

certainly be taken aid of to lend credence to the evidence

led by the prosecution, but only a part of such statement

under Section 313 CrPC cannot be made the sole basis of

his conviction. In this connection, reference may also be

made to the judgment of this Court in Devender Kumar

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Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and

Bishnu Prasad Sinha and another v. State of Assam

(2007) 11 SCC 467. The above-mentioned decisions

would indicate that the statement of the accused under

Section 313 CrPC for the admission of his guilt or

confession as such cannot be made the sole basis for

finding the accused guilty, the reason being he is not

making the statement on oath, but all the same the

confession or admission of guilt can be taken as a piece

of evidence since the same lends credence to the

evidence led by the prosecution.

23.We may, however, indicate that the answers given

by the accused while examining him under Section 313,

fully corroborate the evidence of PW10 and PW13 and

hence the offences levelled against the Appellant stand

proved and the trial Court and the High Court have rightly

found him guilty for the offences under Sections 326, 436

and 302 read with Section 34 IPC.

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24. We shall now consider whether this is one of the

rarest of rare case, as held by the trial Court and affirmed

by the High Court, so as to award death sentence to the

accused.

25. In this case, altogether 11 persons were charge-

sheeted for the offences under Sections 326, 436 and 302

read with Section 34 IPC and also Section 27(3) of the

Arms Act, 1959 read with Section 34 IPC, but charges

were framed only against 5 persons under Sections 326,

436 and 302 read with Section 34 IPC and also Section

27(3) of the Arms Act, 1959 read with Section 34 IPC.

For want of evidence, three accused persons Budhrai Deb

Barma, Mantu Deb Barma and Subhuram Deb Barma

were acquitted on 23.4.2005 under Section 232 CrPC and

only two accused persons, Appellant and Gandhi Deb

Barma were called upon in terms of Section 232 CrPC to

enter on their defence. Out of 11 accused, we are left

with only two accused persons who were found guilty, out

of whom Gandhi Deb Barma is now absconding, hence,

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we are concerned only with the Appellant. We will first

examine whether the appellant was solely responsible for

all the elements of crime.

ELEMENTS OF CRIME

26. Appellant alone could not have organized and

executed the entire crime. Eleven persons were

originally charge-sheeted out of 30-35 group of persons

who, according to the prosecution, armed with weapons

like AK47, Dao, Lathi, etc., had attacked the villagers,

fired at them and set ablaze their huts and belongings.

The High Court while affirming the death sentence, stated

as follows:

“The perpetrators of the crime, including the

present appellant, acted in most cruel and

inhuman manner and murders were

committed in extremely brutal, grotesque and

dastardly manner, which is revolting and

ought to be taken to have vigorously shaken

the collective conscience of the society. The

victims, all innocent, were helpless when they

were put to death or grievously injured or

when their houses and belongings were burnt

to ashes. The case at hand, therefore,

squarely falls in the category of ‘rarest of rare

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cases’, where death penalty could be the only

adequate sentence.”

The High Court, therefore, while confirming the death

sentence recognized the accused as one of the

“perpetrators of the crime”, not the sole, and then stated

that they all acted in most cruel and inhuman manner

and committed the offences. Offences were committed

by other so-called perpetrators of the crime as well, but

they could not be apprehended or charge-sheeted.

Appellant alone or the accused absconding, though found

guilty, are not solely responsible for all the elements of

the crime, but other perpetrators of the crime also, who

could not be apprehended. The Courts below put the

entire elements of crime on the accused and treated

those elements as aggravating circumstances so as to

award death sentence, which cannot be sustained.

REASONABLE DOUBT AND RESIDUAL DOUBT

27.An accused has a profound right not to be convicted

of an offence which is not established by the evidential

standard of proof “beyond reasonable doubt”. This Court

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in Krishnan and another v. State represented by

Inspector of Police (2003) 7 SCC 56, held that the

doubts would be called reasonable if they are free from a

zest for abstract speculation. Law cannot afford any

favourite other than truth and to constitute reasonable

doubt, it must be free from an overemotional response.

Doubts must be actual and substantial doubts as to the

guilt of the accused persons arising from the evidence, or

from the lack of it, as opposed to mere vague

apprehensions. A reasonable doubt is not an imaginary,

trivial or a merely possible doubt, but a fair doubt based

upon reason and common sense. It must grow out of the

evidence in the case. In Ramakant Rai v. Madan Rai

and others (2002)12 SCC 395, the above principle has

been reiterated.

28.In Commonwealth v. John W. Webster 5 Cush.

295, 320 (1850), Massachusetts Court, as early as in

1850, has explained the expression “reasonable doubt”

as follows:

Page 32 32

“Reasonable doubt ... is not a mere possible

doubt; because everything relating to human

affairs, and depending on moral evidence, is open

to some possible or imaginary doubt. It is that

state of the case which, after the entire

comparison and consideration of all the evidence,

leaves the minds of the jurors in that condition

that they cannot say they feel an abiding

conviction.”

In our criminal justice system, for recording guilt of

the accused, it is not necessary that the prosecution

should prove the case with absolute or mathematical

certainty, but only beyond reasonable doubt. Criminal

Courts, while examining whether any doubt is beyond

reasonable doubt, may carry in their mind, some

“residual doubt”, even though the Courts are convinced

of the accused persons’ guilt beyond reasonable doubt.

For instance, in the instant case, it was pointed out that,

according to the prosecution, 30-35 persons armed with

weapons such as fire arms, dao, lathi etc., set fire to the

houses of the villagers and opened fire which resulted in

the death of 15 persons, but only 11 persons were

charge-sheeted and, out of which, charges were framed

only against 5 accused persons. Even out of those 5

Page 33 33

persons, 3 were acquitted, leaving the appellant and

another, who is absconding. Court, in such

circumstances, could have entertained a “residual doubt”

as to whether the appellant alone had committed the

entire crime, which is a mitigating circumstance to be

taken note of by the court, at least when the court is

considering the question whether the case falls under the

rarest of rare category.

29.‘Residual doubt’ is a mitigating circumstance,

sometimes, used and urged before the Jury in the United

States and, generally, not found favour by the various

Courts in the United States. In Donald Gene Franklin v.

James A. Lynaugh, Director, Texas Department of

Corrections 487 US 164 (1988) : 101 L Ed 2d 155, while

dealing with the death sentence, held as follows:

“Petitioner also contends that the sentencing

procedures followed in his case prevented the

jury from considering, in mitigation of sentence,

any "residual doubts" it might have had about his

guilt. Petitioner uses the phrase "residual doubts"

to refer to doubts that may have lingered in the

minds of jurors who were convinced of his guilt

Page 34 34

beyond a reasonable doubt, but who were not

absolutely certain of his guilt. Brief for Petitioner

14. The plurality and dissent reject petitioner's

"residual doubt" claim because they conclude

that the special verdict questions did not prevent

the jury from giving mitigating effect to its

"residual doubt[s]" about petitioner's guilt. See

ante at 487 U. S. 175; post at 487 U. S. 189. This

conclusion is open to question, however. Although

the jury was permitted to consider evidence

presented at the guilt phase in the course of

answering the special verdict questions, the jury

was specifically instructed to decide whether the

evidence supported affirmative answers to the

special questions "beyond a reasonable doubt."

App. 15 (emphasis added). Because of this

instruction, the jury might not have thought that,

in sentencing petitioner, it was free to demand

proof of his guilt beyond all doubt.

30. In California v. Brown 479 U.S. 541 and other

cases, the US Courts took the view, “"Residual doubt" is

not a fact about the defendant or the circumstances of

the crime, but a lingering uncertainty about facts, a state

of mind that exists somewhere between "beyond a

reasonable doubt" and "absolute certainty." Petitioner's

"residual doubt" claim is that the States must permit

capital sentencing bodies to demand proof of guilt to "an

absolute certainty" before imposing the death sentence.

Page 35 35

Nothing in our cases mandates the imposition of this

heightened burden of proof at capital sentencing.”

31. We also, in this country, as already indicated, expect

the prosecution to prove its case beyond reasonable

doubt, but not with “absolute certainty”. But, in between

“reasonable doubt” and “absolute certainty”, a decision

maker’s mind may wander possibly, in a given case, he

may go for “absolute certainty” so as to award death

sentence, short of that he may go for “beyond reasonable

doubt”. Suffice it to say, so far as the present case is

concerned, we entertained a lingering doubt as to

whether the appellant alone could have executed the

crime single handedly, especially when the prosecution

itself says that it was the handiwork of a large group of

people. If that be so, in our view, the crime perpetrated

by a group of people in an extremely brutal, grotesque

and dastardly manner, could not have been thrown upon

the appellant alone without charge-sheeting other group

of persons numbering around 35. All element test as well

Page 36 36

as the residual doubt test, in a given case, may favour the

accused, as a mitigating factor.

COUNSEL’S INEFFECTIVENESS:

32.Can the counsel’s ineffectiveness in conducting a

criminal trial for the defence, if established, be a

mitigating circumstance favouring the accused, especially

to escape from the award of death sentence. Counsel for

the appellant, without causing any aspersion to the

defence counsel appeared for the accused, but to only

save the accused from the gallows, pointed out that the

records would indicate that the accused was not meted

out with effective legal assistance. Learned counsel

submitted that the defence counsel failed to cross

examine PW1 and few other witnesses. Further, it was

pointed out that the counsel also should not have cross

examined PW17, since he was not put to chief-

examination. Learned counsel submitted that appellant,

a tribal, coming from very poor circumstances, could not

have engaged a competent defence lawyer to conduct a

Page 37 37

case on his behalf. Placing reliance on the judgment of

the US Supreme Court in Charles E. Strickland,

Superintendent, Florida State Prison v. David Leroy

Washington 466 US 668 (1984), learned counsel pointed

out that, under Article 21 of our Constitution, it is a legal

right of the accused to have a fair trial, which the accused

was deprived of.

33.Right to get proper and competent assistance is the

facet of fair trial. This Court in Madhav Hayawadanrao

S. Hoskot v. State of Maharashtra (1978) 3 SCC 544,

State of Haryana v. Darshana Devi and Others

(1979) 2 SCC 236, Hussainara Khatoon and others

(IV) v. Home Secretary, State of Bihar, Patna (1980)

1 SCC 98 and Ranjan Dwivedi v. Union of India

(1983) 3 SCC 307, pointed out that if the accused is

unable to engage a counsel, owing to poverty or similar

circumstances, trial would be vitiated unless the State

offers free legal aid for his defence to engage a counsel,

to whose engagement, the accused does not object. It is

Page 38 38

a constitutional guarantee conferred on the accused

persons under Article 22(1) of the Constitution. Section

304 CrPC provides for legal assistance to the accused on

State expenditure. Apart from the statutory provisions

contained in Article 22(1) and Section 304 CrPC, in

Hussainara Khatoon case (supra), this Court has held

that this is a constitutional right of every accused person

who is unable to engage a lawyer and secure legal

services on account of reasons, such as poverty,

indigence or incommunicado situation.

34.The question raised, in this case, is with regard to

ineffective legal assistance which, according to the

counsel, caused prejudice to the accused and, hence, the

same may be treated as a mitigating circumstance while

awarding sentence. Few circumstances pointed out to

show ineffective legal assistance are as follows:

(1) Failure to cross-examine PW1, the injured first

informant which, according to the counsel, is a

strong circumstance of “ineffective legal assistance”.

Page 39 39

(2)The omission to point out the decision of this Court

in Dalbir Singh (supra), wherein this Court held that

Section 27(3) of the Arms Act was unconstitutional,

was a serious omission of “ineffective legal advice”,

at the trial stage, even though the High Court has

found the appellant not guilty under Section 27 of

the Arms Act, 1959.

(3)Ventured to cross examine PW17, who was not put

to chief-examination.

35.Right to get proper legal assistance plays a crucial

role in adversarial system, since access to counsel’s skill

and knowledge is necessary to accord the accused an

ample opportunity to meet the case of the prosecution. In

Charles E. Strickland case (supra), the US Court held

that a convicted defendant alleging ineffective assistance

of counsel must show not only that counsel was not

functioning as the counsel guaranteed by the Sixth

Amendment so as to provide reasonable effective

assistance, but also that counsel’s errors were so serious

Page 40 40

as to deprive the defendant of a fair trial. Court held that

the defiant convict should also show that because of a

reasonable probability, but for counsel’s unprofessional

errors, the results would have been different. The Court

also held as follows:

“Judicial scrutiny of counsel’s performance must

be highly deferential, and a fair assessment of

attorney performance requires that every effort

be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the

time. A court must indulge a strong

presumption that counsel’s conduct falls within

the wide range of reasonable professional

assistance. These standards require no special

amplification in order to define counsel’s duty to

investigate, the duty at issue in this case.”

36.The Court, in determining whether prejudice resulted

from a criminal defence counsel’s ineffectiveness, must

consider the totality of the evidence. When an accused

challenges a death sentence on the ground of

prejudicially ineffective representation of the counsel, the

question is whether there is a reasonable probability that,

absent the errors, the Court independently reweighs the

evidence, would have concluded that the balance of

Page 41 41

aggravating and mitigating circumstances did not warrant

the death sentence.

37.When we apply the above test to the facts of this

case, we are not prepared to say that the accused was

not given proper legal assistance by the counsel

appeared before the trial Court as well as before the High

Court. As already discussed in detail, there is clinching

evidence in this case of the involvement of the appellant.

The evidence tendered by the eye-witnesses is

trustworthy and reliable. True, PW17 should not have

been subjected to cross-examination without being put to

chief-examination. Section 138 of the Evidence Act

specifically states that witness shall be first examined-in-

chief, then (if the adverse party so desires) cross-

examined, then (if the party calling him so desires) re-

examined. Consequently, there is no scope under Section

138 of the Evidence Act to start with cross-examination of

a witness, who has not been examined-in-chief, an error

committed by the trial Court. In Sukhwant Singh v.

Page 42 42

State of Punjab (1995) 3 SCC 367, this Court held that

after amendment of CrPC, tendering of witness for cross

examination is not permissible. Under the old Code, such

tendering of witnesses was permissible, while the

committing Magistrate used to record the statement of

witnesses, which could be treated at the discretion of the

trial Judge as substantial evidence of the trial. In that

case, this Court further held as follows:

“Section 138 Evidence Act, envisages that a

witness would first be examined-in-chief and

then subjected to cross examination and for

seeking any clarification, the witness may be re-

examined by the prosecution. There is no

meaning in tendering a witness for cross

examination only. Tendering of a witness for

cross examination, as a matter of fact, amounts

to giving up of the witness by the prosecution

as it does not choose to examine him in chief.”

Later, in Tej Prakash v. State of Haryana (1996) 7

SCC 322, this Court, following its earlier judgment in

Sukhwant Singh (supra), held as follows:

“18.As far as Dr O.P. Poddar is concerned, he

was only tendered for cross-examination

without his being examined-in-chief. Though, Dr

O.P. Poddar was not examined-in-chief, this

Page 43 43

procedure of tendering a witness for cross-

examination is not warranted by law. This Court

in Sukhwant Singh v. State of Punjab (1995) 3

SCC 367 held that permitting the prosecution to

tender a witness for cross-examination only

would be wrong and “the effect of their being

tendered only for cross-examination amounts to

the failure of the prosecution to examine them

at the trial”. In the present case, however, non-

examination of Dr O.P. Poddar is not very

material because the post-mortem report

coupled with the testimonies of Dr K.C. Jain PW

1 and Dr J.L. Bhutani PW 9 were sufficient to

enable the courts to come to the conclusion

about the cause of death.”

38.Participation and involvement of the appellant, in the

instant crime, have been proved beyond reasonable

doubt. At the time of commission of the offence, he was

30 years of age, now 45. Facts would clearly indicate that

he is one of the members of group of extremist persons,

waging war against the linguistic group of people in the

State of Tripura. Persons like the appellant armed with

sophisticated weapons like AK 47, attacked unarmed and

defenceless persons, which included women and children.

Prosecution has stated that the minority community in the

State of Tripura is often faced with some extremists’

Page 44 44

attacks and no leniency be shown to such persons, at the

peril of innocent people residing in the State of Tripura.

39.We have laid down three tests – crime test, criminal

test and RR test, not the “balancing test”, while deciding

the proportionality of the sentence. To award death

sentence, crime test has to be fully satisfied and there

should be no mitigating circumstance favouring the

accused, over and above the RR test. The hallmark of a

sentencing policy, it is often said, that sufficiently guides

and attracts the Court is the presence of procedures that

require the Court to consider the circumstances of the

crime and the criminal before it recommends sentence.

40.Arbitrariness, discrimination and inconsistency often

loom large, when we analyze some of judicial

pronouncements awarding sentence. Of course, it is

extremely difficult to lay down clear cut guidelines or

standards to determine the appropriate sentence to be

awarded. Even the ardent critics only criticize, but have

no concrete solution as such for laying down a clear cut

Page 45 45

policy in sentencing. Only safeguard, statutorily and

judicially provided is to give special reasons, not merely

“reasons” before awarding the capital punishment In

Santosh Kumar Satisbhushan Bariyar v. State of

Maharashtra (2009) 6 SCC 498, this Court highlighted

the fact that the arbitrariness in sentencing under Section

302 may violate the idea of equal protection clause under

Article 14 and the right to life under Article 21 of the

Constitution. Many times, it may be remembered that

the ultimate sentence turns on the facts and

circumstances of each case. The requirement to follow

the three tests, including the necessity to state “special

reasons” to some extent allay the fears expressed in

Santosh Kumar Satisbhushan Bariyar case (supra).

41.We have already explained few circumstances which

favoured the accused in the instant case, to hold it as not

a rarest of rare case, which are that the appellant alone

could not have executed such a crime, which resulted in

the death of 15 persons and leaving so many injured and

Page 46 46

setting ablaze 23 houses, that is the entire elements of

the crime could not have been committed by the

appellant alone. Further, the appellant is a tribal, stated

to be a member of the extremist group raging war against

the minority settlers, apprehending perhaps they might

snatch away their livelihood and encroach upon their

properties, possibly such frustration and neglect might

have led them to take arms, thinking they are being

marginalized and ignored by the society. Viewed in that

perspective, we are of the view that this is not a rarest of

rare case for awarding death sentence. All the same,

considering the gravity of the crime and the factors like

extreme social indignation, crimes against innocent

villagers, who are a linguistic minority, which included

women and children, we feel it would be in the interest of

justice to apply the principles laid down in Swamy

Shradananada (2) v. State of Karnataka (2008) 13

SCC 767.

Page 47 47

42.Consequently, while altering the death sentence to

that of imprisonment for life, we are inclined to fix the

term of imprisonment as 20 years without remission, over

and above the period of sentence already undergone,

which, in our view, would meet the ends of justice.

Ordered accordingly.

43.The Appeals are, accordingly, disposed of.

…………………………J.

(K. S. Radhakrishnan)

.….……………………J.

(Vikramajit Sen)

New Delhi,

March 4, 2014.