TaxTMI 
TaxTMI 
2007 (1) TMI 646
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.... over for the night at Guwahati. Appellant No. 1 was a night chawkidar of the waiting room of the said Net Work Travels. He represented that they could stay there for the night and therefore should not have any apprehension in regard to their safety. Their luggage was carried by the appellant No. 1 to the waiting room. The waiting room had two openings. It was covered by grills. Only the front gate was open, which was kept under lock and key, the key whereof was with the appellant No. 1. 2. The family of P.W.23 went out for dinner and came back to the said waiting room. He and both his children slept. Anima Deb (P.W.22), mother of the deceased, however, kept on sitting. Appellant No. 1 insisted on her repeatedly that she should go to sleep stating that as the waiting room would be locked, there was nothing for her to worry about. As she had not been sleeping, the appellant No. 1, allegedly, scolded her to do so. At that time, a bus bearing No. AS-25-C-1476 arrived at the said bus stop. Putul Bora - Appellant No. 2 was the 'handyman' of the said bus. While the Manager, Driver and the Conductor slept in the said bus, he did not. He was seen talking with the appellant No. 1....
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....n. During the course of investigation, the appellant No. 1 made a confessional statement before the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 ('the Code' for short). He gave a vivid description as to how the offence was committed by him and the appellant No. 2. On completion of investigation, a charge-sheet was filed against the appellants. They were convicted by the learned Sessions Judge, Kamrup and sentenced to death. An appeal preferred by them, by reason of the impugned judgment, has been dismissed by the High Court. The appellants are, thus before us. At our request, Ms. Vibha Datta Makhija, learned Counsel assisted us as Amicus Curiae in the matter. 7. Evidently, there was no eye-witness to the occurrence in this case. Nobody had seen the appellants lifting the girl, committing rape and murdering her. The entire prosecution case is based on circumstantial evidences. The circumstances, which found favour with the learned Sessions Judge as also the High Court, are: As against Appellant No. 1: i) The confession of the appellant No. 1 recorded by Smt. Nirupama Rajkumari, Judicial Magistrate, 1st Class at Guwahati (P.W.8). ....
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....o him was recovered, which was having some white stains. vii) He made constant pressure on P.W.2-Shri Kapil Kumar Paul to allow him to leave Paltan Bazar bus stand with his vehicle. 8. Ms. Vibha Datta Makhija, learned Amicus Curiae, in support of the appellants would submit: a) There are many missing links in the chain which have not been appreciated by the courts below in their proper perspective. b) Seizure of the under garments of the appellants is not free from doubt as the seizure witnesses clearly stated that they had visited police station at different points of time and thus, they could not be witnesses to seizure; c) The under garments, which were purported to have seized, had not been sent for chemical examination and thus, inference drawn by the courts below that white stains were semen stains, had not been established. d) Although, urine and blood samples of the appellants were taken, the same having not been sent for chemical analysis, an adverse inference in this behalf should be drawn against the prosecution. e) In the vaginal swap obtained by the doctor, no semen was found. The Forensic Science Laboratory Repo....
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....mises of the waiting room but also other nearby places. The buses belonging to other travel agencies were also searched. A search was carried out even at the railway station. The bus bearing No. AS-25-C-1476, in which the appellant No. 2 was working as a 'handyman, left at about 6.30 a.m. for Jorhat. The dead body was detected at about 9 a.m. The Manager of the Net Work Travels himself lodged the First Information Report suspecting the appellant No. 1 as also the driver, conductor and the 'handyman of the bus bearing No. AS-25-C-1476, as having committed the offence. The said bus was intercepted at about 10 a.m. and they were brought to the police station. P.W.22-the mother of the victim saw the appellants herein talking to each other. According to her she was goaded to go to sleep; she was even threatened. 12. Appellant No. 2 did not have any injury on his face earlier. Shri Kamal Goswami, the Manager of the Net Work Travels, who had travelled with the appellant No. 2 in the same bus, in no uncertain terms stated that while he went to sleep, at about 2/2.30 p.m. he suddenly felt a touch on his leg and found the appellant No. 2 moving to the upper bunker of the said vehi....
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.... their conduct he suspected their involvement in the crime. This witness also categorically stated that lock and key of the waiting room would always be with the chawkidar. 16. We may now consider the manner in which the confessional statement made by the appellant No. 1 was recorded. He was admittedly brought to the Court of Smt. Nirupama Rajkumari, the Judicial Magistrate, 1st Class at Guwahati (P.W.8), for getting his statement recorded on 24.7.2002. The voluntariness and truthfulness of the confession is not in dispute. Appellant No. 1 was produced before P.W.8 in her official Chamber at about 4.45 p.m. He was warned that the confession made by him might be used in evidence against him. She recorded the confessional statement of the appellant No. 1 being satisfied as regards the voluntariness thereof. The said confessional statement reads as follows: I am the night watchman of the Paltan Bazar counter of Network travels. On 13/7/02 I was on duty at the counter. Around 10.30 that night a bus arrived from Dharmanagar. Some passengers : from that bus came and requested me to allow them to stay at the counter for the night. The group comprised a man, two women a girl of....
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....e Magistrate did explain me the above fact to me and consulted the same carefully about the result of such confession. Q.No. 43 : It is also in her evidence that you were put in the charge in the office peon in her chamber (office) at 1.30 PM you were produced and then again at 4.45 PM for recording your statement. Ans : Yes, I was produced before her. Q.No. 44 : It is also in her evidence that at your production again she again explained to you the import of confession and you expressed your willingness to give confessional statement. What is your say? Ans : Yes I, expressed my willingness to give confessional statement. I understand her all questions (sic) put to me. Q.No. 45 : It is also in her evidence that inspite of repeated caution you were sanguine to give a confessional statement about your guilt. What is your say? Ans : I was sanguine to given confessional statement because I was repenting to my misdeed that I did. Q.No. 46 : It is also in her evidence that you voluntarily gave confessional statement, what is your say? Ans. : Yes, I voluntarily gave my confessional statement because I committed the of....
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....ection 24. They are directed towards assessing the value of a confession made to a police officer 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 ....
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.... 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....
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....s : That is true. Q.33 : By ext.6 the police seized the underpants you were wearing which had white stains on it. Ext 6(1) is the signature of the witness. What is your statement? Ans : That is true. Q.34 : Witness No. 4 has stated that on the night of occurrence he was the Conductor of bus No. AS-106- 5996 and that you were on the campus. Is that true? Ans : That is true. Q.36 : Witness No. 5 has stated that he is the owner of bus No. AS-25-C-1476; that the manager informed him over telephone that a girl had gone missing from the waiting room of Network travels; that he then came and went to Paltan Bazar police station; and that the police seized your undergarments. Is that true? Ans : That is true. Q.42 : Witness No. 9 he stated that in his presence Paltan Bazar Police seized, by ext.6, your undergarments containing white stains. What is your statement? Ans : That is true. Q.84 : The following morning you and the driver and the conductor started from Jorhat by that bus, and the police seized the bus at Kahara with you all. Is that true? Ans : That is true. Q.96 : Did the police seiz....
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.... 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 1959CriLJ90 , 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 Section 30 of the Indian Evidence Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime. 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 also Navjot Sandhu (sup....
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....tore room of the Net Work Travels were within the enclosed premises. There was an office room of Air India. There were three buses, which were parked outside. Only because six other persons were there in the bus, suspicion cannot be pointed out to them. 30. It is settled that the conviction can be based solely on circumstantial evidence, but it should be tested by the touchstone of law relating thereto as laid down by this Court in Hanumant Govind Nargundkar v. State of M.P. 1953CriLJ129 . {See Sharad Birdhichand Sarda v. State of Maharashtra 1984CriLJ1738 .} 31. In Hodge's case 168 ER 1136, it was held: Alderson, B., told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, "not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person. He then pointed out to them the proneness of the human mind to look for and often slightly to distort the facts in order to establish such a proposition f....
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....ty of death need not be inflicted except in gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the "offender" also require to be taken into consideration along with the circumstances of the "crime". (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. (SCC p.489, para 38) In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to in....
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....h serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu 1991CriLJ1845 . 36. In Sahdeo and Ors. v. State of U.P. AIR2004SC3508 , this Court opined: As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons....
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....him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty. 38. Yet, recently in Amrit Singh v. State of Punjab 2007CriLJ298 , this Court, in a case where the death was not found to have been intended to be caused, was of the opinion that no case under Section 302 of the Indian Penal Code was made out stating: Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases.{See also Sheikh Ishaque and ....