REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1366 OF 2005
Rabindra Kumar Pal @ Dara Singh .... Appellant(s)
Versus
Republic of India .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 1259 OF 2007
CRIMINAL APPEAL NOS. 1357-1365 OF 2005
J U D G M E N T
P. Sathasivam, J.
1) These appeals relate to a sensational case of triple murder of an Australian Christian Missionary - Graham Stuart Staines and his two minor sons, namely, Philip Staines, aged about 10 years and Timothy Staines aged about 6 years.
2) Criminal Appeal No. 1366 of 2005 is filed by Rabindra Kumar Pal @ Dara Singh against the final judgment and order dated 19.05.2005 passed by the High Court of Orissa at Cuttack in Criminal Appeal No. 239 of 2003 whereby the High Court dismissed the appeal of the appellant upholding the conviction and commuting the death sentence passed by the trial Court into that of life imprisonment. Against the same judgment, Criminal Appeal No. 1259 of 2007 is filed by Mahendra Hembram challenging his life imprisonment awarded by the trial Court and confirmed by the High Court. Against the acquittal of rest of the accused by the High Court, the Central Bureau of Investigation (in short “the
3) The case of the prosecution is as under:
(a) Graham Stuart Staines, a Christian Missionary from Australia, was working among the tribal people especially lepers of the State of Orissa. His two minor sons, namely, Philip Staines and Timothy Staines were burnt to death along with their father in the midnight of 22.01.1999/23.01.1999. The deceased-Graham Staines was engaged in propagating and preaching Christianity in the tribal area of interior Orissa. Manoharpur is a remote tribal village under the Anandapur Police Station of the District Keonjhar of Orissa. Every year, soon after the Makar Sankranti, the said missionary used to come to the village to conduct the Jungle Camp. Accordingly, on 20.01.1999, the deceased-Staines, along with his two minor sons Philip and Timothy and several other persons came to the village Manoharpur. They conducted the camp for next two days by hosting a series of programmes.
(b) On 22.01.1999, the Missionary Team, as usual conducted different programmes in the village near the Church and retired for the day. Graham Staines and his two minor sons slept in their vehicle parked outside the Church. In the midnight, a mob of 60-70 people came to the spot and set fire to the vehicle in which the deceased persons were sleeping. The mob prevented the deceased to get themselves out of the vehicle as a result of which all the three persons got burnt in the vehicle. The local police was informed about the incident on the next day.
(c) Since the local police was not able to proceed with the investigation satisfactorily, on 23.04.1999, the same was handed over to the State Crime Branch. Even the Crime Branch failed to conduct the investigation, ultimately, the investigation was transferred to
(d) On 03.05.1999, the investigation was taken over by the
(e) The prosecution examined as many as 55 witnesses whereas in defence 25 witnesses were examined. Series of documents were exhibited by the prosecution. By a common judgment and order dated 15.09.2003 and 22.09.2003, Sessions Judge, Khurda convicted all the accused and sentenced them for offences punishable under various sections. The death sentence was passed against Dara Singh- appellant in Criminal Appeal No. 1366 of 2005 and others were awarded sentence of life imprisonment.
(f) The death reference and the appeals filed by the convicted persons were heard together by the High Court and were disposed of by common judgment dated 19.05.2005 concluding that the witnesses are not trustworthy and no credence should be given to their statements and confessional statements were procured by the investigating agency under threat and coercion. The High Court, by the impugned judgment, modified the death sentence awarded to Dara Singh into life imprisonment and confirmed the life imprisonment imposed on Mahendra Hembram and acquitted all the other accused persons. Questioning the conviction and sentence of life imprisonment, Dara Singh and Mahendra Hembram filed Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007 respectively and against the acquittal of rest of the accused,
4) Heard Mr. KTS Tulsi and Mr. Ratnakar Dash, learned senior counsel for the accused/appellants and Mr. Vivek K. Tankha, learned Addl. Solicitor General for the
5) Mr. K.T.S. Tulsi, learned senior counsel appearing for Rabindra Kumar Pal @ Dara Singh (A1) and other accused in the appeals against acquittal filed by the
(i) Confessions of various accused persons, particularly, Rabi Soren (A9), Mahadev Mahanta (A11) and Turam Ho (A12) under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) cannot be considered to be voluntary on account of the fact that all the co-accused persons were produced before the Magistrate from the police custody and were remanded back to police custody. Similarly, Dayanidhi Patra @ Daya (A14) was produced from the police custody for confession while Umakant Bhoi (A13) made his statement while on bail. Besides all confessions being exculpatory and made after conspiracy ceased to be operative and inadmissible.
(ii) Inasmuch as recording of confessions of various accused persons was done after the investigation was taken over by Jogendra Nayak (PW 55), I.O. of the
(iii) The statements of eye-witnesses are contradictory to each other on all material points.
(iv) There are several circumstances which are inconsistent with the fire started by arson from outside and several circumstances consistent with the fire emanating from inside of the vehicle and then spread to rest of the vehicle after fuel tank caught fire.
(v) This Court in cases of appeals against acquittal has held that when two views are possible, one in favour of the accused should be accepted.
6) Mr. Dash, learned senior counsel appearing for the accused Mahendra Hembram (A3) reiterating the above submissions of Mr. Tulsi also pinpointed deficiency in the prosecution case insofar as (A3) is concerned.
7) Mr. Vivek Tankha, learned Addl. Solicitor General, after taking us through oral and documentary evidence, extensively refuted all the contentions of the learned senior counsel for the accused and raised the following submissions:-
(i) The High Court committed an error in altering the death sentence into life imprisonment in favour of (A1) and acquitting all other accused except (A3). He pointed out that the appreciation of the evidence by the High Court is wholly perverse and it erroneously disregarded the testimony of twelve eye-witnesses.
(ii) The High Court failed to appreciate the fact that the three accused, namely, Mahendra Hembram (A3), Ojen @ Suresh Hansda (A7) and Renta Hembram (A10) belonging to the same village were known to the eye-witnesses and, therefore, there is no requirement to conduct Test Identification Parade (in short ‘TIP’).
(iii) The High Court erred in acquitting 11 accused persons on the sole ground that TIP was not conducted and, therefore, identification by the eye-witnesses was doubtful.
(iv) The evidence of identification in Court is substantive evidence and that of the identification in TIP is of corroborative value.
(v) The High Court committed a serious error in law in disregarding the confessional statements made under Section 164 of the Cr.P.C. as well as the extra-judicial confessions made by Dara Singh (A1) and Mahendra Hembram (A3).
(vi) The High Court wrongly held inculpatory confessional statements as exculpatory and on that ground rejected the same. The High Court failed to appreciate that in their confessional statements (A9), (A11), (A12), (A13) and (A14) have clearly admitted their plan for committing the crime.
(vii) The adverse observations against (PW 55) the Investigating Officer of
(viii) Inasmuch as it was Dara Singh (A1) who originated and organized the heinous act and also prevented the deceased persons from coming out of the burning vehicle, the High Court ought to have confirmed his death sentence.
(ix) The reasons given by the High Court in acquitting 11 persons are unacceptable and the judgment to that extent is liable to be set aside.
8) We have considered the rival submissions and perused all the oral and documentary evidence led by the prosecution and defence.
9) With the various materials in the form of oral and documentary evidence, reasoning of the trial Judge and the ultimate decision of the High Court, we have to find out whether the conviction and sentence of life imprisonment imposed on Dara Singh (A1) and Mahendra Hembram (A3) is sustainable and whether prosecution has proved its case even against the accused who were acquitted by the High Court. Eye witnesses
10) According to the learned senior counsel for the accused, the statements of eye-witnesses are contradictory to each other on all material points. It is his further claim that exaggerated and improved version of the incident makes it difficult to place implicit reliance on the statements of any of those witnesses. On the other hand, it is the claim of the prosecution that the statements of eye-witnesses are reliable and acceptable and it was rightly considered by the trial Court and erroneously rejected except insofar as against Dara Singh (A1) and Mahendra Hembram (A3) by the High Court. i) PW2, Basi Tudu, one of the prime eye-witness, identified in dock the previously known accused of her village Ojen Hansda. She was not examined by local police, however, examined by the
ii) The next eye-witness examined on the side of the prosecution is PW3, Paul Murmu. He admitted that he was converted to Christianity in the year 1997. He identified accused Dara Singh in dock. He was examined by the local police on 23.01.1999, by
iii) The next eye-witness examined by the prosecution is PW4, Rolia Soren. It was he who lodged FIR. He was examined by the local police on 23.01.1999, by the
iv) Singo Marandi (PW5) was examined as next eye-witness. Though he named accused Ojen Hansda, in his deposition stated that he belonged to his village and in the dock he could not identify him with certainty. His statement was not recorded by the local police but recorded by the
v) The next eye-witness examined by the prosecution is Nimai Hansda (PW10). He was examined by the local police on 23.01.1999, by the
vii) The next eye-witness examined was Mathai Marandi (PW15). He identified accused Uma Kant Bhoi (A 13) in the TIP. He also identified accused Dara Singh (A1), Dipu Das (A2), Ojen @ Suresh Hansda and Mahadev. Out of these accused, Ojen Hansda was previously known to him, belonging to the same street of his village. In his evidence, it is stated that he is native of Manoharpur village and the church (Place of occurrence) is located adjacent to his house. Deceased Graham Staines was well known to him as he used to visit his village for the last 15-16 years. He stated that Graham Staines last visited their village on 20.01.1999. He along with his two sons and other persons came there in two vehicles. He further stated that in the night of 22.01.1999, on hearing bursting sound, his wife woke him up. After coming out of the house, he found 40-50 persons gathered near the vehicles parked in front of the church and beating the vehicles by lathis. Those miscreants were holding lathis, axe, torches, bows and arrows. He heard cries raised by the minor sons of Graham Staines. He went near the vehicle, but 3 to 4 persons threatened him with lathis and, therefore, he retreated to his house. Thereafter, he went to the huts raised behind the church and called the persons staying there and went to the place of occurrence and found the vehicles set on fire. The miscreants put the straw inside the vehicle and set it on fire. They first set the empty vehicle on fire and thereafter the vehicle in which Graham Staines and his sons were sleeping. Both the vehicles caught fire and were burnt. The witness identified accused Dara Singh (A1), Dipu Das (A2), Ojen @ Suresh Hansda and Mahadev as the miscreants present at the scene of occurrence and taking part in the offence. The witness further stated that Ojen Hansda and Mahendra Hembram belonged to his village. He had identified accused Uma Kanta Bhoi in the TIP conducted at Anandpur Jail as one of the persons setting fire on the vehicle. He further stated that after the vehicles were burnt, the miscreants blew whistle thrice and raised slogan “Jai Bajarang Bali” and “Dara Singh Zindabad”. However, it is relevant to note that his omission to mention all important aspects in his evidence including names of the appellants and his previous statements recorded by three Investigating Officers creates a doubt about his veracity. viii) Joseph Marandi (PW23) was examined as another eyewitness to the occurrence. He belonged to village Manoharpur (Place of occurrence) and his house is located near the church. He identified accused Renta Hembram, Mahendra Hembram, Dara Singh and Rajat Kumar Dass @ Dipu. Out of these, two accused - Renta Hembram and Mahendra Hembram, were previously known to him as they belonged to his village. He was examined by the local police on 02.02.1999, by the
ix) Raghunath Dohari (PW36), one of the eye-witnesses, identified accused Dara Singh, Harish Chandra, Mahadev and Turam Ho. His statement was not recorded by local police and the
x) Another eye-witness PW39, Soleman Marandi identified accused Dara Singh, Rajat Kumar Dass, Surtha Naik, Harish Chandra, Ojen Hansda and Kartik Lohar. Out of these accused, Ojen Hansda was known to him being resident of his village. His statement was not recorded by the local police but recorded by the
xi) The last eye-witness examined on the side of the prosecution is PW43, Lablal Tudu. He identified accused Dara Singh, Turam Ho, Daya Patra and Rajat Kumar Das. His statement was not recorded by local police and by the
11) It is relevant to note that the incident took place in the midnight of 22.01.1999/23.01.1999. Prior to that, number of investigating officers had visited the village of occurrence. Statements of most of the witnesses were recorded by PW 55, an officer of the
12) In the same manner, showing photographs of the miscreants and identification for the first time in the trial Court without being corroborated by TIP held before a Magistrate or without any other material may not be helpful to the prosecution case. To put it clear, the evidence of witness given in the court as to the identification may be accepted only if he identified the same persons in a previously held TIP in jail. It is true that absence of TIP may not be fatal to the prosecution. In the case on hand, (A1) and (A3) were identified and also corroborated by the evidence of slogans given in his name and each one of the witnesses asserted the said aspect insofar as they are concerned. We have also adverted to the fact that none of these witnesses named the offenders in their statements except few recorded by IOs in the course of investigation. Though an explanation was offered that out of fear they did not name the offenders, the fact remains, on the next day of the incident, Executive Magistrate and top level police officers were camping the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable to look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier TIP. Though some of them were identified by the photographs except (A1) and (A3), no other corroborative material was shown by the prosecution.
13) Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. Learned Addl. Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of this Court in Manu Sharma (supra). It was argued in that case that PW 2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence. In para 254, this Court held: “Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.” It was further held: It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.
14) In Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau,
15) In Jana Yadav vs. State of Bihar, (2002) 7
16) Mr. Tulsi, learned senior counsel for the accused heavily commented on the statements of eye-witnesses which, according to him, are contradictory to each other on material points. He highlighted that exaggerated and improved version of the incident makes it difficult to place implicit reliance on the statements of any of these witnesses. He cited various instances in support of his claim.
a) As regards the number of persons who have allegedly attacked the vehicles, it was pointed out that PW 23 - Joseph Marandi (brother of PW 15)/Christian/15 years at the time of incident) has stated that 20-22 persons surrounded the vehicle. On the other hand, PW 39 - Soleman Marandi and PW 10 - Nimai Hansda deposed that 30/40 persons surrounded the vehicle. PW 15 - Mathai Marandi found 40/50 persons were beating with lathis. PW 43 - Lablal Tudu (son of PW 2) deposed that 50/60 persons were beating the vehicle whereas PW 2 - Basi Tudu found 60 persons going towards the church. PW 3, Paul Murmu found 60/70 persons putting straw beneath the vehicle and setting fire. PW 36 – Raghunath Dohal mentioned that about 60-70 people gathered in front of the church.
b) As regards straw being kept on the roof of the vehicle to prevent cold, PWs 3, 10, 11, 15, 36, 39, 43, 45 and 52 mentioned different versions.
c) With regard to whether there was a light or not which is vital for identification of miscreants prior to vehicle caught fire, PW 2 has stated that Moon had already set and he identified Chenchu and A 7 in the light of lamp (dibri) put in the verandah. On the other hand, PW 5, who was 11 years old at the time of evidence has mentioned that it was dark night. PW 11 has stated that he had not seen any lamp burning in the verandah of neighbours but saw some miscreants due to illumination of fire. PW 43 has stated that there is no electricity supply in the village and stated that they do not keep light in verandah while sleeping inside the house during night.
d) About chilly wintry night, PW3 has stated it was chilly night with dew dropping whereas PW15 has stated that he cannot say whether there was fog at the night of occurrence and PW 36 has stated it was wintry night and PW52 has stated fog occurs during the month of December and January and he could not say if there was any fog at the night of occurrence.
e) With regard to clothes worn by attackers, PW36 has stated that A1 was wearing a Punjabi Kurta, A3 and A12 were wearing a banian. PW19 has stated that he saw 9 persons out of which 8 were wearing trousers and shirts and one person who was addressed as Dara was wearing a lungi and Punjabi Kurta. PW39 has stated that during winter season people usually come with their body covered. PW52 has stated that usually people wear winter clothing during December and January.
f) With regard to the aspect whether the accused persons had covered their faces, PW 4 who is the informant has stated that the faces of the accused were covered. On the other hand, PWs 11, 15 and 36 have asserted that none covered their faces.
g) As regard to who lit the fire, PW3 has stated that a short person lit fire. PW10 has mentioned that he did not see anyone whereas PW11 has stated that number of people set fire. PW32 has mentioned that there was no gathering near the vehicles when they caught fire. PW 36 has stated not seen any villager in between the house of the PW4 and the Church and PW39 has stated he had not seen any female near the place of occurrence.
h) As regard to whether Nagin dance was over or not, PW 32 had deposed that when the vehicle caught fire, Nagin dance was being performed whereas PW 39 has deposed that dance continued throughout the night.
i) Whether Nagin dance was visible from the place of occurrence, PW 3 has stated that it was not visible due to darkness. PW 4 has stated the distance between Nagin dance and Church is 200 ft. PW 5 has stated that Church was not visible from the place of Nagin dance and the distance was 200 ft. PW 6 has mentioned that Church was visible from the place of Nagin dance and distance was 200 ft and finally PW 32 has stated the church was visible from the place of Nagin dance.
j) With regard to distance between place of occurrence and Nagin dance, PW 15 has mentioned the distance is 200 ft. PW 32 has stated that vehicles were visible from the place of Nagin dance, PW 36 has stated Nagin dance staged 10-12 houses apart from Church at front side whereas PW 39 has stated Nagin dance staged 4 houses apart from Chruch and PW 43 has stated that it was staged 5 houses apart from church and he admitted that he was not sure of the distance between church and the place of Nagin dance.
k) With regard to their arrival at the place of occurrence, PW 11 has stated that PWs 4, 15 and 23 came to the place of occurrence an hour after the miscreants left the place whereas they deposed that they were present there from the beginning. PW 10 has stated that he woke up on hearing bursting and beating sound. PW 15 has deposed that he went to the huts behind the church and called PWs 10, 3 and others. PW 3 has stated that he was woken up by PW 10.
17) By pointing out these contradictions, Mr. Tulsi submitted that the presence of these witnesses becomes doubtful. However, if we see these witnesses through microscope, it is true that the above mentioned contradictions would be visible and clear but by and large they explained the prosecution case though they could not identify all the accused persons with clarity except Dara Singh (A1) and Mahendra Hembram (A3). By virtue of these minor contradictions, their testimony cannot be rejected in toto. But, by and large, there are minor contradictions in their statements as demonstrated by Mr. Tulsi. In the face of the above-mentioned difference in the evidence of prosecution witnesses with regard to light, clothing, number of accused persons, fog, faces covered or not, it is not acceptable in toto except certain events and incidents which are reliable and admissible in evidence. CONFESSIONS:
18) It was submitted that confessions of various accused persons, namely, A9, A 11 and A 12 under Section 164 Cr.P.C. cannot be considered to be voluntary on account of the fact that all the co-accused persons were produced before the Magistrate from police custody and were remanded back to police custody. It was further highlighted that accused No. 14 was produced from police custody for recording his confession while A 13 made his statement when he was on bail and in no case the Magistrate ensured the accused persons that if they decline they would not be sent to police custody. It was further highlighted that illiterate accused persons cannot be expected to have knowledge of finest nuances of procedure. It was pointed that besides all confessions being exculpatory and made after conspiracy ceases to be operative are inadmissible. Finally, it was stated that Section 164 Cr.P.C. requires faithful compliance and failure impairs their evidentiary value.
19) Section 164 Cr.P.C. speaks about recording of confessions and statements. It reads thus: “164. Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any, time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is bear, made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect. "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A.B. Magistrate
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. “
20) While elaborating non-compliance of mandates of Section 164 Cr.P.C., Mr. Tulsi, learned senior counsel appearing for the accused cited various instances.
(a) Accused No. 9, Rabi Soren, was arrested by the investigating agency and remanded to police custody for 7 days i.e. from 20.05.1999. It is their claim that on 18.05.1999, Accused No.9 made a statement under Section 164 Cr.P.C. and thereafter remanded back to police custody. It was also pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency.
(b) Another instance relates to Mahadev Mahanta, Accused No. 11 who was arrested on 01.07.1999 by the investigating agency and he was remanded to police custody. However, on 08.07.1999, Accused No. 11 made a statement under Section 164 Cr.P.C. PW 55, I.O. has stated that the statement of the accused was recorded under Section 164 Cr.P.C. that he was under police custody and he was remanded back to police custody. In his statement under Section 313 Cr.P.C. he also stated that he was beaten by the investigating agency.
(c) In the case of Turam Ho Accused No. 12, he was arrested on 13.05.1999 by the Investigating Agency and from 19.05.1999 to 23.05.1999 the accused person was in custody of the investigating agency. While so, on 21.05.1999, the accused No. 12 made a statement under Section 164 Cr.P.C and thereafter remanded back to police custody. It was pointed out that he also stated in his statement under Section 313 Cr.P.C. that he was beaten by the investigating agency.
(d) The next instance relates to Umakanta Bhoi, Accused No. 13 who refused to make a statement under Section 164 Cr.P.C prayed by I.O. to be put for 16.03.1999 for recording statement. It was directed to jail authority to keep the accused under calm and cool atmosphere. A 13 was produced from Judicial Custody for recording statement under Section 164 Cr.P.C. and he refused to make a statement. However, on 31.08.1999, he made a confessional statement.
(e) In the case of Dayanidhi Patra, Accused No. 14, on 21.09.1999, he was arrested by the Investigating Agency. On 24.09.1999, Learned ASJ granted police remand for 7 days i.e. on 01.10.1999 and that on that day A 14 made a statement under Section 164 Cr.P.C. It was pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency.
21) Before analyzing the confessional statements of various accused persons and its applicability and the procedure followed by the Magistrate in recording the statement, let us consider various decisions touching these aspects.
22) In Bhagwan Singh and Ors. vs. State of M.P. (2003) 3
28. It has also been held that the Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. Unfortunately, in this case, the evidence of the Judicial Magistrate (PW 1) does not show that any such precaution was taken before recording the judicial confession.
29. The confession is also not recorded in questions-andanswers form which is the manner indicated in the criminal court rules.
30. It has been held that there was custody of the accused Pooran Singh with the police immediately preceding the making of the confession and it is sufficient to stamp the confession as involuntary and hence unreliable. A judicial confession not given voluntarily is unreliable, more so when such a confession is retracted. It is not safe to rely on such judicial confession or even treat it as a corroborative piece of evidence in the case. When a judicial confession is found to be not voluntary and more so when it is retracted, in the absence of other reliable evidence, the conviction cannot be based on such retracted judicial confession. (See Shankaria v. State of Rajasthan, (1978) 3
23) In Shivappa vs. State of Karnataka (1995) 2
7. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a ‘voluntary’ statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with.
8. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: “I have not stated to the accused that I am a Magistrate” and further admitted: “I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement.” The Magistrate, PW 17 also admitted that “at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity of the court”. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in court it is further revealed that the Magistrate did not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same premises. No contemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor safe to act upon the confessional statement of the appellant…..”
24) In Dagdu and Others vs. State of Maharashtra, (1977) 3
25) Davendra Prasad Tiwari vs. State of U.P. (1978) 4
26) In Kalawati & Ors. vs. State of Himachal Pradesh, 1953
27) In State thr. Superintendent of Police,
97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15(1) of TADA, under what provision can a confession of one accused be used against another coaccused at all? It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a coaccused, abettor or conspirator tried in the same case.
98. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu v. R.,
99. The above observations had since been treated as the approved and established position regarding confession visà- vis another co-accused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P.,
28) In State of Maharashtra vs. Damu (2000) 6
29) The following principles emerge with regard to Section 164 Cr.P.C.:-
(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement. Judicial Magistrates (PWs-29 & 34)
30) Ashok Kumar Agrawal, PW29 and Tojaka Bharti, PW34, Judicial Magistrates recorded the confessional statements of some of the accused. Judicial Magistrate, PW29 recorded the confessional statement of Rabi Soren and Turam Ho and PW34, Judicial Magistrate recorded the confessional statement of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi Patra. It is the claim of Mr. K.T.S. Tulsi, learned senior counsel for the accused, that the evidence of PW29 and PW34, Judicial Magistrates shows that they were blissfully unaware of the stringent responsibility cast on them by Section 164 Cr.P.C. According to him, their evidence create an impression that they were not aware of the difference between the police custody and judicial custody nor do they seem to understand the significance of Section 164 Cr.P.C. He pointed out that why the first four pages in case of each of the accused persons is not signed by the accused is not explained. They neither asked any searching questions regarding the nature of custody either from the accused persons or from police nor did they scrutinize the records to ascertain the same from remand orders. He also pointed out that none of the accused who have confessed had been given the assurance that if they refuse to make any confession, they would not be remanded to police custody. This assurance is required for an accused to make an informed decision being fully aware of the consequences of refusing.
31) It is seen from the evidence of PW29, who recorded the confession of Rabi Soren, that at the relevant time the accused was in the custody of
32) PW34, Judicial Magistrate, recorded the confessional statement of accused Mahadev Mahanta on 08.07.1999 immediately after his production before him from the police custody. PW34 was directed by the Addl. C.J.M. to record the confessional statement of Mahadev Mahanta. It was noted that he was given only 10 minutes’ time for reflection after his production from police custody. The other accused who made the confessional statement is Dayanidhi Patra whose statement was recorded by PW34. The High Court, on corroboration of the confessional statement, had found that the entire confessional statement is exculpatory and he also retracted from the confession. It was further found that this confessional statement was made long after the charge-sheet was filed i.e. on 22.06.1999. The analysis of evidence of PWs 29 & 34 – Judicial Magistrates shows that many of the confessional statements were recorded immediately after production of the maker after long
33) Apart from the strong observation of the High Court about procedural lapse on the part of PWs 29 & 34, we also verified their statements and requirements in terms of Section 164 Cr.P.C. In the certificate, there is no specific reference about the nature of the custody from which these persons were produced nor about the assurance that they would not be remanded to police custody if they declined. We have already pointed out that Section 164 Cr.P.C. requires strict and faithful compliance of sub-sections 2 to 4, the failure to observe safeguards not only impairs evidentiary value of confession but cast a doubt on nature and voluntariness of confession on which no reliance can be placed. As rightly observed by the High Court, no exceptional circumstances could be brought to our notice by the prosecution in respect of the appellants other than A1 and A3.
34) It was next argued that the incident could not have been happened as suggested by the prosecution. According to the learned senior counsel for the accused the reason of possibility of the incident which took place in the dead of the night as a result of the accident from burning of the stove etc. for generating heat on cold wintry night cannot be ruled out. In support of the above contention, he pointed out several circumstances which are inconsistent with the fire starting by arson from outside. On going through the entire materials, we are unable to accept the said contention. Though we noticed several inconsistencies in the prosecution evidence and the accused persons were not specifically identified except A1 and A3, the fact remains that the Van in which Graham Staines and his two children were sleeping were set on fire and burnt to death due to the cause of the miscreants. In other words, death of these three persons by setting fire by the miscreants cannot be ruled out. There is no material to conclude that the fire emanated from inside of the vehicle and then spread to rest of the vehicle after the fuel tank caught fire. There is no basis for such conclusion though the prosecution witnesses could not pin-point and identify the role of each accused.
35) Another question which we have to consider is whether the Police (
11. … … When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.
12. … … A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'. 16. In view of these considerations, we have come to the following conclusions :-
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.” In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial Court and confirmed by the High Court, cannot be faulted with. In view of oral report of Rolia Soren, PW 4 which was reduced into writing, the evidence of PW 23, two letters dated 01.02.2002 and 02.02.2002 addressed by Mahendra Hembram (A3) to the trial Judge facing his guilt coupled with the other materials, we are unable to accept the argument of Mr. Ratnakar Dash, learned senior counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived by the High Court. Additional factors-Mahendra Hembram (A3).
36) Coming to the role of Mahendra Hembram A3, the prosecution very much relied on his letters dated 01.02.2002 and 02.02.2002 addressed to the Sessions Judge wherein he confessed his guilt. Though a serious objection was taken about the admissibility of these two letters, the contents of these two letters addressed to the Sessions Judge in the course of trial lend ample corroboration to his identification before the trial Court by Joseph Marandi, PW 23. Even in his case, it is true that there was no TIP conducted by Judicial Magistrate. However, inasmuch as when he was facing trial, he sent the above-mentioned two letters to the Sessions Judge which lend corroboration to his identification in the trial court by PW 23 and rightly observed by the High Court, the same can be safely relied upon. The evidence reveals that Rolia Soren (PW 4) accompanied by PW 23 soon after the incident proceeded to inform the same to the police and finding the police to have already left for Manoharpur, returned back and finally on the oral report of PW 4, the Officer In-charge of Anandapur P.S. (PW 52) prepared FIR (Ext. 1/1) and registered a case under Sections 147, 148, 435, 436 and 302 read with 149 IPC against Dara Singh (A 1) and five others. The prosecution has also relied on a letter (Ext.2 after it was translated to English marked as Ext. 49) said to have been addressed by Mahendra Hembram (A3) to Kapura Tudu (PW 9) which, according to the prosecution, contains his admission of involvement in the incident.
37) An excerpt from the letter of Mahendra Hembram may be translated into English as under:- “You may be knowing the Manoharpur incident. No one ever thought that such a thing will happen in the village. I had not told any of my family members that such a work will be done. Dara Singh stayed in our house and did the work. I also did the work as I had quarrel with the ‘Jisu’. I had not disclosed the identity of Dara Singh even to my mother. The conspiracy to kill Manoharpur ‘Jisu’ was hatched at HOROHND for which I took leave during training period and stayed in our house with Dara Singh for five days and went to the forest thereafter. The villagers know that I have done this work as I have got cordial relationship with Dara Singh.”
This is a confessional statement of accused Mahendra Hembram (A3) inculpating himself and Dara Singh (A1).
38) Accused Mahendra Hembram, in his letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law, Kapura Tudu (PW9), confessed that he along with Dara Singh burnt the ‘Jisu’ (Christian Missionary). All the ocular witnesses have testified that after setting fire to vehicles and burning Graham Staines and his two sons alive, the miscreants raised slogans “Jai Bajrang Bali” and “Dara Singh Zindabad”.
39) Joseph Marandi, PW23 has testified that accused Mahendra Hembram amongst others set fire to the vehicles. Mahendra Hembram, in his statement recorded under Section 313 Cr.P.C., on 04.02.2002 has stated that he may be the short statured person. Accused Mahendra Hembram in his letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law, Kapura Tudu (PW9) had confessed to have burnt the Christian missionary along with Dara Singh. In the course of trial, he filed petitions on 01.02.2002 and 02.02.2002 pleading guilty and confessing to have set fire to the vehicles. In his statement recorded under Section 313 Cr.P.C. on 04.02.2002, he has admitted to have set fire to the vehicles and in his statement recorded under Section 313 Cr.P.C. on 24.03.2003 has admitted to have filed petitions pleading guilty and to have stated in his earlier examination under Section 313 Cr.P.C. that he had set fire to the vehicles. There is no impediment in relying on a portion of the statement of the accused and finding him guilty in consideration of the other evidence against him as laid by the prosecution.
40) It is clear that the letters marked as (Ex. 213) were written by Mahendra Hembram though denied by him, contents of the said two letters amount to confession, or in any event admission of important incriminating materials. He had been identified before the trial Court by Joseph Marandi (PW23) as a participant in the crime. As rightly observed by the High Court, contents of these two letters lend support to the evidence in identification before the trial Court for the first time as narrated by PW23. In this way, his identification for the first time in the trial Court is an exceptional case and even in the absence of further corroboration by way of previously held TIP, his involvement in the crime is amply corroborated by the above said letters written by him.
41) Learned Addl. Solicitor General has pointed out that insofar as Mahendra Hembram is concerned, three types of evidence are available against him: a) Confession; b) testimony of eye-witnesses/identification in court/PW 23 Joseph Marandi; and c) absconding of the accused. Learned Addl. Solicitor General while advancing his argument besides referring to the evidence of PW 23 laid more emphasis on the statement of the appellant. Though an objection was raised as to the manner in which the trial Judge questioned A3 with reference to contents of his letters dated 01.02. 2002 and 02.02.2002, it is relevant to point out that when the person facing trial insisted to look into the contents of his letters, the presiding officer concerned has to meet his requirement subject to the procedure established. The learned trial Judge accepted the entire contents of the admission made by A3 and affording reasonable opportunity and by following the appropriate procedure coupled with the corroborative evidence of PW 23, upheld his involvement and participation in the crime along with A1 which resulted in rioting, arson and murder of three persons. Though learned senior counsel appearing for A3 was critical on relying upon the letter Ex. 49 said to have been written by A3 to his Sister-in-law PW 9, it shows that A3 confessed to have participated in the incident along with A1. It is seen that the entire contents of letter were used by the trial Judge which was rightly accepted by the High Court. The other circumstance urged by the prosecution was that A3 absconded soon after the incident and avoided arrest and this abscondence being a conduct under Section 8 of the Indian Evidence Act, 1872 should be taken into consideration along with other evidence to prove his guilt. The fact remains that he was not available for quite sometime till he was arrested which fact has not been disputed by the defence counsel. We are satisfied that before accepting the contents of the two letters and the evidence of PW 23, the trial Judge afforded him required opportunity and followed the procedure which was rightly accepted by the High Court. Additional factors – Dara Singh (A1)
42) In addition to what we have highlighted and elicited from the materials placed, it is relevant to point out that all the eyewitnesses examined by the prosecution consistently stated that during occurrence the miscreants raised slogans in the name of Dara Singh as “Dara Singh Zindabad”. The story of this slogan was also mentioned in the first information report lodged soon after the occurrence. This slogan is in the name of Dara Singh, corroborates the identification before the trial Court for the first time. In addition to the same, some of the witnesses identified Dara Singh by photo identification. We have already highlighted the evidentiary value of photo identification and identifying the person in the dock. In other words, we have pointed out that those materials coupled with the other corroborative evidence are permissible. In addition to the same, all the witnesses mentioned about the blowing of whistle by Dara Singh.
43) Though the trial Court awarded death sentence for Dara Singh, the High Court after considering entire materials and finding that it is not a rarest of rare case, commuted the death sentence into life imprisonment. The principles with regard to awarding punishment of death have been well settled by judgments of this Court in Bachan Singh vs. State of Punjab
44) Though an argument was advanced that only after the intervention of PW 55, I.O. from
45) Finally, insofar as the appeals filed by the
46) In a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large. It strikes at the very root of the orderly society which the founding fathers of our Constitution dreamt of. Our concept of secularism is that the State will have no religion. The State shall treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual right of religion, faith and worship.
47) The then President of India, Shri K R. Narayanan once said in his address that “Indian unity was based on a tradition of tolerance, which is at once a pragmatic concept for living together and a philosophical concept of finding truth and goodness in every religion“. We also conclude with the hope that Mahatma Gandhi’s vision of religion playing a positive role in bringing India’s numerous religion and communities into an integrated prosperous nation be realised by way of equal respect for all religions. It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other. 48) The analysis of entire materials clearly shows that the High Court is right in arriving at its conclusion. In the case on hand, there is no material to prove conspiracy charge against any of the accused. However, as pointed out by the High Court which we also adverted to in the earlier paras even in the midst of uncertainties, the witnesses have specified the role of (A1) and (A3) which we agree with and confirm the same and we also maintain the conviction of the appellant Dara Singh (A1), Mahendra Hembram (A3) and the sentence of life imprisonment imposed on them. In the same way, in the absence of acceptable materials and in view of the various infirmities in the prosecution case as pointed out by the High Court, we confirm the order of acquittal of others who are all poor tribals.
49) In the result, Criminal Appeal No. 1366 of 2005 filed by Rabindra Kumar Pal @ Dara Singh, Criminal Appeal No. 1259 of 2007 filed by Mahendra Hembram and Criminal Appeal Nos. 1357-1365 filed by
...…………………………………J.
(P. SATHASIVAM)
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(DR. B.S. CHAUHAN)
JANUARY 21, 2011
