Tripura High Court
The Special Judge vs State Of Tripura on 14 September, 2022
Bench: T. Amarnath Goud, Arindam Lodh
Page 1 of 70
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Death Sentence Ref. No.01 of 2020
1. The Special Judge, Gomati Judicial District, Udaipur.
.....Appellant
-V E R S U S-
1. State of Tripura.
2. Kastarai Tripura, son of late Kachakla Tripura, R/O Bairagi Dokan,
P.S. Nutanbazar, District: Gomati, Tripura.
3. Bhanjoy Tripura, son of late Ajoy Tripura, R/O Bairagi Dokan, P.S.
Nutanbazar, District: Gomati, Tripura.
..... Respondent.
Crl.A(J). No. 12 of 2020
1. Sri Bhanjoy Tripura, son of late Ajoy Tripura of Bairagi Dokan, P.S. Nutanbazar, District: Gomati, Tripura.
.....Appellant
-V E R S U S-
1. The State of Tripura.
..... Respondent.
Crl.A(J). No. 10 of 20211. Kastarai Tripura, son of late Kachakla Tripura, village: Bairagi Dokan, P.S. Nutanbazar, District: Gomati, Tripura, PIN-799101.
.....Appellant
-V E R S U S-
1. The State of Tripura.
..... Respondent.
B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE ARINDAM LODH
For Appellant(s) : Mr. S. Sarkar, Sr. Advocate.
Mr. S. Kar Bhowmik, Sr. Advocate.
Ms. S. Banik, Advocate.
Mr. S. Bal, Advocate.
For Respondent(s) : Mr. Ratan Datta, Public Prosecutor.
Date of hearing : 07.09.2022
Date of delivery of
judgment and order : 14.09.2022
Whether fit for reporting : YES
Page 2 of 70
JUDGMENT & ORDER
[T. Amarnath Goud, J]
Heard Subrata Sarkar, learned senior counsel and Mr. Samrat Kar Bhowmik, learned senior counsel assisted by Ms. S. Banik and Mr. S. Bal, learned counsel appearing for the convict-appellant. Also heard Mr. Ratan Datta, learned Public Prosecutor, appearing for the respondent-State.
[2] These appeals have been filed under Section-374(2) of Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 12.02.2020 and 13.02.2020 passed by the learned Special Judge, Gomati Judicial District Court in connection with Special (POCSO) 18 of 2018, whereby and whereunder, the accused persons were convicted to suffer the sentence of death for the offence punishable under Section-376A of IPC with a fine of Rs.30,000/- each and in default to suffer further RI for six months. For the offence, as stated above, the learned Special Judge, Gomati District, Udaipur awarded death penalty. The conviction and sentence are challenged by the accused-persons. In view of the capital punishment, reference for confirmation of death sentence under Section-366 of Cr. P.C. is also placed for our consideration.
[3] In Crl.A(J). No. 12 of 2020, the appellant namely, Sri Bhanjoy Tripura was sentenced to death for the offence punishable under Section-302 of IPC along with fine of Rs.30,000/- and in default to suffer RI for six months. He was further sentenced to suffer rigorous imprisonment for life (remaining part of his natural life) and to pay a fine of Rs.25,000/- and in default of payment he would suffer further RI for three months for commission of offence punishable under Section-376 D of IPC. Again he was sentenced to suffer RI for 7 years along with fine of Rs.10,000 for the offence punishable under Section-363 of IPC and in default to suffer further RI for two months. The appellant herein was further sentenced to suffer RI for seven years along with a fine of Rs.10,000/- for the offence punishable under Section-201 of IPC with default stipulations. The learned Court below has further sentenced him to suffer RI for seven years along with fine of Rs.10,000/- for the offence Page 3 of 70 punishable under Section-120B of IPC and another seven years along with fine of Rs.10,000/- under Section-4 of POCSO Act with default stipulations. For offence under Section 302 of IPC, the learned Judge awarded death penalty. The conviction and sentence are challenged by the accused. In view of the capital punishment, reference for confirmation of death sentence under Section-366 of Cr. P.C. is also placed for our consideration.
[4] In Crl.A(J). No. 10 of 2021, the appellant namely, Sri Kastarai Tripura was sentenced to suffer death and to pay a fine of Rs.30,000/- and in default to suffer RI for six months. He was further sentenced to suffer rigorous imprisonment for life (remaining part of his natural life) and to pay a fine of Rs.25,000/- and in default of payment he would suffer further RI for three months for commission of offence punishable under Section-376 D of IPC. Again he was sentenced to suffer RI for 7 years along with fine of Rs.10,000 for the offence punishable under Section-363 of IPC and in default to suffer further RI for two months. The appellant herein was further sentenced to suffer RI for seven years along with a fine of Rs.10,000/- for the offence punishable under Section-201 of IPC with default stipulations. The learned Court below has further sentenced him to suffer RI for seven years along with fine of Rs.10,000/- for the offence punishable under Section-120B of IPC and another seven years along with fine of Rs.10,000/- under Section-4 of POCSO Act with default stipulations. In view of the capital punishment, reference for confirmation of death sentence under Section-366 of Cr. P.C. is also placed for our consideration.
[5] Shortly put, the prosecution story is that one Tarin Kumar Tripura, PW-6 herein, of Krishnakanta Para lodged a written complaint on 06.12.2018 at 0105 hours with the officer-in-charge of Nutanbazar police station alleging that on 05.12.2018 at about 9.00am his younger sister (name withheld), aged about 11 years went to her school namely Krishnakanta Para S.B. School. At about 3.00pm, when the school was supposed to get over, she did not return. At about 4.00pm when they were searching for his sister, two minor girls of their village informed them that at about 9.30am they saw his sister in the company of accused-appellants, namely, Kastarai Tripura and Page 4 of 70 Bhanjoy Tripura and after sometime they heard the scream of a girl. Getting this information, the informant along with others, detained Bhanjoy Tripura at about 6.30pm and on being confronted, Bhanjoy Tripura confessed that at about 10.00am, he and Kastarai Tripura took his sister to the jungle near the road and committed rape on her and thereafter killed her and concealed her dead body under the earth in a ditch.
[6] On the basis of the aforesaid complaint, Officer-in-charge of Nutanbazar police station registered Nutanbazar P.S. Case No.51 of 2018 under Sections-376(2)(i)/376D/302/201/34 of IPC and Section-6 of the POCSO Act against the convict-appellants, namely, Bhanjoy Tripura and Kastarai Tripura and after completion of investigation, charge-sheet No.01 dated 14.02.2019 under Sections-120B/363/376D/302/201 of the IPC and Section-6 of the POCSO Act was submitted against the named above convict- appellants and charges were framed and read over and explained to the accused-persons to which they pleaded not guilty and claimed to be tried.
[7] To substantiate the charges, prosecution had examined as many as 32 witnesses and exhibited certain documents and the defence did not adduce any evidence. On closure of prosecution evidence, the accused-persons were examined separately under Section-313 of Cr.P.C. for having their response in respect of the incriminating materials surfaced in the evidence, as adduced by the prosecution, wherein, the accused-persons declined to adduce any evidence in support of their defence. Thereafter, on appreciation of the evidence and materials on record, the learned Special Judge, has passed the judgment dated 12.02.2020 & 13.02.2020 and convicted the appellants as aforementioned. The judgment and sentence of the trial Court is as under:
"12.02.2020 In the result and in the light of the above discussion, I conclude that the prosecution has proved the charge under Sections- 120B/363/376D/376A/302/201 of the IPC and Section-4 of the POCSO Act against the accused-persons namely, Kastarai Tripura and Bhanjoy Tripura. The accused persons are hereby convicted of the charge under Sections-120B/363/376D/376A/302/201 and Section-4 of the POCSO Act.
Sentence will be passed after hearing the convicts and the learned counsels for both sides tomorrow.Page 5 of 70
The sentence dated 13.02.2020: the convict Kastarai Tripura and Bhanjoy Tripura are hereby sentenced to death for the offence under Section-376A of the IPC. They are also sentenced to fine of Rs.30,000/- for the same offence. In default of payment of the fine they shall suffer RI for six months.
The convicts Kastarai Tripura and Bhanjoy Tripura are hereby sentenced to death for the offence under Section-302 of the IPC. They are also sentenced to fine of Rs.30,000/- for the same offence. In default of payment of the fine they shall suffer RI for six months.
The convicts Kastarai Tripura and Bhanjoy Tripura are hereby sentenced to rigorous imprisonment for life which shall mean the remainder part of their natural life and fine of Rs.25,000/- for the offence under Section-376D of the IPC. In default of payment of the fine they shall suffer further RI for three months.
The convicts Kastarai Tripura and Bhanjoy Tripura are hereby sentenced to rigorous imprisonment for 7 (seven) years and fine of Rs.10,000/- for the offence under Section-363 of the IPC. In default of payment of the fine they shall suffer further RI for two months.
The convicts Kastarai Tripura and Bhanjoy Tripura are hereby sentenced to rigorous imprisonment for 7(seven) years and fine of Rs.10,000/- for the offence under Section-201 of the IPC. In default of payment of the fine they shall suffer further RI for two months.
The convicts Kastarai Tripura and Bhanjoy Tripura are hereby sentenced to rigorous imprisonment for 7(seven) years and fine of Rs.10,000/- for the offence under Section-120B of IPC. In default of payment of the fine they shall suffer further RI for two months.
The convicts Kastarai Tripura and Bhanjoy Tripura are hereby sentenced to rigorous imprisonment for 7(seven) years and fine of Rs.10,000/- for the offence under Section-4 of the POCSO Act. in default of payment of the fine they shall suffer further RI for two months.
The period of detention undergone by the convicts shall be set off against the term of imprisonment as per provision of Section-428 of the Cr. P.C. The fine money if realized shall be paid to the victim‟s father.
Let the record of the case be sent to the Hon‟ble High Court for confirmation of the death sentence under Section-366 of Cr. P.C."
[8] Being aggrieved by and dis-satisfied with the said judgment and order of conviction dated 12.02.2020 passed by the learned Special Judge, Gomati, in Case No. Special (POCSO) 18 of 2018, the appellants herein have preferred this appeal before this Court.
Page 6 of 70[9] Mr. Subrata Sarkar, learned senior counsel assisted by Ms. S. Banik, learned counsel appearing for the convict appellant, namely, Bhanjoy Tripura has submitted that the learned Court below has failed to appreciate the law, facts and circumstances. More so, the examination of the appellants under Section-313(1)(b) of Criminal Procedure Code was done in accordance with law. The learned Court below convicted the appellants merely on conjectures and surmises and hence, the finding of the Court below must be interfered with.
[10] He contended that there are inconsistent and material discrepancies in the evidences of PWs.1, 2, 3, 6, 7, 8, 11, 13, 17, 18, 19, 20, 23 and 28 and for that it cannot be said that the prosecution has been able to prove the case against the accused-appellants beyond all reasonable doubts. PW-1 in his deposition has stated that they brought Kastarai Tripura to the house of Smt. Swapna Tripura for the purpose of interrogation whereas the other PWs did not state that the appellant, Kastarai Tripura did not visit the house of Smt. Swapna Tripura, which creates gross doubt in the prosecution case.
[11] The incident took place on 05.12.2018 but PWs.2 & 3 were produced by the I.O. before the Magistrate for recording statement under Section-164(5) of Cr. P.C. on 29.01.2019 i.e. after elapse of two months. But there was no such explanation for the delay thus creates a gross doubt regarding the tutors of the said prosecution witnesses involving the appellants in the instant case. But the Court below without considering the same, convicted the appellants for the alleged offences and hence the order of conviction and sentence is liable to be set aside.
[12] PW-4, who is the teacher in charge of the school, namely, Krishnakanta Para S.B. School where the victim studied was a seizure witness of the school certificate and he could not give a clear explanation that from which source he got the actual date of birth of the victim which had been entered in the school register. The I.O. who has recorded the statement of PW- 6 under Section-161 of Cr. P.C. in Bengali but, from bare perusal of the deposition of PW-6 it is evident that he has no knowledge about Bengali Page 7 of 70 language. It is quite obvious that the I.O. of the case without examining PW-6, he himself had written without the knowledge of PW-6. Moreover, the I.O. of the present case while deposing before the Court, did not give any specific explanation about the same.
[13] PW-8 in his deposition has stated that on 05.12.2018, while PW- 8 along with SDPO, Amarpur, SDM Karbook Subdivision, reached at the spot found, Bhanjoy Tripura who was already detained by the local people but PW- 8 did not clearly state in his deposition that on what basis he along with SDPO, SDM went to the alleged spot of incident.
[14] PWs.16, 22 and 25 are the medical officers who conducted the post mortem examination over the dead body of deceased and as per the medical report of PW-16 no visible injury was found over external genital area of the deceased. Moreover, the hymen of the deceased was torn but that was old and healed. PW-24, scientific officer who submitted that SFSL report of the vaginal swab of the deceased opined that there were no seminal stain/spermatozoa and from a bare perusal of the report of the expert, commission of rape becomes doubtful. Even though it is opined that rape cannot be ruled out in the absence of samples, not supporting the allegations, opinion becomes redundant.
[15] PWs.13, 17, 18, 19, 28, the co-villagers of the deceased were conjointly searching for deceased and in this regard the PWs went to the house of PW-2 and PW-3 who, explained other villagers that in the morning they met the deceased on the road along with Sri Kastarai Tripura and Sri Bhanjoy Tripura. Thereafter, the villagers visited the house of Sri Kastarai Tripura and Bhanjoy Tripura and both of the alleged accused were being detained and brought before the house of Sri Nalin Tripura. The PWs also stated that during the interrogation conducted by them, Kastarai Tripura somehow managed to flee away but, Bhanjoy Tripura was detained by the villagers. On being informed by the villagers, police reached to the place where Bhanjoy Tripura was being detained and tortured by the villagers and was also threatened with dire consequence to confess before the above mentioned PWs that he and Page 8 of 70 Kastarai Tripura had committed the crime of rape and murder. But, the learned Court below without applying his judicious mind convicted the appellants illegally.
[16] On the point of confession he argued that as per Indian Evidence Act, confession made before the police officer is not admissible or adduced into the evidence against the accused persons. From a bare reading of the record it would be evident that though the Magistrate was available during the interrogation, he did not take any active part during the process of confession of the accused. In the meanwhile, it can be presumed that confession made by the accused was not free from inducement threat or coercion and it was hit by Section-26 of the Evidence Act. He has further submitted that there is no express or implied mens-rea behind the alleged offence and at no point of time, during the entire process of investigation, inquiry or trial, there was any endeavour made by the prosecution to find out any motive which resulted in the alleged offence.
[17] On the issue of last seen together he has relied upon a decision of the Apex Court in Rambraksh Alis Jaslim v. State of Chhattisgarh, reported in (2016) 12 SCC 251, wherein the Court has observed thus:
"12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused."
[18] The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It will be hazardous to come to a conclusion of guilt in cases where there is no other Page 9 of 70 positive evidence to conclude that the accused and the deceased were last seen together.
[19] On extra judicial confession he expressed his eagerness and averred that if extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent, it may be difficult for the Court to base a conviction on such a confession. On to this issue, he has relied on a decision of the Apex Court in Sahadevan and Another v. State of Tamil Nadu, reported in (2012) 6 SCC 403, wherein, the Court has held thus:
"13. There is no doubt that in the present case, there is no eye-witness. It is a case based upon circumstantial evidence. In case of circumstantial evidence, the onus lies upon the prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. Furthermore, in case of circumstantial evidence, where the prosecution relies upon an extra-judicial confession, the court has to examine the same with a greater degree of care and caution.
14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it.
16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.Page 10 of 70
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law."
[20] He argued that the prosecution must prove every link of the chain and complete chain-Infirmity or lacuna in the prosecution cannot be cured by false defence or plea. A person cannot be convicted on pure moral conviction. False explanation can be used as additional link to fortify the prosecution case, subject to satisfaction of certain conditions and in this regard he has relied upon a decision of the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, wherein, the Court has observed as under:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra [(1973) 2 SCC 793] where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."Page 11 of 70
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) The circumstances should be of a conclusive nature and tendency, (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry, thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for."
[21] On the point of Circumstantial evidence, the duty of courts to safeguard themselves against basing decision suspicions, confession, must be accepted or rejected as a whole. Self-exculpatory statement containing admission of incriminating facts and admission of incriminating portion as true rejecting exculpatory portion as false, he has relied on a decision of the Apex Court in Palvinder Kaur v. State of Punjab, reported in (1953) Cr. LJ 154, where the Court has observed thus:
"It is true that strictly speaking exculpatory statements in which the prisoner denies her guilt cannot be regarded as confessions, but these statements are often used as circumstantial evidence of guilty consciousness by showing them to be false and fabricated.
It was also found that though Palvinder might have desired to continue her illicit intrigue with Mohinderpal she may not have desired to sacrifice her wealth and- position at the altar of love. She may have had' a motive to kill her husband but a stronger motive to preserve her own position as the wife of a prospective chief of Bhareli and that in this situation it was by no means impossible that the murder was committed Page 12 of 70 by Mohinderpal alone without the consent and knowledge of Palvinder, and that though a strong suspicion attached to Palvinder, it was impossible to state with confidence that poison was administered by her. Therefore, it was not possible to convict her under Section-302, Indian Penal Code."
******* ******** ******** ****** The result, therefore, is that we are constrained to hold that there is no material, direct or indirect, for the finding reached by the High Court that the death of Jaspal was caused by the administration of potassium cyanide. If we believe the defence version his death was the result of an accident. If that version is disbelieved, then there is no proof as to the cause of his death. The method and manner in which the dead body of Jaspal was dealt with and disposed of raise some suspicion but from these, facts a positive conclusion cannot be reached that he died an unnatural death necessarily, Cases are not unknown where death- is accidental and the accused has acted in a peculiar manner regarding the disposal of the dead body for reasons best known to himself. One of them might well be that he was afraid of a false case being started against him. Life and liberty of persons cannot be put in jeopardy mere suspicions, howsoever strong, and they can only be deprived of these the basis of definite proof. In this case, as found by the High Court, not only were the Sub- Inspector of police and police constables and other witnesses guilty of telling deliberate lies but the prosecution was blameworthy in introducing witnesses in the case to support their lies and that being so, we feel that it would be unsafe to convict the appellant the material that is left after eliminating the perjured,, false and inadmissible evidence."
[22] On extra-judicial confession has reiterated that an extra-judicial confession was used against its maker but, as a matter of caution, advisable for Court to look for corroboration with other evidence on record and has relied on a decision of the Apex Court in Devi Lal v. State of Rajasthan, reported in 2019 (1) Crimes 8 and observed as under:
"9.It is true that an extra judicial confession is used against its maker but as a matter of caution, advisable for the Court to look for a corroboration with the other evidence on record. In Gopal Sah v. State of Bihar MANU/SC/8348/2008: 2008 (17) SCC 128, is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent circumstances, to rely on it, for the purpose of recording a conviction. In the instant case, it may be noticed that there are no additional cogent circumstances on record to rely on it. At the same time, Shambhu Singh (PW-3), while recording his statement under Section-164 Code of Criminal Procedure, has not made such statement of extra judicial confession (Exh.D-5) made by accused Babu Lal. In addition, there are no other circumstances on record to support it."Page 13 of 70
[23] Mr. Sarkar, learned senior counsel apart from all these references, has relied yet another case of our own High Court in Special Judge (POCSO), North Tripura, Dharmanagar v. State of Tripura and Ors, reported in (2020) 1 TLR 277, wherein, this Court has cited a decision of the Apex Court in Swami Shraddhananda alias Murali Manohar Mishra Vs. State of Karnataka reported in (2008) 13 SCC 767, wherein, the Apex Court evolved the principle of commuting death sentence by awarding a minimum fixed term sentence as a via media where it was found that the death penalty may be too harsh but life sentence with the possibility of remissions may not be sufficient. It was observed as under:
"65. Earlier in this judgment it was noted that the decision in Shri Bhagwan(supra) there is a useful discussion on the legality of remission in the case of life convicts. The judgment in Shri Bhagwan, in paragraph 22, refers to and quotes from the earlier decision in State of M.P. Vs. Ratan Singh (supra) which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayek Godse (supra). It will be profitable to reproduce here the extract from Ratan Singh:
"4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra, (1961) 3 SCR 440 where the Court, following a decision of the Privy Counsel in Pandit Kishori Lal v. King Emperor, AIR 1954 PC 64 observed as follows:
"Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for thesaid term. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
* * * * A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life".
The Court further observed thus:
"But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make Page 14 of 70 rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act......Under the said rules the order of an appropriate Government under Section 401, Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular termincluding remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.
The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release."
It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoner's death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life."
Further, in paragraph 23, the judgment in Shri Bhagwan observed as follows:
"In Maru Ram vs. Union of India, (1981) 1 SCC 107, a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar (Life Convict) vs. State of W.B. & Anr., (2000) 7 SCC 626, after referring to the decision of the case of Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, the court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitled the convict to be released automatically before the full life term if served. It was observed that though under the Page 15 of 70 relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose."
[24] In view of above submissions and reference placed by Mr. Sarkar, learned senior counsel, at the fag end, he has submitted that there were many lacunas or laches in the process of investigation and in the judgment of the trial Court as well as in the development of the chain of events during the trial and as such, the order of conviction and sentence is erroneous. More particularly, the present case does not fall under the category of rarest of the rare case warranting a death sentence and, is liable to be set aside and needs strapping interference of this Court and prayed for allowing the appeal.
[25] Mr. Samrat Kar Bhowmik, learned senior counsel assisted by Mr. S. Bol, appearing for the convict-appellant Kastarai Tripura while adopting the arguments of Mr. Subrata Sarkar, learned senior cousnel has submitted that the learned trial Court committed gross error in passing the impugned judgment and order of conviction. The learned Court below in relying upon the purported witnesses in the present case whose evidences were completely untrustworthy, improbable and were not legally tenable has committed gross error. According to learned senior counsel, the charge was not framed according to the law causing grave prejudice to the appellants.
[26] Mr. Kar Bhowmik, learned senior counsel has placed in quick submissions and tried to persuade this Court that PW-1, the father of the victim stated in his deposition that they brought Sri Kastarai Tripura, the appellant herein to the house of Smt. Swapna Tripura for the purpose of interrogation whereas, the other PWs did not state that the appellant visited the house of Smt. Swapna Tripura which creates much doubt in the prosecution case.
[27] The incident took place on 05.12.2018 but, PW-2 and PW-3 were produced by the I.O. before the Magistrate for recording statement under Section-164(5) of Cr. P.C. on 29.01.2019 i.e. after elapse two months. But, there was no explanation for this inordinate delay thus, creating much doubt Page 16 of 70 about the genuineness of the prosecution case. PW-4, who is the teacher in charge of Krishnakanta Para S. B. School could not give a clear explanation that from which source he got the actual date of birth of the victim which had been entered in the school register. But the Court below did not consider this aspect making the judgment and order of conviction liable to be set aside.
[28] PW-32, the Investigating Officer of the present case recorded the statements of PW-6 under Section-161 of Cr. P.C. in Bengali, but from the bare perusal of the deposition of PW-6 it is evident that he had no knowledge of Bengali language. As such, it is quite obvious that the I.O. of the case without examining the PW-6 recorded his statement under Section-161 of Cr. P.C. During his deposition, PW-32 did not put any explanation about the same making his statement inadmissible.
[29] PW-8, ASI of police in his deposition stated that on 05.12.2018 while PW-8 along with SDPO, Amarpur, SDM Karbook, Subdivision, reached at the spot, they found Bhanjoy Tirpura who was already detained by the local people but, PW-8 did not clearly state in his deposition that on what basis he along with SDPO and SDM went to the alleged spot of incident.
[30] PW-16, PW-22 and PW-25 are the medical officers who conducted the post mortem examination over the body of deceased and as per the medical report of PW-16; no visible injury was found over the external genital area of the deceased. Moreover, the hymen of the deceased was torn but that was old and healed, PW-24, the scientific officer from TSFLS, who submitted the SFSL report of the vaginal swab of the deceased opined that, there were no seminal stain/spermatozoa found in the examined samples. A bare perusal of the report of the expert, it was luminous that there was no incident of rape. But the learned Court below did not consider the same and convicted the appellant herein.
[31] PW-13, PW-17, PW-18, PW-19 and PW-28 who were the co- villagers of the deceased conjointly searching for her and in this regard the PWs went to the house of PW-2 and PW-3 who told them that in the morning they met the deceased on the road along with Kastarai Tripura and Bhanjoy Page 17 of 70 Tripura. Thereafter, the aforesaid PWs visited the house of Kastarai and Bhanjoy and both of the alleged accused were being detained and brought before the house of Sri Nalin Tripura. PWs also stated that during interrogation, Kastarai Tripura somehow managed to fleed away but Bhanjoy was detained by the villagers. On being informed by the villagers the police arrived to the place where Bhanjoy Tripura was being detained and tortured by the villagers and was threatened with dire consequence to confess before the above mentioned PWs that he and Kastarai Tripura had committed the crime. But the Court below did not consider this inadmissible piece of extra-judicial confession making the impugned judgment and order of conviction liable to be set aside.
[32] He has further argued that as per the Evidence Act, confession made before the police officer is not admissible. From a bare perusal of records it would be evident that though the Magistrate was available during the tenure of interrogation of the accused but, he did not take any active part during the process of confession of the accused. As such it can well be presumed that confession made by the accused was not free from inducement threat or coercion and it was hit by Section-26 of the Evidence Act. There is no express or implied mens-rea behind the alleged offence and at no point of time during the entire process of investigation, inquiry or trial there was any endeavour made by the prosecution to find out any motive which resulted in the alleged offence and hence, the order of conviction needs to be interfered with by this Court.
[33] For the purpose of reference, Section-26 of the Evidence Act may be extracted hereinbelow:
"Section-26: Confession by accused while in custody of police not to be proved against him.--No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate1, shall be proved as against such person.
[Explanation.--in this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George 3[***] or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)4]."Page 18 of 70
[34] He relied upon a decision of the Apex Court in Sahadevan and Another v. State of Tamil Nadu, reported in (2012) 6 SCC 403, where, the Apex Court has observed as under:
"In Arjun Marik v. State of Bihar [1994 Supp.(2) SCC 372], this Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded.
Even in the case of State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353], this Court held that merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court.
39. Now, we would deal with the contention of the appellant that the prosecution has not been able to establish even the time of death of the deceased. According to the prosecution, the deceased had been murdered on 9th July, 2002 at about 11 p.m. but according to the post mortem report Exhibit P10, the deceased was murdered on 10th July, 2002, i.e. between 10 and 11 a.m. The post mortem report was recorded on 11th July, 2002 at 2.00 p.m. stating that the deceased was murdered before 27 to 28 hours. Absence of kerosene oil on the body of the deceased and articles taken into custody from the body of the deceased, the contradictions in the statement of the witnesses, the fact that PW2 has not supported the case of the prosecution and PW5 not being able to even identify the accused, lend support to the arguments raised on behalf of the accused and create a dent in the story of the prosecution. Not on any single ground, as discussed above, but in view of the cumulative effect of the above discussion on all the aspects, we are unable to sustain the judgment of the High Court. In our opinion, the prosecution has failed to prove its case beyond reasonable doubt."
[35] He has further placed his reliance on a decision of the Gauhati High Court in State of Assam v. Manik Chandra Dey, reported in 1989 Crl. L.J. 1495 Page 19 of 70 "6. Upon hearing the lengthy arguments of the learned Counsel for the appellant as well as the learned public prosecutor for the State, we find a considerable force in the argument of Mr. A. Roy, the learned Counsel for the appellant. Admittedly, there is no eye witness to the occurrence. The prosecution relies on the extra-judicial confession made by the accused to P. Ws. 2, 3 and 4 and also the confessional statement that was recorded by the Magistrate while the accused-appellant, was produced before him. We have also considered the various decisions placed before us by the learned Counsel of both the parties. As regards the confessional statement, we accept the submission of Mr. Roy to the effect that while examining the accused under Section 313, Cr. P.C., the learned trial court did not put him any question with regard to his confessional statement stated to have been made before the Magistrate. Therefore, on taking the ratio of the aforesaid decisions and more particularly in "Sharad" 1984 Cri LJ 1738 (supra) we may safely hold that the circumstances which were not put to the appellant in his examination under Section 313, Cr. P.C. have to be completely excluded front consideration. Therefore, we are of the opinion that the prosecution cannot take any aid of the confessional statement of the appellant stated to have been recorded by the learned Magistrate. While eliminating the confessional statement of the appellant from consideration, we next consider as to whether the extra-judicial confession could be accepted as made voluntarily and freely by the appellant to P. Ws. 2, 3 and 4. In this regard also we fully endorse the submissions made by Mr. Roy with regard to the extra judicial confession relied on by the prosecution to prove the guilt of the accused. It is undoubtedly a weak piece of evidence and if the same is lacking probability, it would not be difficult to reject them. Following the decision of Jagta v. State of Haryana 1974 Cri LJ 1010 (SC) (supra) rendered by their Lordships of the Supreme Court, we must hold that the prosecution had failed to establish by cogent evidence what were the exact words used by the accused while making the extra-judicial confession to P.Ws. 2, 3 and 4. The extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, and the reason or motive for confession. In this case, we observed the stereo-type recording of extra- judicial confession without knowing the exact words used by the appellant and about his rational motive for such confession. There is no other corroborative evidence to support the testimony of the witnesses as regards the extra-judicial confession. The evidence discloses that the appellant was tied up with the leg of a cot and he was not in mental equilibrium. Therefore, the possibility of extracting the extra-judicial confession from the mouth of the appellant by the witnesses cannot be ruled out. If such possibility occurs which creates a doubt, the accused must get the benefit of that doubt. We, therefore, cannot agree with the submission of Mr. Paul Mazumdar, the learned Public Prosecutor that the extra-judicial confession was made freely and voluntarily by the appellant to P.Ws. 2, 3 and 4. There is no other material evidence placed by the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, in absence of such cogent and material evidence on record we are unable to accept the findings of the learned trial Court in holding the appellant Page 20 of 70 guilty under Section 302, I.P.C. to cause the death of his wife by strangulating her in the neck with his hands. The post mortem report speaks about three injuries. They are namely (a) abrasions over the forehead - 1" X 1/8", (b) abrasions over the left breast I" X 1/6" and (c) abrasions over the left cheek 1/2" X 1/4". That apart, the autopsy surgeon found two bruises, one over the right side of the neck and the other on the left side of the neck. Although the medical evidence speaks about the death of the victim due to strangulation by manual pressure, in absence of cogent and material evidence on record it cannot be held that the appellant was the author of the offence. In the absence of cogent and material evidence, a doubt is created and the appellant is entitled to the benefit of that doubt."
[36] Mr. Kar Bhowmik, learned senior counsel has submitted that in cases depending largely upon circumstantial evidence there is always a danger that conjecture or suspicion may take the place of legal proof and in this regard he has placed his reliance on a decision of the Apex Court in Jaharlal Das v. State of Orissa, reported in (1991) 3 SCC 27, wherein the Court has observed infra:
"4. No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned. Invariable in such cases a person last seen with the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed to take the place of proof. With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced.
8. As already mentioned this case rests purely on circumstantial evidence. It is well-settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions:
1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;
iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
In the leading case Hanumant and Another v. The State of Madhya Pradesh, [1952] SCR 1090 it is also cautioned thus: "In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof. It is therefore right to Page 21 of 70 remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
Mahajan, J., as he then was, has also aptly referred to a passage containing the warning addressed by Baron Alderson to the Jury in Reg v. Hodge, [1838] 2 Lew 227 which is stated as under;
"The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matter, to over- reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
In Dharam Das Wadhwani v. State of Uttar Pradesh, [1974] SCR 607 it was held that " unlike direct evidence the indirect light circumstances may throw may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. " In Jagta v. State of Haryana, [1975] 1 SCR 165 it was held that "The circumstances that the accused could not give trustworthy explanation about the injuries on his person and about his being present on the scene of occurrence are hardly sufficient to warrant conviction.
[37] On the point of confession of the co-accused, discussion of Section-30 of the Indian Evidence Act is very much essential and it may be extracted herein below:
Section-30: Consideration of proved confession affecting person making it and others jointly under trial for same offence.--When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Confession of co-accused: Although confession of co-accused is not substantive evidence, it can be relied on if it is voluntary and properly recorded and other evidence sufficiently supports the prosecution case and if the confession has no non-corroborative factor and no serious Page 22 of 70 contradictions, Mohd. Jamiludin Nasir v. Stae of W.B. (2014) 7 SCC 443: (2014) 3 SCC (Crl) 230.
As a result of provisions contained in Section-30, confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by court is evidence; circumstances which are considered by court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of provisions of Section 30, fact remains that it is not evidence as defined by Section 3. Result, therefore is, that is dealing with a case against an accused person, court cannot start with confession of a co-accused person; it must begin with other evidence adduced by prosecution and after it has formed it opinion with regard to quality and effect of said evidence, then it is permissible to turn to confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Law so laid down has always been followed except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused, Surinder Kumar Khanna v. Directorate of Revenue Intelligence, (2018) 8 SCC 271."
[38] On the point of confession of the co-accused, he has further relied upon a decision of the Apex Court in Mahabir Biswas and Another v. State of W.B., reported in (1995) 2 SCC 25, wherein, the Court has observed as under:
"8. A confession, before it can be acted upon, must be established to have been voluntarily made and is true. As regards the evidentiary value of a confession, which passes the above two tests, against the maker thereof, this Court has held, in Sarwan Singh Rattan Singh v. State of Punjab:
"......in law it would be open to the court to convict him on his confession itself though he has retracted his confession at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case."
[39] He has further relied on a decision of the Apex Court in Pancho v. State of Haryana, reported in (2011) 10 SCC 165, wherein, the Apex Court has held as under:
"16. Extra-judicial confession made by A1-Pratham is the main plank of the prosecution case. It is true that an extra- judicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. In Gopal Sah Page 23 of 70 v. State of Bihar1, this court while dealing with an extra-judicial confession held that an extra-judicial confession is on the face of it, a weak evidence and the courts are reluctant, in the absence of chain of cogent circumstances, to rely on it for the purpose of recording a conviction. We must, therefore, first ascertain whether extra-judicial confession of A1-Pratham inspires confidence and then find out whether there are other cogent circumstances on record, to support it.
22. Articles which are stated to have been discovered are easily available in the market. There is nothing special about them. Belated discovery of these articles raises a question about their intrinsic evidentiary value. Besides, if as contended by the prosecution, the accused wanted to sell parts of the tractor, it is difficult to believe that they would preserve them till 1/8/1999. The evidence relating to discovery of these articles must, therefore, be rejected.
23. As against A2-Pancho, the prosecution is relying mainly on the extra-judicial confessional statement of A1-Pratham. The question which needs to be considered is what is the evidentiary value of a retracted confession of a co-accused?
25. This court further noted that (Kashmira Singh case, AIR p.160, para-10):
"10......cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the judge may call in 2 AIR 1952 SC 159 3 76 Indian Appeals 147 4 38 Cal. 559 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.
[Emphasis in original]
29. Applying the above principles to the case on hand, we find that so far as A2-Pancho is concerned, except the evidence of alleged belated discovery of certain articles at his instance, which we have already found to be doubtful, there is no other evidence on record to connect him to the offence in question. When there is no other evidence of sterling quality on record establishing his involvement, he cannot be convicted on the basis of the alleged extra-judicial confession of the co- accused A1-Pratham, which in our opinion, is also not credible. Once A1-Pratham's extra- judicial confession is obliterated and kept out of consideration, his conviction also cannot be sustained because we have come to the conclusion that the alleged discovery of articles at his instance cannot be relied upon. There is thus, no credible evidence to persuade us to uphold the conviction of A1-Pratham."
[40] On the point of leading to the recovery, learned senior counsel has placed his reliance on a decision of the Apex Court in Dattatraya Datta Page 24 of 70 Ambo Rokade v. State of Maharashtra, reported in (2020) 14 SCC 290, wherein, the Apex Court observed inter alia:
"89. The question is, whether death sentence imposed on the accused- appellant for offences under Section 302 should be confirmed or be commuted to life sentence, as argued on behalf of the accused- appellant.
9. In Rajesh Kumar (supra), the accused was convicted of assault and murder of two helpless children in the most gruesome manner. This Court held that death sentence could not be inflicted, reiterating that life imprisonment was the rule and death sentence an exception only to be imposed in the "rarest of rare cases" and for "special reasons" when there were no mitigating circumstances.
95. Section 235 (2) of the CrPC is not a mere formality. It is obligatory on the part of the learned trial Judge to hear the accused on the question of sentence and deal with it. To quote Bhagwati J. in Santa Singh vs. State of Punjab (SCC pp. 194-96, paras-2-4):
"2. ......This provision is clear and explicit and does not admit of any doubt. It requires that in every trial before a court of sessions, there must first be a decision as to the guilt of the accused. The court must, in the first instance, deliver a judgment convicting or acquitting the accused. If the accused is acquitted, no further question arises. But if he is convicted, then the court has to "hear the accused on the question of sentence, and then pass sentence on him according to law". When a judgment is rendered convicting the accused, he is, at that stage, to be given an opportunity to be heard in regard to the sentence and it is only after hearing him that the court can proceed to pass the sentence.
3. This new provision in Section 235(2) is in consonance with the modern trends in penology and sentencing procedures. There was no such provision in the old Code. Under the old Code, whatever the accused wished to submit in regard to the sentence had to be stated by him before the argumentss concluded and the judgment was delivered. There was no separate stage for being heard in regard to sentence. The accused had to produce material and make his submissions in regard to sentence on the assumption that he was ultimately going to be convicted. This was most unsatisfactory. The legislature, therefore, decided that it is only when the accused is 3 (1976) 4 SCC 190 convicted that the question of sentence should come up for consideration and at that stage, an opportunity should be given to the accused to be heard in regard to the sentence. Moreover, it was realised that sentencing is an important stage in the process of administration of criminal justice- as important as the adjudication of guilt-and it should not be consigned to a subsidiary position as if it were a matter of not much consequence. It should be a matter of some anxiety to the court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the court.Page 25 of 70
.....The reason is that a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances-extenuating or aggravating- of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobreity and social adjustment, the emotional and mental condition of „the offender, the prospects for the rehabilitation of the offender, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused."
96. In Santa Singh (supra), Bhagwati, J. set aside the sentence of death and remanded the case to the Sessions Court with a direction to pass appropriate sentence after giving an opportunity to the petitioner in the aforesaid case of being heard with regard to the question of sentence, in accordance with the provisions of Section 235(2) CrPC.
97. In Dagdu and Others v. State of Maharashtra 4, a three- Judge Bench of this Court referred to Santa Singh (supra) and held that the mandate of Section 235(2) CrPC had to be obeyed in letter and spirit. Chandrachud, J. held:
"79. ... The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court.
98. In Machhi Singh & Others v. State of Punjab 5, this Court held:-
"38. ... (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 Page 26 of 70 to be struck between the aggravating and the mitigating circumstances before the option is exercised."
100. In Ajay Pandit and Another v. State of Maharashtra 7, this Court held:-
"47. Awarding death sentence is an exception, not the rule, and only in the rarest of rare cases, the court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235(2) CrPC."
In Mohinder Singh v. State of Punjab8, this Court held:-
"22. The doctrine of "rarest of rare" confines two aspects and when both the aspects are satisfied only then the death penalty can be imposed. Firstly, the case must clearly fall within the ambit of "rarest of rare" and secondly, when the alternative option is unquestionably foreclosed. Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose.
23. In life sentence, there is a possibility of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore, puts an end to anything to do with life. This is the big difference between two punishments. Thus, before imposing death penalty, it is imperative to consider the same. The "rarest of rare" dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment would be pointless and completely devoid of any reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the "rarest of rare" doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme".
102. In Panchhi and Others v. State of U.P. 9, this Court observed:-
"20. ... No doubt brutality looms large in the murders in this case particularly of the old and also the tender-aged child. It may be that the manner in which the killings were perpetrated may not by itself show Page 27 of 70 any lighter side but that is not very peculiar or very special in these killings.
106. Similarly, in Surendra Pal Shivbalakpal v. State : the absence of any involvement in any previous criminal case was considered to be a factor to be taken into consideration for the purposes of awarding the sentence to the appellant therein. This Court held:
"13. The next question that arises for consideration is whether this is a "rarest of rare case"; we do not think that this is a "rarest of rare case"
in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case. We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment."
107. In Mukesh and Another v. State (NCT of Delhi) and Others14, a three-Judge Bench of this Court considered the earlier judgments of this Court referred to above and deemed it appropriate to give opportunity to the accused to file affidavits to bring on record mitigating circumstances for reduction of the sentence.
108. The accused-appellant was produced before the Trial court for hearing under Section 235(2) of the Code of Criminal Procedure the day after the judgment and order of his conviction was passed. The accused- appellant, it appears, did not make any submission on the point of sentence. This is recorded by the Trial Court. The 13 (2005) 3 SCC 127 14 (2017) 3 SCC 717 accused-appellant only pleaded „not guilty‟ submitting that there was no eye witness to the crime. The Trial Court has recorded that Advocate Waghachadu, the learned Advocate appearing for the accused-appellant submitted that "considering the fact that accused is 53 years old leniency be shown to accused" in awarding death sentence.
109. The Trial Court has accepted the submission of the learned Special Public Prosecutor that there were no mitigating circumstances to award life imprisonment instead of death sentence. The Special Public Prosecutor submitted that the offences had been committed with extreme depravity.
110. It may be pertinent to note that in awarding death sentence, the trial court referred to and relied upon two judgments of this Court of affirmation of death sentence, that is, Rajendra Prahladrao Wasnik v. State of Maharashtra 15 and Mohd. Manan @ Abdul Mannan v. State Page 28 of 70 of Bihar 16. On review of both the judgments, death sentence has been commuted to imprisonment for life.
111. In Haru Ghosh vs. State of West Bengal 17, this Court commuted death sentence to life imprisonment in the case of a dastardly murder of two helpless persons for no fault of theirs. This Court, however, in commuting death sentence took into consideration the following factors:-
"i. There was no pre-meditation on the part of the accused;
ii. The act was on the spur of the moment;
iii. The accused was not armed with any weapon;
iv. It was unknown under what circumstances the accused had entered the house of the deceased and what prompted him to assault the boy; and v. The cruel manner in which the murder was committed could not be the guiding factor and the accused himself had two minor children."
112. In Haru Ghosh (supra), this Court observed, "....the cruel manner in which the murder was committed and the subsequent action on the part of the accused in severing the parts of the body of the deceased, do not by themselves become the guiding factor in favour of death sentence."
115. Under the Indian Penal Code and, in particular, Section 299 thereof, whoever causes death by doing an act either with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely, by such act, to cause death, commits the offence of culpable homicide.
119. The death of the deceased victim was not caused under any provocation, not to speak of sudden provocation. No such defence has been taken by the accused-appellant. Nor is it anybody‟s case that the death was caused in legitimate exercise in good faith of any right of the accused-appellant, whether of private defence or otherwise. The death has been caused without any provocation.
122. Considering the totality of the evidence before us, we uphold the conviction of the accused-appellant. However, in view of the evidence of the post mortem report of Dr. Bhusan Jain, we deem it appropriate to modify the sentence by reducing the same to imprisonment for life.
126. Counsel for the accused-appellant submitted that the brutality of the crime and age of the victim was not ground enough to inflict death sentence. Learned counsel submitted that the petitioner had been convicted on circumstantial evidence, based on faulty investigation.
130. Considering the nature of the crime against a five year old child, the Trial Court imposed the extreme penalty of death without deciding the question of whether there was no alternative to imposing death Page 29 of 70 sentence on the accused-appellant. There is no finding that in the absence of death sentence, the accused- appellant would continue to be a threat to the society. The question of whether the accused-appellant could be reformed, had not at all been considered.
132. For effective hearing under Section 235(2) of the Code of Criminal Procedure, the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against death sentence, by placing mitigating circumstances before the Court. This has not been done. The Trial Court made no attempt to elicit relevant facts, nor did the Trial Court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the petitioner has been denied an effective hearing."
[41] He argued that registration of FIR is mandatory under Section- 154 of Cr. P.C. If the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation and this is the general rule and must be strictly complied with. In this circumstances, learned senior counsel has placed reliance on a decision of the Apex Court in Lalita Kumari v. Government of Uttar Pradesh, reported in (2014) 2 SCC 1, wherein, the Court has observed thus:
"Significance and Compelling reasons for registration of FIR at the earliest:
93. The object sought to be achieved by registering the earliest information as FIR is inter alia twofold: one, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment etc., later.
96. The underpinnings of compulsory registration of FIR is not only to ensure transparency in the criminal justice delivery system but also to ensure „judicial oversight‟. Section 157(1) deploys the word „forthwith‟.
Thus, any information received under Section 154(1) or otherwise has to be duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the subordinate judiciary.
119. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a Page 30 of 70 sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
[42] On the point of examination under Section-313 of Cr. P.C. that long series of facts cannot be asked and in this regard he has relied upon a decision of the Gauhati High Court in Gopal Goraik v. State of Assam, reported in 2011 (2) GLT 425, wherein, the Court has observed as under:
"19. The basic purpose of Section-313 Cr. P.C. as it stands today is to give an opportunity to the accused to "personally explain the circumstances appearing against him in the evidence and that is why the word "personally" has now found a place in the present Section-313 Cr. PC. This is significant because his statement can be taken into consideration in judging his innocence or guilt.
20. In Tara Singh v. State of Punjab, reported in AIR 1951 SC 441, in the context Court had stated that it cannot stress too strongly the importance of observing faithfully and fairly the provisions of Section- 342 of the Code and it is not sufficient compliance to string together a long series of facts and ask the accused what he had to say about them. Bearing in mind the aim and object of the section, which is to afford a fair and proper opportunity of explaining the circumstances which appeared against him, logically and rationally, the questioning must be done in such manner and in such a form which even an ignorant and illiterate person can appreciate and understand. Even otherwise, an accused would be somewhat perturbed when he is facing charge and, therefore, fairness demands that each material fact would be put simply and separately. The Apex Court also noted that every error or omission to record the statement in that behalf would not necessarily vitiate a trial because errors of this type fall within the domain of curable irregularities. The fall out of such omission or errors in each case depends upon the degree of error and whether prejudice had been occasioned or is likely to have occasioned.
23. In Ajay Singh (supra), the Supreme Court, in paragraphs 13 and 14 stated thus:Page 31 of 70
"13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
14. The word "generally" in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature of the general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused‟s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section-313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.
26. In view of what has been stated herein above, we are of the opinion that the examination of the accused appellant under Section-313 Cr. P.C., in the facts and circumstances of the case, do not satisfy the requirement of the section. Accordingly, conviction recorded and sentence awarded are hereby quashed. The matter is remanded to the learned trial Court with a direction that the learned trial Court in accordance with the underlying principles of Section-313 Cr. P.C., shall put all the circumstances appearing against the accused appellant to him to enable him to explain all opportunity to adduce evidence, if he wishes, in his defence. The learned trial Court is directed to complete the trial of the case within a period of 2 months from today. We also quash the statements of the accused appellant recorded earlier under Section-313 Cr. P.C. The learned trial Court would dispose of the case after hearing the parties.
[43] Mr. Kar Bhowmik, learned senior counsel regarding parameters set for awarding death sentence has relied upon a decision of the Apex Court in Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684, wherein, the Court has held thus:
"15. The principal questions that fall to be considered in this case are:
(i) Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional.Page 32 of 70
(ii) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Sec, 354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and un-trammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life.
[44] He relied upon a decision of the Apex Court in Machhi Singh & Ors v. State of Tamil Nadu, reported in 1983 (3) SCC 470, wherein, the Court has held thus:
"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-in-no-case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by 'Killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entrain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:
I. Manner of Commission of Murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,
(i) When the house of the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.
Page 33 of 70(iii)When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.
II. II Motive for Commission of murder When the murder is committed for a motive which evince total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust. (c) a murder is committed in the course for betrayal of the motherland.
III Anti Social or Socially abhorrent nature of the crime:
35. (a) When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them with a view to reverse past injustices and in order to restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
IV. Magnitude of Crime:
36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
V Personality of Victim of murder:
37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder. (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.
38. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentences arises. The following propositions emerge from Bachan Singh's case:
(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;Page 34 of 70
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration alongwith the circumstances of the 'crime'.
(iii)Life imprisonment is the rule and death sentence is an exception. In other words 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.
39. In order to apply these guidelines inter-alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed here in above, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so."
[45] In view of the submissions made, Mr. Kar Bhowmik, learned senior counsel finally contended that the prosecution has not made out a case beyond reasonable doubt and the trial Court judgment stands with negative mind and the doubts upon investigation and laches committed more so, prosecution not made out a rarest of rare case for death sentence and prayed to set aside the judgment and sentence and allow the appeal.
[46] On the other hand, Mr. Ratan Datta, learned Public Prosecutor appearing for the respondent-State has submitted that the prosecution has successfully proved the charges against the accused persons to the hilt and there is no iota of doubt about the commission of the crime by the accused persons. He has further submitted that though there is no direct evidence of the Page 35 of 70 rape and murder of the deceased girl by the accused persons but, the circumstantial evidence i.e. last seen together of the victim and the accused persons, extra judicial confession of the accused persons before the villagers and the discovery of the dead body of the victim on the basis of the confession made by the accused persons, has established the offence against the accused persons beyond all reasonable doubt.
[47] He has further submitted that all the PWs have been sufficiently cross examined by the defence but, no material infirmity has come out in the cross examination so as to disbelieve their evidence. Further, the medical evidence is also clear about the death of the deceased being homicidal in nature. He has further submitted that the accused Kastarai is already facing another murder trial for killing his uncle brutally and the said case is pending in the Court of the learned Addl. Sessions Judge, Gomati, Udaipur and is in the final stage of disposal and further clarified that the present case falls under the category of rarest of rare case and has prayed for inflicting the penalty of death on the accused persons.
[48] In support of his case, Mr. Datta, learned P.P. has submitted that medical evidence not corroborating the alleged forced sexual intercourse does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix and narration of events in the FIR and has placed his reliance on a decision of the Apex Court in B.C. Dev alias Dyava v. State of Karnatak, reported in (2007) 12 SCC 122, wherein the Court has observed as under:
"15. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.
20. The Trial Court as well as the High Court have recorded the finding of guilt of the accused based upon proper appreciation of the evidence led by the prosecution in this case. In view of the aforesaid discussion, Page 36 of 70 we do not find any justified and justifiable ground to interfere with the conviction and sentence awarded by the Trial Court and confirmed by the High Court. The appeal is, therefore, dismissed."
[49] If prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefits thereof where none reasonably exists. Delay in lodging the FIR also cannot be used as a ritualistic formula for doubting the prosecutioncase. In this context he has relied upon a decision of the Apex Court in State of Punjab v. Ramdev Singh, reported in (2004) 1 SCC 421, where, the Court has observed thus:
"7. Merely because of doctor's hypothetical and opinionative evidence that the victim was accustomed to sexual intercourse, prosecution version of rape was not to be discarded.
8. In response, learned counsel for the accused supported the judgment submitting that reasonings indicated by the High Court are on terra firma, more particularly when the victim's testimony is completely unreliable because it is at great variance with the medical evidence. Residually, it is submitted that the judgment is one of acquittal and after a long lapse of time the jurisdiction under Article 136 should not be exercised.
9. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as done by the High Court in the present case."
[50] He mainly argued on circumstantial evidence, last seen theory, extra judicial confession made before the police in presence of Magistrate and leading to discovery. He has submitted that the complainant Tarin Kumar Tripura has an FIR 05.12.2018 that at about 9.00 am his younger sister, the deceased herein, took the Aadhar card of her father and went to Krishna Kanta Para S. B . School. When she did not return home till 4.00pm they started searching for her and subsequently, they came to know that after 9.30am, two Page 37 of 70 minor girls i.e. PWs.2 and 3 of their village had seen his sister and the accused persons at Bairagi Dokan Dhanyabari road and when they went to a little distance they heard the girl shouting. That at about 6.30am when the complainant himself along with some other people of their village interrogated Bhanjoy Tripura, it has been revealed that at about 10.00am they had forcefully committed rape upon his sister and subsequently, killed her and buried her under the earth in the jungle.
[51] In this pretext, the depositions of PWs.2 and 3 are very vital and needs to be discussed. He has submitted that PW-2, Miss Saloni Tripura, stated that on the fateful day at about 9.00am she and Swapna were going to the forest to dig for potato. At that time on the way they saw Bhanjoy and Kastarai along with the victim who was in school dress. They exchanged a few words and then left. After a short while they heard scream/shouting of the victim girl but, they did not advance to the place of the scream. In the afternoon when the victim girl being searched, they disclosed that they had seen her in the company of Kastarai Tripura and Bhanjoy Tripura and also heard the shriek. PW-3, Miss Swapna Debi Tripura, deposed in the same line as that of PW-2. Thus, the statements of PWs 2 and 3 corroborated together regarding the last seen theory.
[52] He has further submitted that the evidence of last seen by PWs 2 and 3 could not be shaken in cross-examination by the defence. Therefore, there is no reason to disbelieve that last seen evidence of PWs 2 and 3 insofar as they have stated to have seen the victim in the company of the accused persons for the last time before the recovery of her dead body on the basis of confession of accused Bhanjoy Tripura.
[53] On extra judicial confession he stressed upon the deposition of PW-6 who, has stated that after the incident he -along with other villagers went to the house of the accused-persons and brought them in the house of Lalin Tripura and at that time, Kastarai fled away. Bhanjoy Tripura confessed about the incident to the effect that he and Kastarai committed rape on his sister after taking her to the jungle and thereafter killed her and concealed her body in the Page 38 of 70 marshy land. In cross-examination of PW-6 nothing material transpired to dent the credibility of his evidence insofar as the last seen evidence and leading to discovery of the dead body of the victim on the extra judicial confession of accused Bhanjoy Tripura, is concerned.
[54] PWs-7, 8, 11, 13, 17, 18, 19, 20, 27, 28, has submitted in the same line as that of PW-6 regarding extra judicial confession. They have stated that after the incident occurred they have rushed to the house of the accused- persons and subsequently, accused Bhanjoy Tripura has admitted the fact that they raped and killed the victim girl and thereafter concealed the dead body beneath the earth. So, there is corroboration between the statements of the witnesses regarding the confession of the accused-persons.
[55] In this regard, Mr. Amit Kumar Karmakar, DCM, Karbook, PW- 29 has submitted that on 23.12.2018 in his presence accused Kastarai Tripura confessed that he and his partner kidnapped the victim girl when she was coming from her school and hereafter committed rape on her and killed her and concealed the dead body. Police recorded two separate confessional statement of Kastarai Tripura and took his signature therein and he proved his signature marked as Exbt.25.The accused person also disclosed that they could the place where they concealed the school bag of the deceased. Thereafter, he led them to that place and on his indication; the school bag of the victim was recovered under the earth where it was concealed by them.
[56] PW-31, Biswajit Paul, SDM, Karbook Sub-division who has deposed that on 06.12.2018 as per requisition of Nutanbazar P.S. he went to East Manikya Dewanbari in connection with a rape and murder case. One accused person Bhanjoy Tripura was detained and he confessed before him and others that he and another Kastarai Tripura kidnapped a girl of class VIII and committed rape on her and thereafter, assaulted her to death and concealed her dead body in a muddy place. As per the statement of Bhanjoy Tripura they went to the spot led by the said accused person where they committed the crime and as per his indication the dead body of the deceased recovered from the mud.
Page 39 of 70[57] Mr. Datta, regarding last seen theory and extra judicial confession has placed his reliance on decision of this Court in Billaram Reang v. State of Tripura, reported in (2017) 2 TLR 160, wherein, this Court has held thus:
"11. The theory of "last seen together" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the court to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. However, it is not prudent to base conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. The principle is elaborately explained by the Apex Court in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 in the following terms:
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the CRIMINAL APPEAL (J) NO.40 OF 2013 Page 10 of 22 rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd."
24. There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, Page 40 of 70 provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt."
12. Since the prosecution has clearly established that the appellant was last seen with the deceased in the house they were staying together on the fateful night and that the body of the deceased was also found in the well of the latrine of the appellant, the burden is upon him to prove as to what happened to the deceased after she entered his house inasmuch as her whereabouts thereafter are facts specially within his knowledge. He never offered any explanation even in his examination under Section 313CrPC as to how the dead body of the deceased was found in the well of his latrine, which was not easily accessible to strangers. As he has failed to do so, it must also be held that he has failed to discharge the burden cast upon him by Section 106, Evidence Act. This circumstance, therefore, provides one ofthe missing links in the chain of circumstances which could prove the guiltof the appellant beyond the shadow of doubt.
13. This then takes us to the evidentiary value of the extra-judicial confessions made by the appellant to some of the prosecution witnesses. PW-2 deposed that when they returned from the Club, the appellant was in a drunken condition and was otherwise a habitual drunker and also used to make nuisance in the house all the time. She further deposed that he confessed to her that he killed the deceased; that he struck her with a branch of tree and her gold necklace was also missing, which he threw in the latrine. In her cross-examination, she admitted that she was not an eye-witness to the killing, but affirmed that he confessed to her. Unfortunately for the prosecution, the extra-judicial confession made by the appellant toPW-2, who happens to be his wife, for what it‟s worth, is not admissible as it is hit by Section 122, Evidence Act. Therefore, no assistance can be derived from her statement by the prosecution to convict the appellant. However,PW-6 in his cross-examination, revealed that there was meeting in his courtyard and that on their asking, the appellant confessed that he committed the murder of the deceased. There is no evidence to show that this confession was made by the appellant before the police or in their presence. He further deposed in his cross that he told the daroga that the appellant confessed before them in the meeting at his courtyard. It is also interesting to note that PW-5, who is the elder sister of the deceased, deposed that the appellant confessed to them. In her cross-examination, she affirmed that the appellant confessed to them about the murder before the arrival of the police when the dead body was discovered in the latrine well and that he had stated to the police that the appellant confessed before them about the murder.
14. At this stage, it may be straightaway pointed out that the extrajudicial confession made before PW-10 by the appellant is not admissible in law and cannot, therefore, be acted upon since the prosecution could not establish that such confession was not made before or in the presence of the police. However, PW-11 deposed that the appellant told him that he killed the victim by a lathi and put her Page 41 of 70 dead body in the well of a latrine. The credibility of this statement could not be shaken by the defence in his cross-examination. This extra- judicial confession made to PW-11 was evidently not made in the presence of the police nor was any suggestion/denial/rebuttal made to that effect. The extra-judicial confession made by the appellant before PW-12 is, however, not admissible in evidence since the same was made before a police officer. Except for the extra-judicial confessions of PW- 2, PW-10 and PW-12, the credibility of the evidence ofPW-5, PW-6 and PW-11 could not be seriously impeached by the defence. True, extra-judicial confession is a weak piece of evidence in the sense that it cannot be made the basis of conviction. The principles in respect of evidentiary value and reliability of extra-judicial confession were reiterated by the Apex Court in R. Kuppusamy v. State represented by Inspector of Police, Ambeiligai, (2013) 3 SCC 322, which are in the following terms:
"8. That a truthful extra-judicial confession made voluntarily and without any inducement can be made a basis for recording a conviction against the person making the confession was not disputed before us at the hearing. What was argued by Ms Mahalakshmi Pavani, counsel appearing for the appellant, was that an extra-judicial confession being in its very nature an evidence of a weak type, the courts would adopt a cautious approach while dealing with such evidence and record a conviction only if the extra- judicial confession is, apart from being found truthful and voluntary, also corroborated by other evidence. There was, according to the learned counsel, no such corroboration forthcoming in the present case which according to her was sufficient by itself to justify rejection of the confessional statement as a piece of evidence against the appellant. Reliance, in support of the contention urged by the learned counsel, was placed upon the decisions of this Court in Gura Singh v. State of Rajasthan.
9. In Gura Singh case (supra), a two-Judge Bench of this Court was also dealing with an extra-judicial confession and the question whether the same could be made a basis for recording the conviction against the accused. This Court held that despite the inherent weakness of an extra-judicial confession as a piece of evidence, the same cannot be ignored if it is otherwise shown to be voluntary and truthful. This Court also held that extra-judicial confession cannot always be termed as tainted evidence and that corroboration of such evidence is required only as a measure of abundant caution. If the court found the witness to whom confession was made to be trustworthy and that the confession was true and voluntary, a conviction can be founded on such evidence alone. More importantly, the Court declared that courts cannot start with the presumption that extra-judicial confession is always suspect or a weak type of evidence but it would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful.Page 42 of 70
(Underlined for emphasis)
10. In Sahadevan case (supra) a two-Judge Bench of this Court comprehensively reviewed the case law on the subject and concluded that an extra-judicial confession is an admissible piece of evidence capable of supporting the conviction of an accused provided the same is made voluntarily and is otherwise found to be truthful. This Court also reiterated the principle that if an extra- judicial confession is supported by a chain of cogent circumstances and is corroborated by other evidence, it acquires credibility. To the same effect are the decisions of this Court in Balbir Singh v. State of Punjab and Jaspal Singh v. State of Punjab.
11. It is unnecessary, in the light of above pronouncements, to embark upon any further review of the decisions of this Court on the subject. The legal position is fairly well settled that an extra-judicial confession is capable of sustaining a conviction provided the same is not made under any inducement, is voluntary and truthful. Whether or not these attributes of an extra-judicial confession are satisfied in a given case will, however, depend upon the facts and circumstances of each case. It is eventually the satisfaction of the court as to the reliability of the confession, keeping in view the circumstances in which the same is made, the person to whom it is alleged to have been made and the corroboration, if any, available as to the truth of such a confession that will determine whether the extra-judicial confession ought to be made a basis for holding the accused guilty."
15. In the instant case also, the extra-judicial confession was made by the appellant before PW-5, PW-6 and PW-11 at the time of recovery of the dead body of the deceased. The testimonies of these witnesses in this behalf could not be discredited by the appellant in their cross- examination. No evidence is brought on record by the appellant to show that such confession was made by him before or in the presence of the police. In other words, the statements of PW-5, PW-6 and PW-11 with respect to the extra-judicial confession of the appellant will go a long way in forming one of the missing links in the chain of circumstances to prove his guilt. In fact, such confession also came to surface during the cross-examination by none other than his counsel, which only betrays the credibility and trustworthiness of these witnesses. There is absolutely no evidence to show that the extra-judicial confession of the appellant was made by means of inducement rounder duress. In our opinion, we cannot start with the presumption that extra-judicial confession is always suspect or is a weak type of evidence, after all, it would always depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful. Thus, in our opinion, the extra-judicial confession of the appellant made before PW-5, PW-6 and PW-11 does not suffer from any material deficiency, and they do inspires our confidence. That apart, the prosecution has proved the existence of motive with the appellant to cause harm, if not death, to the deceased. This can be seen from the Page 43 of 70 statement of PW-2, who deposed that the appellant did not like the deceased to stay with them as she did not allow her to do any work. Apparently, the indulgence shown by his wife (PW-2) to her sister became a source of resentment for the appellant. Thus, it could be safely said that the appellant had the motive for harming the deceased. The existence of motive can be helpful to the prosecution in a case based on circumstantial evidence. In the instant case, the existence of motive to harm the deceased by the appellant is another chain in the link of circumstantial evidence against him. The principle is reiterated by the Apex Court in Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654 in the following manner:
15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses. See Shivaji Genu Mohite v. State of Maharashtra1, Hari Shanker v. State of U.P. and State of U.P. v. Kishanpal.
17. However, the moot point is whether the failure of the prosecution to prove the seizure of the lathi at the instance of the appellant can otherwise destroy the substratum of their case. In our opinion, failure on the part of the prosecution to prove the recovery of the lathi at the instance of the appellant pales into insignificance, when the other circumstances found by us earlier are sufficient to form the completed chain pointing unerringly to the guilt of the appellant for the death of the deceased. This question reminds us of the following observations of the Apex Court in State ofPunjab v. Karnail Singh, (2003) 11 SCC 271:
"12. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is Page 44 of 70 better to let hundred guilty escapes than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh12.) The prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava13.) A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.14).] Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution15 quoted in State of U.P. v. Anil Singh16, SCC p. 692, para 17.) Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. (See: Shivaji Sahabrao Bobade v. State of Maharashtra (supra), State of U.P. v. Krishna Gopal and Gangadhar Behera v. State of Orissa."
[58] Mr. Datta, learned P.P. has drawn our attention to Exbt.10, 10/1 where, Bjanjoy Tripura discloses truth before the witnesses wherein he has submitted that he and Kastarai Tripura elder brother of his wife found the victim and started talking with her. While speaking, he dragged the victim forcibly to the nearby jungle and forcefully committed rape upon her in the jungle. After being raped, the victim was crying and stated that she would reveal the truth to her parents. Thereafter, Kastarai dragged the victim to the nearby poor and dipped her into it and assaulted her and struck at the back side of her head and buried her under the ground and he could unearth the truth where the dead body was concealed if he could have been taken to the place of occurrence.
[59] He further drawn our attention to the memorandum of FIR where Kastarai Tripura discloses that on the basis of his statement they have arrived at the place of occurrence in the isolated jungle by the said of the road of Purba Manikya Dewan through the path as pointed by Kastarai wherein he concealed the black coloured school bag of the victim under the earth.
Page 45 of 70[60] Regarding laches on the part of the investigating officer, he has submitted that in this issue, no question has been put to the defence for their reply. On the same pretext he has relied upon a decision of the Apex Court in Mahabir Singh v. State of Haryana, reported in 2001 7 SCC 148 wherein, the Court has held thus:
"It would have been desirable that the High Court did not make such strong remarks castigating the police and the subordinate judiciary, when the situation did not warrant such castigation. Judicial restraint should have dissuaded the High Court from making such unnecessary castigation. That apart the legal proposition propounded by the High Court regarding the use of Section 172 of the Code is erroneous. The whole exercise made by the High Court on that aspect was in the wake of what PW-1 said that he was questioned by the Investigating Officer on 12.10.1991. That might be so but the defence counsel used the statement as recorded on 14.10.1991 under Section 161 of the Code for the purpose of contradicting PW-1. The said portion of the evidence of PW-1 is extracted below:
I had also stated before the police that all the accused had further started beating Anand (Confronted with statement Ex.DA wherein except for the knife blow wielded by Ranbir there is no other role attributed to the remaining accused).
The omission in Ext.DA (the statement ascribed under Section 161 of the Code by PW-1 dated 14.10.1991) regarding the role attributed to A-2 to A-4 relates to a very material aspect and hence it amounted to contradiction. When any part of such statement is used for contradicting the witness during cross-examination the Public Prosecutor had the right to use any other part of the statement, during re-examination, for the purpose of explaining it. The said right of the Public Prosecutor is explicitly delineated in the last part of the proviso to Section 162(1) of the Code. The first limb of the proviso says that any part of the statement (recorded by the Investigating Officer) may be used to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act. The next limb of the proviso reads thus: And when any part of such statement is so used, any part thereof may also be used in the re-examination of any witness but for the purpose only of explaining any matter referred to in cross-examination."
[61] Mr. Datta, learned P.P. regarding circumstances which have been accepted and conclusively established by the trial Court to connect the convict appellants has pointed out the vital points like abscondence of the accused soon after occurrence warrants consideration and careful scrutiny on facts, abscondence of accused conclusively established. On this issue he has relied Page 46 of 70 upon a decision of the Apex Court in Dhanjoy Chatterjee @ Dhana v. State of W.B., reported in (1994) 2 SCC 220, wherein, the Court has observed as under:
"10. 10. We shall now deal with and consider various circumstances relied upon by the prosecution which have been accepted as conclusively established both by the trial court and the High Court to connect the appellant with the crime.
1. Motive: In a case based on circumstantial evidence, the existence of motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. In this case, there is ample evidence on the record to show that the appellant had a motive to commit the alleged crime and we are unable to agree with Mr. Ganguli that the motive for the appellant to commit the murder of the deceased has not been established.
11. All the circumstances referred to above and relied upon by the prosecution have been conclusively established by the prosecution. They arc specific and of clinching nature and all of them irresistibly lead to the conclusion that the appellant alone was guilty of committing rape of Hetal and subsequently murdering her. All the circumstances which have been conclusively established are consistent only with the hypothesis of the guilt of the appellant and are totally inconsistent with his innocence. Not only in the cross-examination of various prosecution witnesses, but even during the arguments, nothing has been pointed out as to why any of the witness for the prosecution should have falsely implicated the appellant in such a heinous crime. None of the witnesses had any motive to falsely implicate him. None had any enmity with him. The witnesses produced by the prosecution have withstood the test of cross-examination well and their creditworthiness and reliability has not been demolished in any manner. All the circumstances established by the prosecution, as discussed above, are conclusive in nature and specific in details. They are consistent only with the hypothesis of the guilt of the appellant and totally inconsistent with his innocence. We are, therefore, in complete agreement with the trial court and the High Court that the prosecution has established the guilt of the appellant beyond a reasonable doubt and we, therefore, uphold his conviction for the offences under Sections 302, 376 and 380 IPC."
[62] He vehemently argued on the point of discrepancies and minor contradictions in appreciation of evidence and placed his reliance on a judgment of Apex Court in Mukesh & Another v. State (NCT of Delhi) and Another, reported in AIR 2017 SC 2161, wherein, the Court has held thus:
Page 47 of 70"383. At the same time while dealing with cases of rape, the Court must act with utmost sensitivity and appreciate the evidence of the prosecutrix in view of settled legal principles. Courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and it should not be swayed by minor contradictions and discrepancies in appreciation of evidence of the witnesses which are not of a substantial character. It is now well settled that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidence such as the report of chemical examination, scientific examination, etc. if the same is found natural and trustworthy.
430. Further, as discussed infra, pursuant to the disclosure statement of the accused, clothes of the accused, some of which were bloodstained and other incriminating articles were recovered. PW-45 Dr. B. K. Mohapatra matched the DNA profiles of the blood detected on the clothes of the accused with that of the complainant and the victim. One set of DNA profile generated from jeans-pants of the accused Akshay (A-3) matched the DNA profile of PW-1. Likewise, one set of DNA profile generated from the sports jacket of accused Vinay (A-4) was found consistent with the DNA profile of PW-1. Also, one set of DNA profile generated from black-coloured sweater of accused Pawan Gupta (A-5) was found consistent with the DNA profile of PW-1. The result of DNA analysis further corroborates the version of PW-1 and strengthens the prosecution case. DNA analysis report, as provided by PW-45 is a vital piece of evidence connecting the accused with the crime.
436. PW-81 Dinesh Yadav is the owner of the bus bearing Registration No.DL-0PC-0149 (Ext.P-1). PW-81 runs buses under the name and style "Yadav Travels". On interrogation, PW-81 Dinesh Yadav stated that A-1 Ram Singh was the driver of Bus No. DL-0PC-0149 in December 2012 and A-3 Akshay Kumar Singh was his helper in the bus. PW-81 also informed the police that the bus was attached to Birla Vidya Niketan School, Pushp Vihar, New Delhi to ferry students to the school in the morning and that it was also engaged by a company named M/s Net Ambit in Noida, to take its employees from Delhi to Noida. PW-81 also informed the police that after daily routine trip, A-1 Ram SSingh used to park the bus at Ravidas Camp, R. K. Puram, near his residence. PW-81 further informed that on 17.12.2012, the bus as usual went from Delhi to Noida to take the staff of M/s Net Ambit to their office. The recovery of the bus (Ext.P-1) and evidence of PW-81 led to a breakthrough in the investigation that A-1 Ram Singh was the driver of the bus and A-3 Akshay was the cleaner of the bus."
[63] On the issue of consideration of proved confession affecting person making it and others jointly under trial for same offence has drawn out our attention to Section-30 of the Evidence Act wherein it has been discussed as under:
Page 48 of 70Section-30. Section-30 of the Evidence Act provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."
Offence as used in this Section, includes the abetment of, or attempt to commit, the offence.
Illustrations: (a) A and B are jointly tried for the murder of C. It is proved that A said B and I murder C. The Court may consider the effect of this confession as against B. (b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said A and I murdered C. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.
[64] Regarding value of confession, Mr. Datta, learned P.P. has further stated that "the law is well settled that the confession of a co-accused cannot be used in evidence against the other accused unless the Court is morally satisfied on other evidence that the accused is guilty."The learned Public Prosecutor Mr. Ratan Datta submitted that the guilt against the accused is proved beyond reasonable doubt and the judgment and sentence in reference needs to be upheld and death sentence be confirmed and both the appeal be dismissed.
[65] Mr. Subrata Sarkar, learned senior counsel appearing for the appellant in reply contended that since the prosecution has failed in establishing notice and rape in its forensic evidence the crime leading to murder gets diluted and allegation extinguishes and relied on a judgment in State of Assam v. Anupam Das, reported in 2007 (3) GLT 697, wherein the Court has held thus:
"19. Exts-15 and 17 are the statements of the accused recorded by PWs- 8 and 12 respectively, who are the doctor, who examined the accused on 24-1-2000 and the Executive Magistrate respectively who recorded the statement at about 8.15 PM on 22-1-2000 at the instance of the police. One indisputable fact emerging from the evidence is that from at least 12 noon of 22-1-2000, the accused was in the custody of police. Therefore, in view of Section 26 of the Evidence Act the statements purporting to be the confessions are inadmissible in evidence, as the said cannot be proved against the accused. The prosecution seeks to classify these confessions as extrajudicial confessions. Irrespective of the tag sought to be given by the prosecution the fact remains that these Page 49 of 70 confessions were made while the accused was in custody of the police, therefore, hit by Section 26 of the Evidence Act. Section 26 of the Evidence Act reads as follows:
26. Confession by accused while in custody of police not to be proved against him.-'No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
20. It can be seen from the language of Section 26 that the only exception to the Rule contained under Section 26 is that any such confession, which is otherwise hit by Section 26, can be proved against the accused if such a confession is made in the immediate presence of a Magistrate. It is not the case of the prosecution that the alleged confession before PW-8 was made in the immediate presence of a Magistrate, therefore, the same is clearly hit by Section 26 and cannot be looked into.
21. Coming to Ext-17, learned Public Prosecutor argued that it being a confession made in the immediate presence of a Magistrate, the same could be proved against the accused as falling within the exception to the Rule contained under Section 26 of the Evidence Act. Admittedly, PW-12, who recorded Ext-17, is an Executive Magistrate, therefore, it becomes necessary to examine whether the expression "Magistrate"
occurring under Section 26 of the Evidence Act takes within its sweep an "Executive Magistrate". "Magistrate" is not a defined expression under the Evidence Act.
22. Section 3 Sub-section (32) of the General Clauses Act, 1897 defines the expression "Magistrate" as follows:
(32) "Magistrate" shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force;
Therefore, necessarily we need to examine the provisions of the Code of Criminal Procedure.
23. Section 3 of the CrPC provides for rule of construction of references. Sub-section (1) of Section 3 stipulates as to how the expression "Magistrate" shall be construed whenever reference is made under the Code, without any qualifying words. Sub-sections (2) and (3) are not relevant for our purpose. Sub-section (4), which is relevant for the present purpose reads as follows:
(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters-
(a) Which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before Page 50 of 70 any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or
(b) Which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.
The scheme of Sub-section 4 will be examined slightly later in this judgment.
24. Section 6 of the CrPC contemplates the establishment of various kinds of criminal courts. They are--(i) Courts of Session; (ii) Judicial Magistrate of the first class and, in any metropolitan area, Metropolitan Magistrate; (iii) Judicial Magistrate of the second class; and (iv) Executive Magistrates. Therefore, Section 6 draws a clear distinction between Judicial Magistrates and the Executive Magistrates. The powers of the Judicial Magistrates and the Executive Magistrates are expressly dealt with under various provisions of the CrPC. Sections 12 to 19 deal with the various categories of Judicial Magistrates referred to under Section 6. Section 20 deals with the Executive Magistrates. Relevant to the context of this case is Section 20(1) which reads as follows:
20. Executive Magistrates--(1) In every district and in every metropolitan area the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.
25. Section 21 of the CrPC empowers the State Government to appoint Special Executive Magistrates; the details of which are not necessary in the present case. Section 22 of the CrPC deals with the local jurisdiction of the Executive Magistrates. Section 23 of the CrPC deals with the hierarchy of the Executive Magistrates and the limits and powers of the various Executive Magistrates. Wherever the CrPC confers powers on the Executive Magistrates, the provisions of the Code are specific, for example, under Sections 107, 108, 109 and 110 the legislature expressly employed the expression "Executive Magistrate". We do not propose to make an exhaustive survey of the provisions of the Code for the present purpose. The above provisions are noted only for understanding the scheme of the Code with regard to the powers, functions and limitations of the Judicial and Executive Magistrates.
26. It is in the context of such separation of powers among the two categories of Magistrates Section 3(1) stipulates that in the Code of Criminal Procedure any reference, without any qualifying words, to a Magistrate shall be construed a Judicial Magistrate which term includes a Judicial Magistrate in contra-distinction to an Executive Magistrate. The Parliament was also conscious of the fact that under various enactments made by the Parliament, powers are required to be exercised by the Magistrates without specifying whether such powers are to be exercised by Judicial or Executive Magistrates in a given situation. The Page 51 of 70 Parliament, therefore, though it fit to make a declaration Under Sub- section (4) of Section 3 that whenever such a question arises (in the context of any law made by the Parliament other than the Code of Criminal Procedure whether such a reference is to a Judicial Magistrate or the Executive Magistrate) depending upon the nature of the power that is to be exercised such reference is to be construed to be either to a Judicial or an Executive Magistrate. From the scheme of Sub-section (4) it appears that where the powers are purely administrative in nature such powers are required to be exercised by an Executive Magistrate. Whereas, where the power to be exercised is such that it involves appreciation of evidence or the formulation of a decision which exposes any person to any punishment, penalty or detention etc then such functions are required to be exercised by the Judicial Magistrates.
27. In the light of the above we are of the opinion that the expression "Magistrate" occurring under Section 26 of the Indian Evidence Act can only mean a Judicial Magistrate as the functions of a Magistrate recording a confession of a person in police custody is likely to expose the person making the confession to a punishment. This conclusion of ours gains further support from the very scheme of the provisions of Sections 25 to 27 of the Evidence Act. Section 25 of the Evidence Act makes a declaration in no uncertain terms that a confession made to a police officer shall not be proved against the accused. The rationale behind this declaration is too well settled by a catena of decisions to the effect that in the absence of such provisions the police are likely to extract confession from the accused by unwholesome methods. Section 26 of the Act is a great distinction to Section 25. While Section 25 prohibits the proof of a confession made to a police officer, Section 26 prohibits the proof of a confession made to any person while the accused is in the custody of police. Obviously, the provision is made in order to prevent the police from extracting confession from the accused while he is under custody and ingeniously circumventing the prohibition of law contained under Section 25 by making it appear that the confession was not in fact made to a police officer but somebody else. The scheme of the provisions of Sections 25 to 27 was examined by the Supreme Court in : Bheru Singh v. State of Rajasthan wherein at para 16 the Supreme Court held:
16...By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun.
The expression "accused of any offence" in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a Page 52 of 70 police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial."
[66] We are in respectful agreement with the above exposition of law. In the present case our careful analysis of the statements of the prosecution has created an impression on our minds that to some extent there are some corroboration as well as discrepancies in the statement of the PWs. Insofar as the appellants are concerned, the evidence of all the witnesses have been accepted and acted upon by the Sessions Court. The conviction and sentence are challenged by the accused-persons. In view of the capital punishment, reference for confirmation of death penalty is also placed for our consideration. For the purpose of consideration, let us delve into the evidences of the PWs as a whole.
[67] One Tarin Kumar Tripura lodged a written complaint on 06.12.2018 at 0105 hours with the officer-in-charge of Nutanbazar P.O. alleging that on 05.12.2018 at about 9.00am his younger sister (name withheld) aged about 11 years, went to her school. At about 3.00 pm when the school was supposed to get over she did not return. Subsequently, they were informed by the villagers that she was with the company of accused Kastarai and Bhanjoy Tripura at about 9.30am and after some time they heard the scream of a girl. Getting this information the informant along with others, detained Bhanjoy Tripura at about 6.30pm and on being confronted by them Bhanjoy Tripura confessed that at about 10.00am Bhanjoy and Kastarai Tripura took his sister to a jungle near the road and committed rape on her and thereafter killed her.
Page 53 of 70[68] PW-1, Manoranjan Tripura, the father of the deceased has clearly corroborated the informant to the effect that the classmate girls of the deceased found her with the accused persons on 05.12.2018 at about 9.00am in the morning with her school bag and after sometime they heard the scream of the deceased. On that clue they detained the accused Kastarai and Bhanjoy Tripura and subsequently, they confessed that they raped and killed the victim. The dead body was recovered by the police in his presence. Inquest was prepared on the dead body and his signature was taken therein which is marked as Exbt.1.
[69] In cross, it has been revealed that one of her schoolmates was studying in another school and Madhuri was studying in Krishnakanta Para School. It was also not mentioned in her 161 Cr. P.C. statement that there was Rs.200/- with Madhuri or they took it after killing her.
[70] PW-2, Miss Saloni Tripura, aged about 11 deposed that on the fateful day at about 9.00am she and Swapna were going to the forest to dig for potato. At that time on the way they saw Bhanjoy and Kastarai along with the victim who was in school dress. They exchanged a few words and then left. After a short while they heard scream of the victim girl but, they did not advance to the place of the scream. In the afternoon when the victim girl being searched, they disclosed that they had seen her in the company of Kastarai and Bhanjoy and also heard the shriek. She gave her statement to the Magistrate during investigation and her signature was taken which is marked as Exbt.3.
[71] In cross, she denied the suggestion that she gave her statement to the Magistrate and police on being tutored by her parents or Kastarai was falsely implicated in this case as he was involved in another case or she did not see the victim girl in school dress in the company of Kastarai and Bhanjoy Tripura.
[72] PW-3, Miss Swapna Debi Tripura, aged about 12 and deposed in the same line as that of PW-2.
Page 54 of 70[73] As regards the last seen theory, it is clear from the testimony of PWs-2 and 3 that on the day of incident at about 9.00am when they were going to the forest to dig for potato both of them saw the victim girl in the company of Bhanjoy and Kastarai Tripura. At that time, the victim girl was in school dress. After a short while they heard scream of the victim girl but did not advance to the place of shout.
[74] PW-4, Pabitra Reang is the Teacher-in-charge in Krishnakanta Para S. B. School, Karbook, who, on 13.12.2018, as per requisition of the I/O issued school certificate of the victim girl and the I/O seized the certificate by preparing seizure list and took his signature in the seizure list. he proved the school certificate of the deceased as Exbt.6 and his signature in the seizure memo marked as Exbt.5.
[75] PW-5, Pajendra Reang, Asst. Teacher in Krishnakanta Para S. B. School is also a seizure witness in respect of the school certificate of the victim girl. He proved his signature in the seizure memo marked as Exbt.5/1.
[76] PW-6, Tarin Kumar Tripura, the complainant herein and has deposed that when he went to collect rubber latex and came to home at 4.00pm, found that his younger sister did not return from school. Thereafter, they searched for her and during search; they met Saloni and Swapna who told that they had seen his sister with Kastarai and Bhanjoy Tripura at the school time. They also told that they heard the outcry of his sister. He has stated that thereafter, they went to the house of the accused-persons and brought them in the house of Lalin Tripura and at that time Kastarai fled away. Bhanjoy Tripura confessed about the incident to the effect that he and Kastarai committed rape on his sister after taking her to the jungle and thereafter killed her and concealed her body in the marshy land. Thereafter, he lodged a complaint which was written by Sumanta Tripura which is marked as Exbt.7. Inquest of the dead body was done by the police officer and he puts his signature in the inquest report which is marked as Exbt.1/1.
[77] In cross, it has been stated that the dead body of his sister was recovered from the north of their house. The distance between Bairagi Dokan Page 55 of 70 and the place where the dead body was found is about 2 km. It has been stated in the cross examination that accused-persons were manhandled when they were detained. This part of the statement has not been recorded in the Section- 313 Cr. PC.
[78] PW-7 Laxmiram Tripura, is a co-villager and independent witness. His evidence is also to the same effect that Swapna Tripura and Saloni Tripura told them to have seen the victim girl in the company of Bhanjoy and Kastarai Tripura. Bhanjoy and Kastarai Tripura were brought in the house of Lalin Tripura but Kastarai suddenly fled away from that house. Bhanjoy Tripura confessed before them that he and Kastarai Tripura committed rape on the victim girl and thereafter killed her.
[79] PW-8 Kripamoy Tripura, ASI of police and he has deposed the same thing that on 05.12.2018 on reaching the spot they found Bhanjoy Tripura was detained by local people and he admitted having committed the rape and murder of the victim girl by Bhanjoy Tripura and Kastarai Tripura. Thereafter, as per indication of Bhanjoy Tripura, he along with his party and public went to the spot and in presence of the SDPO, SDM and other officers, the dead body of the deceased recovered in a lunga at Purba Manikya Dewanbari. In his cross examination, PW-8 has submitted that he has not submitted the copy of the GD entry. He also cannot remember on which date the investigating officer examined him.
[80] PW-9, Kailash Reang and PW-10 Kanta Debbarma, constable are the seizure witnesses in respect of the stands of hair, blood sample, public hair and penile swab of accused Kastarai Tripura by the I/O of the case.
[81] PW-11, Santi Kumar Tripura, also gives the same narrative that Saloni and Swapna told that in the morning they saw the victim girl with Kastarai and Bhanjoy. This witness has also corroborated that they detained Kastarai and Bhanjoy for interrogation and Kastarai fled away and Bhanjoy admitted that he and Kastarai committed rape and murder of the victim girl and concealed the dead body. It has also been stated that police recovered the dead body of the deceased on the indication of Bhanjoy Tripura. He has stated that Page 56 of 70 police took his signature in the confessional statement given by Bhanjoy Tripura which is marked as Exbt.10.
[82] PW-12, Patan Singh Tripura, deposed that on 09.12.2018, police seized one black colour log of length 60 cm covered with mud, mud from the spot where the log was seized, water collected from the ditch and mud from the place where the deceased was buried.
[83] PW-13, Lalindra Tripura, father of the PW-2 Saloni Tripura has also corroborated the fact of last seen of the victim with the accused-persons by Saloni and Swapna in the morning and the recovery of the dead body of the deceased on the admission of Bhanjoy Tripura who admitted that he and Kastarai committed rape on the deceased in a jungle and thereafter killed her and covered her body under the earth. In the afternoon, Kastarai and Bhanjoy were detained by the villagers for interrogation. At that time Kastarai managed to escape. Bhanjoy admitted his guilt and stated that he and Kastarai committed rape and murder and subsequently, concealed her body. PW-13 was present when Bhanjoy confesed before the villagers. After police came Bhanjoy led them to the place of occurrence and the dead b ody of the deceased was recovered from the crime scene as shown by Bhanjoy Tripura. Police conducted video camera. He identified the accused persons in the Court.
[84] PW-14, Saddak Hossen, constable, is the seizure witness in respect of the articles namely torn blouse, school shirt, under garment, ganjee, vaginal swab, anal swab, blood sample, stomach contents and viscera of the deceased. It is to be mentioned herein that mud sample from face or body was not sent for examination.
[85] PW-15, Nagendra Reang, he is also a constable and the seizure witness in respect of the penile swab, pubic hair and blood sample of Bhanjoy Tripura. He also put his signature in the blood sample authentication form for accused Bhanjoy Tripura.
[86] PW-16, Dr. Aseema Chakma, the medical officer of Nutan Bazar Rural Hospital. She deposed that on 06.12.2018 she examined accused Page 57 of 70 Bhanjoy Tripura and collected his blood sample for DNA typing. She conducted general medical examination and potency test of the said accused and prepared her report. She proved her report as Exbt.16/1. She also collected blood sample of accused Kastarai Tripura in connection with the same case for DNA typing and also conducted general medical examination and potency test of the said accused and prepared her report. She proved her report as Exbt.17. She also put her signature in the seizure list prepared by the I/O by which he seized the penile swab and pubic hair of accused Bhanjoy Tripura.
[87] PW-17, Rammohan Tripura, another co-villager who, has deposed that he also joined in the search for the victim girl and in course thereof, they went to the house Putunki and Swapna who told that in the morning they met the victim girl on the road along with Kastarai Tripura and Bhanjoy Tripura. Thereafter, they visited the house of Kastarai and Bhanjoy Tripura and detained them and subsequently, brought them to the house of Nalin Tripura. during interrogation, Kastarai fled away but, Bhanjoy could not escape. Bhanjoy confessed that he and Kastarai Kidnapped the victim girl and committed rape upon her and thereafter killed her in the jungle and concealed her dead body.
[88] PW-18, Sabiram Tripura, another villager has also corroborated the story of the accused persons Kastarai Tripura and Bhanjoy Tripura's detention by the villagers whereform Kastarai managed to flee while Bhanjoy Tripura confessed and Kastarai raping the victim and thereafter killing her and concealing her body in the jungle.
[89] PW-19, Chira Kumar Tripura, another villager also has echoed the same version about the last seen of the victim with the accused duo by Swapan Tripura and Putunki Tripura. And about Bhanjoy and Kastarai being detained and Kastarai having fled from the detention and Bhanjoy haing confessed to the villagers about the incident.
[90] PW-20, Binoy Deb, is the constable who conducted the video recording of the movement of Bhanjoy Tripura from the place of detention by the public to the place of the recovery of the dead body of the victim.
Page 58 of 70[91] PW-21, Smt. Dorothy Jamatia, is the Judicial Magistrate First Class, Udaipur who on 29.01.2019 recorded the statement of Smt. Swapna Tripura, aged about 11 years and Smt. Saloni Tripura, aged about 10 years under Section-164(5) of the Cr. P.C. and she has proved the statement recorded by her. For the purpose of reference, the statement of Swapna Tripura under Section-164(5) of Cr. P.C. may be extracted hereunder:
"Last Wednesday in the morning around 10am in Dulukchara I along withmy cousin Saloni Tripura went to the forerst for the purpose of collecting vegetables. And while on way we met Kastarai Tripura in an intoxicated state and then we met Madhuri Tripura and at last we also met Banchari Tripura. After meeting them I along with my sister started to walk towards the jungle for collecting vegetables when we heard the scream of Madhuri Tripura and got scared so I along with my sister entered the jungle. After getting home, I heard from my uncle that Madhuri has died. I told them that we heard the scream of Madhuri in the jungle. My uncles caught Kastarai Tripura and Banchai Tripura confessed that both of them raped Madhuri and killed her by beating her with a wooden log."
[92] The statement of Saloni Tripura under Section-164(5) of Cr. P.C.:
"Few days ago I along with my sister Swapna Tripura were going to a forest for collecting vegetable and on way we met Kastarai Tripura and then Madhuri Tripura came and at last came Banchai Tripura. Then we started our way towards the forest to collect vegetables when he heard the scream of Madhuri Tripura but instead of looking out what happened, we continued our hunt for vegetable. After coming home, we learned that Madhuri has died and then Banchai told that Madhuri has died, Kastarai has ran away when people were asking him."
[93] PW-22, Dr. Keshab Deb, of Natunbazar Hospital is the Medical Officer who along with two other doctors namely, Dr. Pranjit Das and Dr. Aseema Chakma conducted post mortem examination of the dead body of deceased and on examination, they found the following injuries on her person:
Page 59 of 701. One lacerated wound (6cm x 2cm x 1cm) over scalp.
2. Multiple abrasion with irregular margin over both side of chest, 06cm below nipple, abrasion over right iliac region (5cm x 1cm) and mid thigh (right side) size 6cm x 1cm.
3. Subdural hemorrhage over both occipital lob.
4. No visible injury was seen over external genital area. Hymen was torn (old and healed) at 3 O‟clock and 8 O‟Clock position, pubic hair was present. Two numbers of vaginal swab were preserved to rule out any recent sexual intercourse. Anal swab was also preserved.
[94] After examination they opined that the cause of death was the combined effect of head injury resulting from hard blunt object and asphyxia resulting from suffocation. The nature of death was homicidal. Mud was found inside the mouth of the deceased. He indentified the P.M. report prepared by him in his hand writing and it was signed b y him and Dr. Pranjit Das and Dr. Aseema Chakma. The P.M. report was marked as Exbt.22 and his signature as Exbt.22/1 and the signatures of Dr. Pranjit Das and Dr. Aseema Chakma were marked as Ext.22/2 and Exbt.22/3.
[95] PW-25, Dr. Prasanjit Das is the co-examiner of the PM report of the dead body of the deceased along with PW-22 and Dr. Aseema Chakma on 06.12.2018. He has given the same account as that of PW-22.
[96] PW-32, SI Dhrubajyoti Debbarma, is the I/O of the case and he has narrated the functions performed during the course of investigation. He has stated that after getting the information from the father of the deceased that in the morning his daughter went to school but did not return. They searched for her and came to learn from the villagers that the victim was seen with accused Bhanjoy Tripura and Kastarai Tripura. They interrogated Bhanjoy Tripura who confessed that he and Kastarai Tripura kidnapped and committed rape on the victim and thereafter, murdered her and concealed her body by earth. Thereafter, they sent the complaint to the police station. Accused Bhajnoy Tripura was interrogated in front of the SDM, Karbook and the interrogation was video recorded in presence of witnesses including the SDM. As per the confessional statement of Bjanjoy Tripura they had been to the scene of the crime at some distance in the same locality and on the indication of Bhajnoy Page 60 of 70 Tripura the dead body of the deceased was recovered under the earth. Thereafter, inquest report has been prepared marked as Exbt.1/3.
[97] He thereafter, examined some witnesses and recorded their statement under Section-161 of Cr. P.C. He also arranged for medical examination of the accused Bjanjoy Tripura in the hospital. He also seized the wearing apparels of the accused Bjanjoy Tripura at the hospital by preparing seizure list and forwarded the accused Bhanjoy. He conducted raid for arrest of accused Kastarai Tripura but he was found absconding. Thereafter, he collected sample of blood vaginal swab and uniform of the deceased by preparing seizure list. He also seized the pubic hair and blood sample of the accused Bhanjoy Tripura.
[98] Thereafter, on 09.12.2018 as per the disclosure statement of Bhanjoy Tripura he took him to East Manikya Dewan at Ramchandra Reang para along with SDPO, Amarpur. Thereafter, on indication by Bhanjoy Tripura they went to the place of occurrence along with other villagers and seized the lathi, soil, water, mud and wet mud etc. by preparing seizure list. On search they found one pair of red chappal and one yellow elastic hair band and seized the same by preparing seizure list. On 12.12.2018, he seized the C/D cassette containing the disclosure stamen of Bhanjoy Tripura. The original School certificate was seized. As per school certificate the date of birth of the deceased was 03.01.2006. Subsequently, Kastarai Tripura was arrested and on his indication police along with other villagers went to the place of occurrence and recovered the school bag, exercise book etc. of the deceased. On 29.12.2018 he seized the C/D cassette containing the disclosure statement of Kastarai Tripura by preparing seizure list.
[99] Thereafter, on completion of the investigation, he submitted charge against the accused persons in the Court. His cross examination is mainly about suggestions and denials and it has not revealed any serious point so as to doubt the investigative functions performed by him and as such, its repeating is avoided.
Page 61 of 70[100] On an analysis of the overall fact situation in the instant case and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by this Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof, without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever, cannot substitute proof.
[101] That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused persons and the other his innocence. The judicially laid parameters, defining the quality and contents of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the present case in hand has failed to establish the case under Section-376 of IPC. But definitely, succeeds in establishing the case under Sections-302 and 201 of the IPC.
[102] This Court put a question regarding forensic report and medical evidence where nothing has been disclosed by the medical officers. PW-22, Dr. Keshab Das in his medical examination report has quoted that "No visible injury was seen over external genital area. Hymen was torn (old and healed) at 3 O'clock and 8 O'Clock position, pubic hair was present. Two numbers of vaginal swab were preserved to rule out any recent sexual intercourse. Anal swab was also preserved". He has further stated that after the examination opined that the cause of death combined effect to head injury resulting from hard blunt object and asphyxia resulting from suffocation. The nature of death was homicidal. Mud was also found inside the mouth of the deceased.
[103] PW-24, Dr. Rupali Majumder on camera has stated that seminal stain/spermatozoa of human original could not be detected in the exhibits marked as A1, B1, C1, G1, H1, J1, K1, L1 and M1. No epithelium cell could be detected in the exhibits marked as B1 and H1. Diatoms could not be Page 62 of 70 detected in the exhibit marked as Exbt.23. In view of medical and forensic report, it can safely be said that the charges under Section-376 of IPC is not established as it reveals clear discrepancies in the medical report.
[104] Insofar as the allegation made against the accused person under Section-376 of IPC, the prosecution has not proved beyond reasonable doubt in the light of the medical and forensic evidence. But, however, in view of the last seen theory in the light of the evidence of PWs.2 and 3, the victim was in the company of the accused-persons i.e. Bhanjoy Tripura and Kastarai Tripura and accordingly, as per statement of the PWs.2 and 3 there was a cry or shouting of the victim girl. This Court reasonably presumes that an attempt might have been made and the action of molest by the accused-persons against the victim girl, cannot be ruled out.
[105] Insofar as Sections-302 and 201 of IPC concerned, the sentence to death penalty is converted into life imprisonment. As the last seen theory basing on the circumstantial evidence, the confession made by the accused persons before PWs. 1,2, 3, 6, 7, 11, 13, 17, 18, 19, 20, 23 and 28 and also before the police in presence of the Magistrate, the last seen with the accused persons by her school-mate i.e. PWs.2 and 3 who saw the victim with her school bag in the company of the accused persons and after sometime they heard the scream of the victim. It is also clear in the evidence of Kastarai and Bhanjoy that they were detained by the said PWs, who are local villagers for interrotation but Kastarai managed to slip away from their custody while Bhanjoy confessed to the crime of rape and murder of the victim by both of them. Bhanjoy also stated that he would be able to show them the place where they committed the crime. The confession of Bhanjoy up to this extent was made before the said PWs who are private persons being the villagers and as such the same could be treated as was extra-judicial confession which is not hit by Section-25 or 26 of the Evidence Act.
Page 63 of 70[106] Now, we may notice the cases which were relied upon the respondent wherein, this Court had declined to confirm imposition of capital punishment treating them not to be the rarest of rare cases. In Ronny. v. State of Maharashtra, the Court while relying upon the judgment, has held thus: "45......the choice of the death sentence has to be made only in the rarest of rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society."
[107] This Court after noticing the above stated principle that the Court should ordinarily impose a lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only. The Court, while considering the cumulative effect of all the factors such as the offences not committed under the influence of extreme mental or emotional disturbance and the fact that the accused were young and the possibility of their reformation and rehabilitation could not be ruled out, converted death sentence into life imprisonment.
[108] Most of the heinous crimes under IPC are punishable by death penalty or life imprisonment, that by itself does not suggest that in all such offences, penalty of death alone should be awarded. We must notice, even at the cost of repetition, that in such cases awarding of life imprisonment would be a rule, while death would be the exception. The term rarest of rare case which is the consistent determinative rule declared by this Court, itself suggests that it has to be an exceptional case.
[109] The life of a particular individual cannot be taken away except according to the procedure established by law and that is the constitutional mandate. The law contemplates recording of special reasons and therefore, Special reasons in contradistinction to reasons, simpliciter conveys the legislative mandate of putting a restriction on Page 64 of 70 exercise of judicial discretion by placing the requirement of special reasons. Since the later judgments have been added to the principles in Bachan Singh and Machhi Singh, it will be useful to restate the stated principles while also bringing them in consonance, with the recent judgments.
[110] It will be appropriate for the Court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the Court as contemplated under Section-354(3) Cr.P.C.
[111] While determining the questions relateable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.
(1) The Court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence.
(2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime."
[112] Stated broadly, these are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state it as an absolute rule.
Page 65 of 70Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice between the parties.
[113] Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole. Thus, the Courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death.
[114] Wherever, the offence which is committed, manner in which it is committed, its attendant circumstances and the motive and status of the victim, undoubtedly brings the case within the ambit of rarest of rare cases and the Court finds that the imposition of life imprisonment would be inflicting of inadequate punishment, the Court may award death penalty. Wherever, the case falls in any of the exceptions to the rarest of rare cases, the Court may exercise its judicial discretion while imposing life imprisonment in place of death sentence.
[115] There are certain circumstances, which if taken collectively, would indicate that it is not a case where the Court would inevitably arrive at only one conclusion, and no other, that imposition of death penalty is the only punishment that would serve the ends of justice. According to the statement of the doctors, there were external injuries on the body of the deceased. Thus, the possibility of death of the deceased occurring co-accidentally as a result of this act committed on her by the accused persons cannot be ruled out. There is no attempt made by the prosecution to prove on record that these accused are criminals or are incapable of being reformed even if given a chance to improve themselves. The contention raised on behalf of the accused-persons is that, it is not a case where no other alternative is available with the Court Page 66 of 70 except to award death sentence to the accused-persons and that they are likely to prove a menace to the society. Thus, given a chance, they are capable of being reformed and be law-abiding citizens.
[116] Having dealt with these contentions at some length in the earlier part of the judgment, we do not consider it necessary to again deliberate on these questions. Suffices it to note that the accused are guilty of the offences for which they were charged. It is correct that the possibility of their being reformed cannot be ruled out. The Court has to consider various parameters afore-stated and balance the mitigating circumstances against the need for imposition of capital punishment. The factors to be considered could be different than the mitigating circumstances.
[117] While we cumulatively examine the various principles and apply them to the facts of the present case, it appears to us that the age of the accused, possibility of the death of the deceased occurring accidently and the possibility of the accused reforming themselves, they cannot be termed as social menace. It is unfortunate but a hard fact that all these accused have committed a heinous and inhumane crime, but it cannot be held with certainty that this case falls in the rarest of rare cases. On appreciation of the evidence on record and keeping the facts and circumstances of the case in mind, we are unable to hold that any other sentence but death would be inadequate.
[118] The question of rape of the victim girl, however, stands on an entirely different footing. From the depositions of Dr. Keshab Das, PW-22 along with two doctors i.e. PW-24 and PW-25 who conducted post mortem examination over the dead body, nothing reveals to establish that the rape was committed upon the victim girl. Quite apart from this evidence, we find no other evidence on record suggesting that the accused-persons had committed rape on the victim before murder. There Page 67 of 70 is no other evidence collected by the investigating agency and produced before the Court. In absence of any other evidence, it is simply not possible to jump to the conclusion that the victim girl was subjected to rape before murder. Nothing reveals from the forensic report. Result of the examination was that "the above described exhibits were subjected to visual examination under different light sources, chemical tests and microscopic examination. The results based on the test viz.(i)Seminal stain/ spermatozoa of human origin could not be detected in the exhibits marked as A1, B1, C1, G1, H1, J1, K1, L1 and M1. (ii) No epithelium cell could be detected in the exhibits marked as B1 and H1. (iii) Diatoms could not be detected in the exhibits marked as O1. The allegation of rape is a matter of proof through reliable evidence and not a matter of conjectures. As is well settled, howsoever strong the suspicion, the same in the context of a criminal offence cannot take shape of proof.
[119] No visible injury was seen over external genital area. Hymen was torn (old and healed) at 3 O'clock and 8 O'Clock position, pubic hair was present. Two numbers of vaginal swab were preserved to rule out any recent sexual intercourse. Anal swab was also preserved. After medical examination they opined that the cause of death was the combined effect of head injury resulting from hard blunt object and asphyxia resulting from suffocation. The nature of death was homicidal. Mud was found inside the mouth of the deceased. As such, the conviction as awarded under Section-376 of IPC needs to be modified in view of above analogy and thus, set aside.
[120] The accused-persons cannot take the advantage of the weakness of the prosecution and if there are any latches on the part of the investigation, the duty is cast upon the judiciary to meet the ends of justice to render justice to the victim. In the present case, even though there is no eye witness, the entire case is based on the circumstantial evidence more particularly, on the last seen theory and on the strength of Page 68 of 70 the evidence of PWs.2 and 3, this Court comes to this conclusion drawing adverse inference against the accused-persons.
[121] The legal position as enunciated in Pandit Kishori Lal, Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.
[122] The doctrine of "rarest of rare" confines two aspects and when both the aspects are satisfied only then the death penalty can be imposed. Firstly, the case must clearly fall within the ambit of "rarest of rare" and secondly, when the alternative option is unquestionably foreclosed. Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose.
[123] In life sentence, there is a possibility of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore, puts an end to anything to do with life. This is the big difference between two punishments. Thus, before imposing death penalty, it is imperative to consider the same. The "rarest of rare" dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment would be pointless and completely devoid of any reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the "rarest of rare" doctrine, the Page 69 of 70 court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.
[124] There can be no doubt that rape and murder of a minor girl shocks the conscience. It is barbaric. There is, however, no evidence to support the finding that the murder was pre-meditated. The petitioner did not carry any weapon. The possibility that the accused-appellants might not have realized that his act could lead to death cannot altogether be ruled out. Moreover, the trial Court has apparently not considered the question of whether the crime is the rarest of rare crimes as mandated by the Supreme Court in Bachan Singh (supra).
[125] The accused-appellants neither sought nor was given the opportunity to file any affidavit placing on record relevant mitigating circumstances. The legal assistance availed by the accused-appellants was patently not satisfactory and was not accompanied by a social worker. No attempt was made to place on record mitigating circumstances. In the absence of any arguments, the trial Court did not consider the question of whether the accused-appellants could be reformed.
[126] It is seen from the trial Court judgment that "This is yet another Nirbhaya type of case" this Court feels that it is unnecessary for the trial Court to open the judgment with the above observation even before narrating the case of the prosecution and appreciating the facts and appreciating evidence, the opinion of the Judge of Court below in starting the judgment with the above observation, gives an impression that the learned trial Court is already pre- determined in awarding the capital punishment.
[127] The charge leveled under Section-363 of IPC against the accused-persons has not been proved on the strength of the statement of PWs.2 and 3. As such, the charges for kidnap, stands set aside.
[128] These factors on record would convince us that while confirming the conviction of the accused for offence under Section-302 of IPC, this is not a rarest of the rare case where the only available option Page 70 of 70 is to snuff out the life of the convict. Therefore, while substituting the death penalty, the accused-persons are sentenced to suffer life imprisonment.
SENTENCE [129] Insofar as the conviction for the offence under Sections- 363/376A IPC and Section-4 of the POCSO Act is concerned, for the reason stated above, the said charges are not proved and the conviction is set aside.
[130] Insofar as the conviction with regard to the offences punishable under Sections-302 and 201 of IPC is concerned, for the reason stated above, the accused persons are convicted for the life imprisonment and other sentences of the trial Court against the accused- persons to remain unaltered and shall run concurrently.
[131] The order of death sentence passed by the learned Special Judge, Gomati Judicial District, Udaipur, stands modified to the extent as indicated above. Accordingly, the appeals and the death sentence stands disposed of. Pending application(s), if any, also stands disposed of.
[132] Send down the LCRs forthwith.
JUDGE JUDGE
A.Ghosh