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TMI Blog2007 (1) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... hati. Appellant No. 1 was a night chawkidar of the waiting room of the said Net Work Travels. He represented that they could stay there for the night and therefore should not have any apprehension in regard to their safety. Their luggage was carried by the appellant No. 1 to the waiting room. The waiting room had two openings. It was covered by grills. Only the front gate was open, which was kept under lock and key, the key whereof was with the appellant No. 1. 2. The family of P.W.23 went out for dinner and came back to the said waiting room. He and both his children slept. Anima Deb (P.W.22), mother of the deceased, however, kept on sitting. Appellant No. 1 insisted on her repeatedly that she should go to sleep stating that as the waiting room would be locked, there was nothing for her to worry about. As she had not been sleeping, the appellant No. 1, allegedly, scolded her to do so. At that time, a bus bearing No. AS-25-C-1476 arrived at the said bus stop. Putul Bora - Appellant No. 2 was the 'handyman' of the said bus. While the Manager, Driver and the Conductor slept in the said bus, he did not. He was seen talking with the appellant No. 1. 3. Anima Deb-P.W.22 sl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation, the appellant No. 1 made a confessional statement before the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 ('the Code' for short). He gave a vivid description as to how the offence was committed by him and the appellant No. 2. On completion of investigation, a charge-sheet was filed against the appellants. They were convicted by the learned Sessions Judge, Kamrup and sentenced to death. An appeal preferred by them, by reason of the impugned judgment, has been dismissed by the High Court. The appellants are, thus before us. At our request, Ms. Vibha Datta Makhija, learned Counsel assisted us as Amicus Curiae in the matter. 7. Evidently, there was no eye-witness to the occurrence in this case. Nobody had seen the appellants lifting the girl, committing rape and murdering her. The entire prosecution case is based on circumstantial evidences. The circumstances, which found favour with the learned Sessions Judge as also the High Court, are: As against Appellant No. 1: i) The confession of the appellant No. 1 recorded by Smt. Nirupama Rajkumari, Judicial Magistrate, 1st Class at Guwahati (P.W.8). ii) Appellant No. 1 was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure on P.W.2-Shri Kapil Kumar Paul to allow him to leave Paltan Bazar bus stand with his vehicle. 8. Ms. Vibha Datta Makhija, learned Amicus Curiae, in support of the appellants would submit: a) There are many missing links in the chain which have not been appreciated by the courts below in their proper perspective. b) Seizure of the under garments of the appellants is not free from doubt as the seizure witnesses clearly stated that they had visited police station at different points of time and thus, they could not be witnesses to seizure; c) The under garments, which were purported to have seized, had not been sent for chemical examination and thus, inference drawn by the courts below that white stains were semen stains, had not been established. d) Although, urine and blood samples of the appellants were taken, the same having not been sent for chemical analysis, an adverse inference in this behalf should be drawn against the prosecution. e) In the vaginal swap obtained by the doctor, no semen was found. The Forensic Science Laboratory Report was not brought on record and thus, deliberate withholding of material must be held to have weakened the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut even at the railway station. The bus bearing No. AS-25-C-1476, in which the appellant No. 2 was working as a 'handyman, left at about 6.30 a.m. for Jorhat. The dead body was detected at about 9 a.m. The Manager of the Net Work Travels himself lodged the First Information Report suspecting the appellant No. 1 as also the driver, conductor and the 'handyman of the bus bearing No. AS-25-C-1476, as having committed the offence. The said bus was intercepted at about 10 a.m. and they were brought to the police station. P.W.22-the mother of the victim saw the appellants herein talking to each other. According to her she was goaded to go to sleep; she was even threatened. 12. Appellant No. 2 did not have any injury on his face earlier. Shri Kamal Goswami, the Manager of the Net Work Travels, who had travelled with the appellant No. 2 in the same bus, in no uncertain terms stated that while he went to sleep, at about 2/2.30 p.m. he suddenly felt a touch on his leg and found the appellant No. 2 moving to the upper bunker of the said vehicle. He had been wearing a long pant, although he had been wearing only a jangia while traveling from Nagaon to Guwahati. He had heard that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... always be with the chawkidar. 16. We may now consider the manner in which the confessional statement made by the appellant No. 1 was recorded. He was admittedly brought to the Court of Smt. Nirupama Rajkumari, the Judicial Magistrate, 1st Class at Guwahati (P.W.8), for getting his statement recorded on 24.7.2002. The voluntariness and truthfulness of the confession is not in dispute. Appellant No. 1 was produced before P.W.8 in her official Chamber at about 4.45 p.m. He was warned that the confession made by him might be used in evidence against him. She recorded the confessional statement of the appellant No. 1 being satisfied as regards the voluntariness thereof. The said confessional statement reads as follows: I am the night watchman of the Paltan Bazar counter of Network travels. On 13/7/02 I was on duty at the counter. Around 10.30 that night a bus arrived from Dharmanagar. Some passengers : from that bus came and requested me to allow them to stay at the counter for the night. The group comprised a man, two women a girl of about 8 or 9 and a child of about 3 or 4. I allowed them to sleep at the counter. Around 1.30 am one 'NR Super' bus (No. 1476) arrived from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at you were put in the charge in the office peon in her chamber (office) at 1.30 PM you were produced and then again at 4.45 PM for recording your statement. Ans : Yes, I was produced before her. Q.No. 44 : It is also in her evidence that at your production again she again explained to you the import of confession and you expressed your willingness to give confessional statement. What is your say? Ans : Yes I, expressed my willingness to give confessional statement. I understand her all questions (sic) put to me. Q.No. 45 : It is also in her evidence that inspite of repeated caution you were sanguine to give a confessional statement about your guilt. What is your say? Ans : I was sanguine to given confessional statement because I was repenting to my misdeed that I did. Q.No. 46 : It is also in her evidence that you voluntarily gave confessional statement, what is your say? Ans. : Yes, I voluntarily gave my confessional statement because I committed the offence. I am guilty of the offence. Q.No. 47 : It is also in her evidence that she recorded your confessional statement and the statement was read over to you and put your signatures having fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t confessions whenever and wherever made to the police, or while in the custody of the police unless made in the immediate presence of a magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act. Section 164, however, makes the confession before a Magistrate admissible in evidence. The manner in which such confession is to be recorded by the Magistrate is provided under Section 164 of the Code of Criminal Procedure. The said provision, inter alia, seeks to protect an accused from making a confession, which may include a confession before a Magistrate, still as may be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should some time, in our opinion, be more intrusive than what is required in law. [See Babubhai Udesinh Parm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true 22. We may also notice that in Sidharth and Ors. v. State of Bihar 2005Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was the Conductor of bus No. AS-106- 5996 and that you were on the campus. Is that true? Ans : That is true. Q.36 : Witness No. 5 has stated that he is the owner of bus No. AS-25-C-1476; that the manager informed him over telephone that a girl had gone missing from the waiting room of Network travels; that he then came and went to Paltan Bazar police station; and that the police seized your undergarments. Is that true? Ans : That is true. Q.42 : Witness No. 9 he stated that in his presence Paltan Bazar Police seized, by ext.6, your undergarments containing white stains. What is your statement? Ans : That is true. Q.84 : The following morning you and the driver and the conductor started from Jorhat by that bus, and the police seized the bus at Kahara with you all. Is that true? Ans : That is true. Q.96 : Did the police seized your undergarments that had white stains on it? Ans : That is true. 25. Indisputably, Section 30 of the Indian Evidence Act, 1872, in a situation of the present nature, can be taken aid of. The courts below did take into consideration the confessional effect of the statements made by the appellant No. 1 as agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by an accused though it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue of Section 30 of the Indian Evidence Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime. The amount of credibility to be attached to a retracted confession would depend upon the circumstances of each particular case . It was further opined: On the evidence in the case the confession of P was voluntary and true and was strongly corroborated in material particulars both concerning the general story told in the confession concerning the crime and the appellant's connection with crime. {See also Navjot Sandhu (supra) and Jaswant Gir v. State of Punjab (2005) 12 SCC 438 35. Both the appellants had accepted their presence at the place of occurrence. Appellant No. 2 had accepted that there were injuries on his face. He also accepted that there were stains in his seized undergarment. 27. Ms. Makhija may be correct in saying that all the witnesses to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be tested by the touchstone of law relating thereto as laid down by this Court in Hanumant Govind Nargundkar v. State of M.P. 1953CriLJ129 . {See Sharad Birdhichand Sarda v. State of Maharashtra 1984CriLJ1738 .} 31. In Hodge's case 168 ER 1136, it was held: Alderson, B., told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person. He then pointed out to them the proneness of the human mind to look for and often slightly to distort the facts in order to establish such a proposition forgetting that a single circumstance which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt. 32. Appellant No. 1's involvement in the offence stands proved beyond all reasonable doubt. Apart from his conduct, his confessional statement, which is admissible in evidence under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. (SCC p.489, para 38) In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus. It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper 'mahzar', are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Singh v. State of Punjab 2007CriLJ298 , this Court, in a case where the death was not found to have been intended to be caused, was of the opinion that no case under Section 302 of the Indian Penal Code was made out stating: Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases.{See also Sheikh Ishaque and Ors. v. State of Bihar 1995CriLJ2682 , Rony v. State of Maharashtra 1998CriLJ1638 , Bachan Singh v. State of Punjab 1980CriLJ636 and Machhi Singh (supra).} This aspect of the matter has recently been considered at some length by this Court in Aloke Nath Dutta (supra). 39. There is another aspect of this matter which cannot be overlooked. Appellant No. 1 made a confession. He felt repentant not only while making the confessional statement before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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