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TMI Blog2011 (1) TMI 1595X X X X Extracts X X X X X X X X Extracts X X X X ..... th sentence passed by the trial Court into that of life imprisonment. Against the same judgment, Criminal Appeal No. 1259 of 2007 is filed by Mahendra Hembram challenging his life imprisonment awarded by the trial Court and confirmed by the High Court. Against the acquittal of rest of the accused by the High Court, the Central Bureau of Investigation (in short the CBI ) filed Criminal Appeal Nos. 1357-1365 of 2005. Since all the appeals arose from the common judgment of the High Court and relating to the very same incident that took place in the midnight of 22.01.1999/23.01.1999, they are being disposed of by this judgment. 3. The case of the prosecution is as under: (a) Graham Stuart Staines, a Christian Missionary from Australia, was working among the tribal people especially lepers of the State of Orissa. His two minor sons, namely, Philip Staines and Timothy Staines were burnt to death along with their father in the midnight of 22.01.1999/23.01.1999. The deceased-Graham Staines was engaged in propagating and preaching Christianity in the tribal area of interior Orissa. Manoharpur is a remote tribal village under the Anandapur Police Station of the District Keonjhar of Orissa. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara Singh into life imprisonment and confirmed the life imprisonment imposed on Mahendra Hembram and acquitted all the other accused persons. Questioning the conviction and sentence of life imprisonment, Dara Singh and Mahendra Hembram filed Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007 respectively and against the acquittal of rest of the accused, CBI filed Criminal Appeal Nos. 1357-65 of 2005 before this Court. 4. Heard Mr. KTS Tulsi and Mr. Ratnakar Dash, learned senior counsel for the accused/Appellants and Mr. Vivek K. Tankha, learned Addl. Solicitor General for the CBI. 5. Mr. K.T.S. Tulsi, learned senior counsel appearing for Rabindra Kumar Pal @ Dara Singh (A1) and other accused in the appeals against acquittal filed by the CBI, after taking us through all the relevant materials has raised the following contentions: (i) Confessions of various accused persons, particularly, Rabi Soren (A9), Mahadev Mahanta (A11) and Turam Ho (A12) under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code of Criminal Procedure.') cannot be considered to be voluntary on account of the fact that all the co-accused persons were produced before the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence and that of the identification in TIP is of corroborative value. (v) The High Court committed a serious error in law in disregarding the confessional statements made under Section 164 of the Code of Criminal Procedure as well as the extra-judicial confessions made by Dara Singh (A1) and Mahendra Hembram (A3). (vi) The High Court wrongly held inculpatory confessional statements as exculpatory and on that ground rejected the same. The High Court failed to appreciate that in their confessional statements (A9), (A11), (A12), (A13) and (A14) have clearly admitted their plan for committing the crime. (vii) The adverse observations against (PW 55) the Investigating Officer of CBI, by the High Court are not warranted and in any event not supported by any material. (viii) Inasmuch as it was Dara Singh (A1) who originated and organized the heinous act and also prevented the deceased persons from coming out of the burning vehicle, the High Court ought to have confirmed his death sentence. (ix) The reasons given by the High Court in acquitting 11 persons are unacceptable and the judgment to that extent is liable to be set aside. 8. We have considered the rival submissions and perused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hicle on fire. The wheels of vehicle in which Graham Staines and his two sons were sleeping, bursted aloud, and they were burnt to death. The people who surrounded the vehicles raised slogans Jai Bajarang Bali and Dara Singh Zindabad . It is clear that she could identify only Ojen @ Suresh Hansda by face for the first time before the trial Court. No TIP was held to enable her to identify him. It shows that her identification of Ojen @ Suresh Hansda by face during trial was not corroborated by any previously held TIP. It is also clear that though she was examined by the State Police/CID, she never disclosed the name of Ojen @ Suresh Hansda. Though she claims to have identified Ojen @ Suresh Hansda by the light of the lamp (locally called Dibri) which she had kept in the Verandah, it must be noted that it was midnight during the peak winter season and there is no explanation for keeping the lamp in the Verandah during midnight. In her cross-examination, she admitted that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze. ii) The next eye-witness examined on the side of the prosecution is PW3, Paul Murmu. He admitted that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g towards the church. After walking about 100 ft. towards the vehicles, he found a large number of people delivering lathis blow on the vehicle in which Graham Staines and his two sons were sleeping and the other vehicle bearing No. 952 was already set on fire. Three-four persons belonging to the group caught hold of him by collar and restrained him from proceeding towards the vehicle. The witness could not recognize them as their heads were covered with caps and faces by mufflers. The witness went towards the village and called Christian people. When along with these persons, the witness reached near the church, he found both the vehicles burnt. Graham Staines and his two sons were also burnt to death. The next day, at about 9 P.M., the Officer-In-Charge (OIC) Anandpur PS showed his written paper and said that was the FIR and he had to lend his signature and accordingly, he lend his signature thereon. The witness had identified his signatures during his deposition in the court. Though he mentioned large number of miscreants, but they were not chargesheeted. In the FIR itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying Bajrang Bali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence, he found both the vehicles on fire. The witness stated that there were about 30-40 people armed with lathis and holding torches. They raised slogan 'Jai Bajarang Bali' and 'Dara Singh Zindabad. The fire was extinguished at 3 a.m. By that time, both the vehicles were completely burnt. Graham Staines and his two sons were completely charred and burnt to death. The witness could not identify any of the miscreants who set the vehicles on fire. vi) PW11, Bhakta Marandi was next examined on the side of the prosecution as eye-witness. He identified accused Dara Singh and Rajat Kumar Das in dock. His statement was neither recorded by local police nor by the CID but recorded by the CBI on 05.06.1999. He belongs to Village Manoharpur (the place of occurrence). His house is situated two houses apart from the church. He stated that the deceased Graham Staines was known to him. He last visited Manoharpur on 20.01.1999 along with his two sons and others in two vehicles. Graham Staines and his two sons used to sleep in the night inside the vehicle parked in front of the church. As usual in the night of 22.01.1999, Graham Staines and his two sons had slept in a vehicle. In the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axe, torches, bows and arrows. He heard cries raised by the minor sons of Graham Staines. He went near the vehicle, but 3 to 4 persons threatened him with lathis and, therefore, he retreated to his house. Thereafter, he went to the huts raised behind the church and called the persons staying there and went to the place of occurrence and found the vehicles set on fire. The miscreants put the straw inside the vehicle and set it on fire. They first set the empty vehicle on fire and thereafter the vehicle in which Graham Staines and his sons were sleeping. Both the vehicles caught fire and were burnt. The witness identified accused Dara Singh (A1), Dipu Das (A2), Ojen @ Suresh Hansda and Mahadev as the miscreants present at the scene of occurrence and taking part in the offence. The witness further stated that Ojen Hansda and Mahendra Hembram belonged to his village. He had identified accused Uma Kanta Bhoi in the TIP conducted at Anandpur Jail as one of the persons setting fire on the vehicle. He further stated that after the vehicles were burnt, the miscreants blew whistle thrice and raised slogan Jai Bajarang Bali and Dara Singh Zindabad . However, it is relevant to note that his om ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Os. ix) Raghunath Dohari (PW36), one of the eye-witnesses, identified accused Dara Singh, Harish Chandra, Mahadev and Turam Ho. His statement was not recorded by local police and the CID but it was recorded by the CBI on 04.12.1999. He belongs to village Manoharpur (place of occurrence). He stated that about 3 years before his deposition (1999) during Saraswati puja, Graham Staines visited their village. In the night, he heard the sound of beating. He got up and went to the church, where there was a gathering of 60-70 persons in front of the Church and they were beating the vehicles with sticks. They brought straw and set fire to the vehicles by burning straw. The witness identified accused Dara Singh (A1), Harish Chandra, Mahadev and Turam Ho as the miscreants who were in the gatherings and set fire to the vehicles. It is relevant to point out that apart from the police party, the Collector and other Police Officers though were camping at the place of occurrence, the fact remains that this witness did not report the incident either to the concerned Investigating Officer or to the Collector for about four months. However, the fact remains that he identified some of the Appellants b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oharpur village and his house is located near the Church (the place of occurrence). He stated that Graham Staines visited their village about three years before his deposition in the Court (January, 1999). He came there on Wednesday and stayed till Friday. On Friday night, Graham Staines and his two sons slept in a vehicle parked in front of the church. In the midnight, his mother (PW2) heard the beating sounds of vehicle and woke him up. He found 50-60 persons beating the vehicle by lathis in which Graham Staines and his two sons had slept. Three-four of them put the straw beneath the empty vehicle and lit the straw by matchsticks. After setting the empty vehicle ablaze, those persons put straw beneath the vehicle of Graham Staines and his two sons and ignited the same. Those two vehicles caught fire and began to burn. The witness identified four persons, namely, Dara Singh (A1), Turam Ho (A12), Daya Patra (A14) and Rajat Das (A2) as the persons beating the vehicle and setting on fire. The fact remains that admittedly he did not report the incident to his mother about what he had seen during the occurrence. He also admitted that there was a police camp from the next day of the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans given in his name and each one of the witnesses asserted the said aspect insofar as they are concerned. We have also adverted to the fact that none of these witnesses named the offenders in their statements except few recorded by I Os in the course of investigation. Though an explanation was offered that out of fear they did not name the offenders, the fact remains, on the next day of the incident, Executive Magistrate and top level police officers were camping the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable to look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier TIP. Though some of them were identified by the photographs except (A1) and (A3), no other corroborative material was shown by the prosecution. 13. Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. Learned Addl. Solicitor General, in support of the prosecution case about the photo identifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. It was further held that the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath. 14. In Umar Abdul Sakoor Sorathia v. Intellige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the vehicles, it was pointed out that PW 23 - Joseph Marandi (brother of PW 15)/Christian/15 years at the time of incident) has stated that 20-22 persons surrounded the vehicle. On the other hand, PW 39 - Soleman Marandi and PW 10 - Nimai Hansda deposed that 30/40 persons surrounded the vehicle. PW 15 - Mathai Marandi found 40/50 persons were beating with lathis. PW 43 - Lablal Tudu (son of PW 2) deposed that 50/60 persons were beating the vehicle whereas PW 2 - Basi Tudu found 60 persons going towards the church. PW 3, Paul Murmu found 60/70 persons putting straw beneath the vehicle and setting fire. PW 36 - Raghunath Dohal mentioned that about 60-70 people gathered in front of the church. b) As regards straw being kept on the roof of the vehicle to prevent cold, PWs 3, 10, 11, 15, 36, 39, 43, 45 and 52 mentioned different versions. c) With regard to whether there was a light or not which is vital for identification of miscreants prior to vehicle caught fire, PW 2 has stated that Moon had already set and he identified Chenchu and A 7 in the light of lamp (dibri) put in the verandah. On the other hand, PW 5, who was 11 years old at the time of evidence has mentioned that it was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distance was 200 ft and finally PW 32 has stated the church was visible from the place of Nagin dance. j) With regard to distance between place of occurrence and Nagin dance, PW 15 has mentioned the distance is 200 ft. PW 32 has stated that vehicles were visible from the place of Nagin dance, PW 36 has stated Nagin dance staged 10-12 houses apart from Church at front side whereas PW 39 has stated Nagin dance staged 4 houses apart from Chruch and PW 43 has stated that it was staged 5 houses apart from church and he admitted that he was not sure of the distance between church and the place of Nagin dance. k) With regard to their arrival at the place of occurrence, PW 11 has stated that PWs 4, 15 and 23 came to the place of occurrence an hour after the miscreants left the place whereas they deposed that they were present there from the beginning. PW 10 has stated that he woke up on hearing bursting and beating sound. PW 15 has deposed that he went to the huts behind the church and called PWs 10, 3 and others. PW 3 has stated that he was woken up by PW 10. 17. By pointing out these contradictions, Mr. Tulsi submitted that the presence of these witnesses becomes doubtful. However, if we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he presence of the advocate of the person accused of an offence: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is bear, made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect. I have explained to (name) that he is not bound to make a confession and that, if he does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice custody. It was pointed out that he also stated in his statement under Section 313 Code of Criminal Procedure that he was beaten by the investigating agency. (d) The next instance relates to Umakanta Bhoi, Accused No. 13 who refused to make a statement under Section 164 Code of Criminal Procedure prayed by I.O. to be put for 16.03.1999 for recording statement. It was directed to jail authority to keep the accused under calm and cool atmosphere. A 13 was produced from Judicial Custody for recording statement under Section 164 Code of Criminal Procedure and he refused to make a statement. However, on 31.08.1999, he made a confessional statement. (e) In the case of Dayanidhi Patra, Accused No. 14, on 21.09.1999, he was arrested by the Investigating Agency. On 24.09.1999, Learned ASJ granted police remand for 7 days i.e. on 01.10.1999 and that on that day A 14 made a statement under Section 164 Code of Criminal Procedure It was pointed out that in his statement under Section 313 Code of Criminal Procedure the accused person stated that he was beaten by the investigating agency. 21. Before analyzing the confessional statements of various accused persons and its applicability and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Shivappa v. State of Karnataka (1995) 2 SCC 76, while reiterating the same principle it was held: 6. From the plain language of Section 164 Code of Criminal Procedure and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 Code of Criminal Procedure, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 Code of Criminal Procedure. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 Code of Criminal Procedure and the rules framed by the High Court is imperative and its non- compliance goes to the root of the Magistrate's jurisdiction to record the confession and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with. 8. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the Appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the Appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: I have not stated to the accused that I am a Magistrate and further admitted: I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement. The Magistrate, PW 17 also admitted that at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore, a confession does not violate any one of the conditions operative under Sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. That shows how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary. A strict and faithful compliance with Section 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee that the confession is voluntary. The failure to obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used. 97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts. 25. We may make it clear that in Kashmira Singh this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker. The legal position concerning confession vis- -vis the confessor himself has been well-nigh settled by this Court in Sarwan Singh Rattan Singh v. State of Punjab as under: In law it is always open to the court to convict an accused on his confession itself though he has retracted it 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW34, Judicial Magistrate recorded the confessional statement of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi Patra. It is the claim of Mr. K.T.S. Tulsi, learned senior counsel for the accused, that the evidence of PW29 and PW34, Judicial Magistrates shows that they were blissfully unaware of the stringent responsibility cast on them by Section 164 Code of Criminal Procedure. According to him, their evidence create an impression that they were not aware of the difference between the police custody and judicial custody nor do they seem to understand the significance of Section 164 Code of Criminal Procedure He pointed out that why the first four pages in case of each of the accused persons is not signed by the accused is not explained. They neither asked any searching questions regarding the nature of custody either from the accused persons or from police nor did they scrutinize the records to ascertain the same from remand orders. He also pointed out that none of the accused who have confessed had been given the assurance that if they refuse to make any confession, they would not be remanded to police custody. This assurance is required for an accused to make an informed decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stody. It is further seen that both of these accused, in their confessional statements, made exculpatory statements. 32. PW34, Judicial Magistrate, recorded the confessional statement of accused Mahadev Mahanta on 08.07.1999 immediately after his production before him from the police custody. PW34 was directed by the Addl. C.J.M. to record the confessional statement of Mahadev Mahanta. It was noted that he was given only 10 minutes' time for reflection after his production from police custody. The other accused who made the confessional statement is Dayanidhi Patra whose statement was recorded by PW34. The High Court, on corroboration of the confessional statement, had found that the entire confessional statement is exculpatory and he also retracted from the confession. It was further found that this confessional statement was made long after the charge-sheet was filed i.e. on 22.06.1999. The analysis of evidence of PWs 29 34 - Judicial Magistrates shows that many of the confessional statements were recorded immediately after production of the maker after long CBI custody and in some cases after such statements were made and recorded by the Judicial Magistrate, the maker was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution witnesses could not pin-point and identify the role of each accused. 35. Another question which we have to consider is whether the Police (CBI) had the power under the Code of Criminal Procedure to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Code of Criminal Procedure in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal, the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11-Judge Bench decision of this Court in The State of Bombay v. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10 : AIR 1961 SC 1808. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M.P. Sharma and Ors. v. Satish Chandra, District Magistrate, Delhi an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'. 12. ....A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'. 16. In view of these considerations, we have come to the following conclusions: (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the argument of Mr. Ratnakar Dash, learned senior counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived by the High Court. Additional factors-Mahendra Hembram (A3). 36. Coming to the role of Mahendra Hembram A3, the prosecution very much relied on his letters dated 01.02.2002 and 02.02.2002 addressed to the Sessions Judge wherein he confessed his guilt. Though a serious objection was taken about the admissibility of these two letters, the contents of these two letters addressed to the Sessions Judge in the course of trial lend ample corroboration to his identification before the trial Court by Joseph Marandi, PW 23. Even in his case, it is true that there was no TIP conducted by Judicial Magistrate. However, inasmuch as when he was facing trial, he sent the above-mentioned two letters to the Sessions Judge which lend corroboration to his identification in the trial court by PW 23 and rightly observed by the High Court, the same can be safely relied upon. The evidence reveals that Rolia Soren (PW 4) accompanied by PW 23 soon after the incident proceeded to inform the same to the police and finding the police to have already left for Manoharpur, returned back and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 313 Code of Criminal Procedure on 04.02.2002, he has admitted to have set fire to the vehicles and in his statement recorded under Section 313 Code of Criminal Procedure on 24.03.2003 has admitted to have filed petitions pleading guilty and to have stated in his earlier examination under Section 313 Code of Criminal Procedure. that he had set fire to the vehicles. There is no impediment in relying on a portion of the statement of the accused and finding him guilty in consideration of the other evidence against him as laid by the prosecution. 40. It is clear that the letters marked as (Ex. 213) were written by Mahendra Hembram though denied by him, contents of the said two letters amount to confession, or in any event admission of important incriminating materials. He had been identified before the trial Court by Joseph Marandi (PW23) as a participant in the crime. As rightly observed by the High Court, contents of these two letters lend support to the evidence in identification before the trial Court for the first time as narrated by PW23. In this way, his identification for the first time in the trial Court is an exceptional case and even in the absence of further corrobo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant to point out that all the eye-witnesses examined by the prosecution consistently stated that during occurrence the miscreants raised slogans in the name of Dara Singh as Dara Singh Zindabad . The story of this slogan was also mentioned in the first information report lodged soon after the occurrence. This slogan is in the name of Dara Singh, corroborates the identification before the trial Court for the first time. In addition to the same, some of the witnesses identified Dara Singh by photo identification. We have already highlighted the evidentiary value of photo identification and identifying the person in the dock. In other words, we have pointed out that those materials coupled with the other corroborative evidence are permissible. In addition to the same, all the witnesses mentioned about the blowing of whistle by Dara Singh. 43. Though the trial Court awarded death sentence for Dara Singh, the High Court after considering entire materials and finding that it is not a rarest of rare case, commuted the death sentence into life imprisonment. The principles with regard to awarding punishment of death have been well settled by judgments of this Court in Bachan Singh v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses and found that certain aspects have been established and accepted by the trial Court as well as the High Court. 45. Finally, insofar as the appeals filed by the CBI against the order of acquittal by the High Court in respect of certain persons, it was pointed out that when two views are possible, the one in favour of the accused should be accepted. It is true that the presumption of innocence is a fundamental principle of criminal jurisprudence. Further, presumption of innocence is further reinforced, reaffirmed and strengthened by the judgment in his favour. [Vide State of Uttar Pradesh v. Nandu Vishwakarma and Ors. (2009) 14 SCC 501 (Para 23), Sambhaji Hindurao Deshmukh and Ors. v. State of Maharashtra (2008) 11 SCC 186 (Para 13), Rahgunath v. State of Haryana (2003) 1 SCC 398 (Para 33) and Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57 (Paras 6 7)]. In the earlier paragraphs, we have highlighted the weakness and infirmities of the prosecution case insofar as acquitted accused who are all poor tribals. In the absence of definite assertion from the prosecution side, about their specific role and involvement, as rightly observed by the High Court, it is not safe to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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