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Tuesday, March 4, 2014

Mitigating circumstances - for commuting death to life - Residual Doubts like non conducting identification parade , absence of specific question under sec. 313 Cr.P.C.about the overt act of accused - Acquittal of majority accused - Less accused than reported facing prosecution - absconding of co accused - all are mitigating circumstances to show that this accused alone is not cause for the death of more than 15 members - So the death was commuted to Life Imprisonment for 20 years =Ashok Debbarma @ Achak Debbarma .. Appellant Versus State of Tripura .. Respondent = 2014 (March . Part) judis.nic.in/supremecourt/filename=41283

Mitigating circumstances - for commuting death to life - Residual Doubts like non conducting identification parade , absence of specific question under sec. 313 Cr.P.C.about the overt act of accused - Acquittal of majority accused - Less accused than reported facing prosecution - absconding of  co accused - all are mitigating circumstances to show that this accused alone is not cause for the death of more than 15 members - So the death was commuted to Life Imprisonment for 20 years =

  Identification in Court is a best piece of evidence

In Malkhansingh v. State of M.P.  (2003)  5  SCC  746,  this
Court clarified that the Test Identification Parade  is  not  a  substantive
piece of evidence and to hold the Test Identification  Parade  is  not  even
the rule of law, but a rule of prudence so that the  identification  of  the
accused inside the Court room at the trial, can be safely relied  upon.   We
are of the view that if the witnesses  are  trustworthy  and  reliable,  the
mere fact that no Test Identification Parade was  conducted,  itself,  would
not be a reason for discarding  the  evidence  of  those  witnesses. 

This
Court in Dana Yadav alias Dahu (supra) has examined the points  on  the  law
at great length and held that the evidence of identification of  an  accused
in Court by a witness is substantive  evidence,  whereas  identification  in
Test  Identification  Parade  is,  though  a  primary  evidence,   but   not
substantive  one  and  the  same  can  be  used  only  to  corroborate   the
identification of the accused by witness  in  the  Court.   So  far  as  the
present case is concerned, PW10 and PW13  have  identified  the  accused  in
open  Court  which  is  the  substantive  piece   of   evidence   and   such
identification by the eye-witnesses has not  been  shaken  or  contradicted.

Mere absence of the name of the accused in sec.161 is not fatal -
In our view, if the evidence tendered  by  the  witness  in
the witness box is  creditworthy  and  reliable,  that  evidence  cannot  be
rejected merely because a particular statement made by  the  witness  before
the Court does not find a place in the statement recorded under Section  161
CrPC.  Police officer recorded statements of witnesses in an incident  where
15 persons lost their lives, 23 houses were set ablaze and large  number  of
persons were injured.    PW10 lost  his  real  brother  and  PW13  lost  his
daughter as well as his wife and in such a time of grief, they would not  be
in a normal state of mind to recollect  who  were  all  the  miscreants  and
their names. The witnesses may be knowing the persons  by  face,  not  their
names.  Therefore, the mere  fact  that  they  had  not  named  the  accused
persons in Section 161 statement, at that time, that would not be  a  reason
for discarding the oral evidence if their evidence is found to  be  reliable
and creditworthy.
Admission while answering a question under sec.313 Cr.P.C. can be considered eventhough taken not on oath

This Court in State of Maharashtra v. Sukhdev Singh  and  another  (1992)  3
SCC 700 held that  since  no  oath  is  administered  to  the  accused,  the
statement made by the accused under Section 313 CrPC will  not  be  evidence
stricto sensu and the accused, of course, shall not  render  himself  liable
to punishment merely on the basis  of  answers  given  while  he  was  being
examined under Section 313  CrPC.    But,  Sub-section  (4)  says  that  the
answers given by the accused in response to his  examination  under  Section
313 CrPC can be taken into  consideration  in  such  an  inquiry  or  trial.
This Court in Hate Singh Bhagat Singh (supra) held that  the  answers  given
by the accused under Section 313 examination can be  used  for  proving  his
guilt as much as the evidence given by the prosecution  witness.  In  Narain
Singh v. State of Punjab (1963) 3 SCR 678, this Court  held  that  when  the
accused confesses to  the  commission  of  the  offence  with  which  he  is
charged, the Court may rely upon the confession and proceed to convict  him.
whether this is one of the rarest of rare  case,
as held by the trial Court and affirmed by the High Court, so  as  to  award
death sentence to the accused.
Residual doubt and not reasonable doubt
In our criminal justice system, for recording guilt of the accused,  it
is not necessary that the prosecution should prove the  case  with  absolute
or mathematical certainty,  but  only  beyond  reasonable  doubt.   Criminal
Courts, while examining whether any doubt is beyond  reasonable  doubt,  may
carry in their mind, some “residual  doubt”,  even  though  the  Courts  are
convinced of the  accused  persons’  guilt  beyond  reasonable  doubt.   For
instance, in the instant case, it was pointed out  that,  according  to  the
prosecution, 30-35 persons armed with weapons such as fire arms, dao,  lathi
etc., set fire to  the  houses  of  the  villagers  and  opened  fire  which
resulted in the death of 15  persons,  but  only  11  persons  were  charge-
sheeted and, out of which,  charges  were  framed  only  against  5  accused
persons.  Even out of  those  5  persons,  3  were  acquitted,  leaving  the
appellant and another, who is absconding.   Court,  in  such  circumstances,
could have entertained a “residual doubt” as to whether the appellant  alone
had committed the entire crime, which is a  mitigating  circumstance  to  be
taken note of by the court, at least  when  the  court  is  considering  the
question whether the case falls under the rarest of rare category.
COUNSEL’S INEFFECTIVENESS:
32.   Can the counsel’s ineffectiveness in conducting a criminal trial  for
the defence, if established, be a  mitigating  circumstance  favouring  the
accused, especially to escape from the award of  death  sentence. 
Conclusion
We have  already  explained  few  circumstances  which  favoured  the
accused in the instant case, to hold it as not a rarest of rare case, which
are that the appellant alone could not have executed such  a  crime,  which
resulted in the death of 15 persons and leaving so many injured and setting
ablaze 23 houses, that is the entire elements of the crime could  not  have
been committed by the appellant alone.  Further, the appellant is a tribal,
stated to be a member  of  the  extremist  group  raging  war  against  the
minority settlers,  apprehending  perhaps  they  might  snatch  away  their
livelihood and encroach upon their properties,  possibly  such  frustration
and neglect might have led them to  take  arms,  thinking  they  are  being
marginalized and ignored by the society.     Viewed in that perspective, we
are of the view that this is not a rarest of rare case for  awarding  death
sentence.  All the same, considering the  gravity  of  the  crime  and  the
factors like extreme social indignation, crimes against innocent villagers,
who are a linguistic minority, which included women and children,  we  feel
it would be in the interest of justice to apply the principles laid down in
Swamy Shradananada (2) v. State of Karnataka (2008) 13 SCC 767.

42.    Consequently,  while  altering  the  death  sentence  to   that   of
imprisonment for life, we are inclined to fix the term of  imprisonment  as
20 years without remission, over and above the period of  sentence  already
undergone, which, in our view, would meet the  ends  of  justice.   Ordered
accordingly.

43.   The Appeals are, accordingly, disposed of.

  2014 (March . Part) judis.nic.in/supremecourt/filename=41283 
   K.S. RADHAKRISHNAN, VIKRAMAJIT SEN

                                                       REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NOS.47-48 OF 2013



Ashok Debbarma @ Achak Debbarma   .. Appellant

                                   Versus

State of Tripura                        .. Respondent




                               J U D G M E N T



K. S. RADHAKRISHNAN, J.


1.    We are, in this case, concerned with a  tragic  incident  in  which  a
group of Armed Extremists at Jarulbachai village in the night of  11.2.1997,
set fire to twenty houses  belonging  to  a  group  of  linguistic  minority
community of Bengal settlers, in which 15 persons lost  their  lives,  which
included  women  and  children  and  causing  extensive  damage   to   their
properties.

2.    The Takarajala Police Station, West Tripura got information about  the
incident at about 11.00  p.m.  on  11.2.1997  from  Jarullabachai  DAR  Camp
stating that extremists had set on fire a number of  houses  at  Jarulbachai
village and that the people had  been  shot  dead  and  injured  grievously.
Information  so  received  was  entered  into  the  General  Diary  at   the
Takarajala Police Station in the  form  of  Entry  No.292  dated  11.2.1997.
PW18  (Officer-in-Charge)  of  Takarajala   Police   Station   visited   the
Jarullabachai DAR Camp, cordoned off the area, and conducted  search.   Most
of the houses of the village were found gutted by fire.   On the very  night
of the occurrence, as many as 13 dead bodies were  found  lying  at  various
places and three persons  were  found  lying  injured.    A  formal  written
information, as regards the occurrence, was received  by  the  investigating
officer from one Gauranga Biswas (PW2) from the place of occurrence.   Based
on  the  written  information,  which  was  so  received  at  the  place  of
occurrence,  Takarajala  Police  Station  Case   No.12/97   under   Sections
148/149/302/326/307/436 IPC read with Section 27(3) of the  Arms  Act,  1959
was registered.  Later, more number of dead bodies were found and number  of
dead persons increased to 15, so also the number of injured  persons.   Dead
bodies as well as injured persons were taken to GB Hospital  at  about  4.00
p.m. on 12.2.1997.   Inquests were held on the dead bodies  and  post-mortem
examinations were also conducted.  PW.18, the Investigating Officer,  seized
vide seizure list (Ex.11), two empty cartridges  and  some  ashes  from  the
place of occurrence.   Looking  at  the  serious  nature  of  the  evidence,
investigation was handed  over  to  the  Criminal  Investigation  Department
(CID) and PW20 (a DSP) was entrusted with the investigation.

3.    PW20, on completion of the investigation, filed a  charge-sheet  under
Sections 148/149/302/326/307/436 IPC read with Section 34 IPC and  27(3)  of
the Arms Act, 1959 read with Section 34 IPC against  11  persons,  including
(1) Rabi Deb  Barma,  (2)  Gandhi  Deb  Barma,  (3)  Mantu  Deb  Barma,  (4)
Sambhuram Deb Barma, (5) Budhraj Deb Barma.   Charge-sheet  was  also  filed
against some other accused, who were found  absconding,  namely,  (1)  Subha
Deb Barma, (2) Sandhya Deb Barma, (3) Samprai Deb  Barma,  (4)  Falgoon  Deb
Barma, (5) Bijoy Deb Barma, (6) Budh Deb Barma, (7) Mangal  Deb  Barma,  (8)
Sankar Deb Barma, (9), Kaphur Deb Barma, (10)  Sandhyaram  Deb  Barma  alias
Phang and (11) Ashok Deb Barma (i.e. the Appellant herein).  Out of  the  11
persons named  in  the  charge-sheet,  chargers  were  framed  against  five
persons under Sections 326, 436 and 302 read with Section 34  IPC  and  also
Section 27(3) of the  Arms  Act,  1959  read  with  Section  34  IPC,  which
included the Appellant herein.  All the above-mentioned persons pleaded  not
guilty and claimed to be tried.


4.     The  prosecution,  in  order  to  establish  its  case,  examined  20
witnesses.  Two accused persons, namely, Gandhi  Deb  Barma  and  Ashok  Deb
Barma alias Ashok Achak (i.e. the  Appellant  herein)  were  examined  under
Section 313 CrPC and, in their examinations, they denied to  have  committed
the alleged offences.   Due to want of evidence, the trial  Court  acquitted
three persons vide its order dated 23.4.2005  under  Section  232  CrPC  and
only two accused persons, namely, Gandhi Deb Barma and the Appellant  herein
were called upon in terms of Section 232 CrPC  to  enter  on  their  defence
and, accordingly, the defence adduced evidence by examining two witnesses.


5.    The Additional Sessions Judge, West Tripura,  Agartala,  having  found
the Appellant and Gandhi Deb Barma guilty of  the  offences  under  Sections
326, 436 and 302 read with Section 34 IPC and  also  Section  27(3)  of  the
Arms Act, 1959 read with Section 34 IPC, declared both  the  accused  guilty
of the offences aforementioned and convicted them accordingly vide  judgment
dated 7.11.2005, on which date Gandhi Deb Barma  was  absent  since  he  was
absconding.  Judgment was, therefore, pronounced by the  Sessions  Judge  in
the absence of  the  co-accused  in  terms  of  Section  353(6)  CrPC.   The
Additional Sessions Judge then on 10.11.2005, after hearing the  prosecution
as well as the  accused  on  the  question  of  sentence,  passed  an  order
sentencing  the  Appellant  to  death  on  his  conviction  under   Sections
148/149/302/326/307/436 IPC read with Section 27(3) of the Arms  Act,  1959.


6.    The Additional Sessions Judge in  terms  of  provisions  contained  in
Section 366 (1) CrPC referred the matter to the High Court for  confirmation
of death sentence awarded to the Appellant, which was numbered  as  Criminal
Reference No.02/2005.   The Appellant also  preferred  Criminal  Appeal  (J)
94/2005.  Both the Appeals as well as the Reference were heard by  the  High
Court.   The High Court vide its  judgment  and  order  dated  5.9.2012  set
aside the conviction of the Appellant under Section 27(3) of the  Arms  Act,
1959.   However, the death sentence under Section 302 IPC read with  Section
34 IPC, in addition to the sentence passed for offence  under  Sections  326
and 436 read with  Section  34  IPC,  was  sustained,  against  which  these
Appeals have been preferred.


7.    Shri T.R. Venkita  Subramoniam,  learned  counsel  appearing  for  the
Appellant, submitted that the prosecution has miserably failed to  establish
beyond reasonable doubt the involvement of the Appellant in the incident  in
question.  Learned counsel pointed out that even though  20  witnesses  were
examined, only two witnesses viz. PW10 and PW13 in their deposition  in  the
Court had mentioned the name of the  Appellant,  which  is  nothing  but  an
improvement of the prosecution case, especially when the Appellant  was  not
named in the FIR.   Learned counsel also pointed out that PW10 and PW13  had
not mentioned the name of the Appellant in  their  statements  made  to  the
Police under Section 161 CrPC.   Learned  counsel  placed  reliance  on  the
judgment of this Court in Tahsildar Singh and another v. State of  U.P.  AIR
1959 SC 1012  and  Shashidhar  Purandhar  Hegde  and  another  v.  State  of
Karnataka (2004) 12 SCC 492 and submitted that the omission to  mention  the
name of the Appellant in the FIR as well as in  the  Section  161  statement
was a significant  omission  which  may  amount  to  contradiction  and  the
evidence of those witnesses should not have been relied upon  for  recording
conviction.

8.    Learned counsel also  pointed  out  that  the  prosecution  completely
erred in not conducting the Test Identification  Parade.   Consequently,  no
reliance could have been placed on the statement of witnesses  stating  that
they  had  seen  the  Appellant  participating  in  the  incident.   Placing
reliance on the judgment of this Court in Dana Yadav alias Dahu  and  others
v. State of Bihar (2002)  7  SCC  295,  learned  counsel  pointed  out  that
ordinarily if the accused is not named in the  FIR,  his  identification  by
the witnesses in Court should not be relied  upon.    Learned  counsel  also
submitted that the High Court has committed an error in taking note  of  the
fact that the Appellant  was  absconding  immediately  after  the  incident.
Such a presumption should not have been drawn by the Court, especially  when
the question regarding abscondance was not  put  on  the  Appellant  in  the
statement recorded while examining him  under  Section  313  CrPC.   Learned
counsel placed reliance  on  the  judgment  of  this  Court  in  Shamu  Balu
Chaugule   v. State of Maharashtra (1976) 1 SCC  438,  S.  Harnam  Singh  v.
State (Delhi Admn.) (1976) 2 SCC 819, Ranvir Yadav v. State of Bihar  (2009)
6 SCC 595 and Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953  SC
468.  Learned counsel submitted that, in any view, this is not a case  which
falls in the category of rarest of rare case warranting capital  punishment.


9.    Learned counsel submitted that the appellant is a tribal  coming  from
lower strata of the society, totally alienated from the main stream  of  the
society and such extremist’s upsurge might have occurred due to neglect  and
frustration.  Further, it was pointed out  that,  seldom,  people  like  the
appellant get effective legal assistance and while  applying  the  RR  test,
the question whether the appellant had got proper legal  assistance,  should
also be examined.  Learned counsel, after referring to few judgments of  the
U.S.  Supreme  Court,  submitted  that  the  Court,  while  considering  the
question of death  sentence,  should  also  examine  whether  there  is  any
“residual doubt” over the guilt of the accused.

10.   Shri Gopal Singh, learned  counsel  for  the  State,  highlighted  the
manner in which the entire operation was executed by a mob consisting of  30
to 35 persons.   Learned counsel submitted that they  mercilessly  fired  at
women and children and others with latest arms and  ammunitions  by  killing
as many as 15 persons, leaving large number of  persons  injured.    Learned
counsel pointed out that they set ablaze various  huts  in  which  poor  and
illiterate persons were living.  Many of the  persons  who  participated  in
the incident were known to the locals and the prosecution  has  examined  as
many as 20 witnesses, of which the evidence tendered by PW10  and  PW13  was
very crucial so far as  the  involvement  of  the  Appellant  is  concerned.
Learned counsel pointed out  that  the  Courts  have  rightly  believed  the
evidence of the  above-mentioned  witnesses  and  the  mere  fact  that  the
Appellant’s name  did  not  figure  in  the  initial  complaint  or  in  the
statement under Section 161 CrPC would  not  absolve  him  from  the  guilt,
since the involvement of the appellant has  been  proved  beyond  reasonable
doubt.  Learned counsel  also  submitted  that  there  is  no  necessity  of
conducting the Test Identification Parade since  the  accused  persons  were
known to the witnesses.   Learned counsel also submitted that  all  relevant
incriminating questions were put by the Court to the accused  while  he  was
examined under Section 313 CrPC and the answers given by the  accused  would
be sufficient to hold him  guilty  of  the  charges  levelled  against  him.
Learned counsel also submitted that both the trial  Court  as  well  as  the
High Court have correctly appreciated  the  oral  and  documentary  evidence
adduced and the Court rightly awarded death sentence, which falls under  the
category of rarest of rare case.

11.   We may indicate that though the trial Court as well as the High  Court
have found that both Gandhi Deb Barma and the Appellant were guilty  of  the
various offences levied against them, we are in  this  case  concerned  with
the Appeal filed by Ashok  Deb  Barma,  who  has  also  been  awarded  death
sentence by the trial Court, which was confirmed by the High Court.  At  the
outset, we may point out that the High Court is right in  holding  that  the
Appellant is not guilty under Section 27(3) of the Arms Act, 1959,  in  view
of the law declared by this Court in State of Punjab v. Dalbir Singh  (2012)
3 SCC 346, wherein this Court held that Section 27(3) of  the  Arms  Act  is
unconstitutional.   The fact that such dastardly acts  referred  to  earlier
were committed in the Jarulbachai village in the night of 11.2.1997, is  not
disputed.   The question that we are called upon to decide  is  with  regard
to the complicity of the accused/Appellant, who  was  found  guilty  by  the
trial Court as well  as  by  the  High  Court.    The  facts  would  clearly
indicate that, in this  case,  15  persons  were  brutally  and  mercilessly
killed and the  houses  of  villagers  with  all  household  belongings  and
livestock were buried to  ashes.   PW1,  an  injured  person,  had  given  a
detailed picture of what had happened on the fateful  day  and  he  was  not
cross-examined by  the  defence.    The  evidence  of  PW1  was  also  fully
corroborated by PW2.   PW18,  the  officer-in-charge  of  Takarajala  Police
Station, West Tripura, as already indicated, had visited the site  since  he
got information at the Jarullabachai DAR Camp.  At about 4.00 a.m. the  next
day, he had received the complaint from PW2, by the  time,  he  had  already
started investigation after getting information from Jarullabachai DAR  Camp
and on his  personal  visit  to  the  site.   In  other  words,  the  police
machinery had already been set in motion on the  basis  of  the  information
PW18 had already got and, it was during the course of investigation, he  had
received the complaint from PW2.  Though the  complaint  received  from  PW2
was treated as the First Information Report,  the  fact  remains  that  even
before  that  PW18  had  started   investigation.    Consequently,   written
information (Ex.1) received from PW2, at best, could be a statement  of  PW2
made in writing to the  police  during  the  course  of  investigation.   Of
course, it can be treated as a statement of PW2 recorded under  Section  161
Cr.P.C and the contents thereof could be used not as the  First  Information
Report, but for the purpose of contradicting PW2.

12.   PW20, the DSP (CID), as already indicated, was  later  entrusted  with
the investigation because of the seriousness of  the  crime.   PW20  visited
the place of occurrence and noticed that the entire hutments were gutted  by
fire, 35 families were affected by fire, 15  persons  had  been  killed  and
four seriously injured.   PW20,  during  investigation,  received  15  post-
mortem reports from  Dr.  Pijush  Kanti  Das  of  IGM  Hospital  (PW9),  who
conducted the post-mortem on the dead bodies.  PW20 had  also  forwarded  on
29.4.2011 one fire cartridge case to ballistic expert for his  opinion  and,
on 19.5.1997, he received the expert opinion of the same date to the  effect
that it was around 7.62 mm ammunition.   PW20  has  also  deposed  that  the
fire arm was AK47 rifle.  PW20 has also asserted that the  Appellant  was  a
person who was known to the locality and he remained as  an  absconder  from
the day of the occurrence.   The evidence of PW20 as well  as  the  evidence
tendered by PW9 would clearly indicate that the cartridge  seized  from  the
site was found to be of 7.62 mm ammunition and the bullets were  fired  from
an automatic fire arm like SLR and, in the instant case, the fire  arm  used
was nothing but an AK 47 rifle.

13.   Evidence of PWs6, 7 and 8, Medical Officers posted  in  G.B.  Hospital
at Agartala, would indicate that many of  the  persons,  who  had  sustained
gunshot injuries, were  treated  in  the  hospital  by  them  and  they  had
submitted their reports which were also marked in evidence.  The  fact  that
the fire arms were used in commission of the crime  was  fully  corroborated
by the evidence of PW20 read with evidence of PWs 6 to 9.

14.   We may now refer to the crucial evidence of some of the witnesses  who
had stated the involvement of the Appellant in the instant case.   PW10  has
clearly stated in his deposition that the accused  as  well  as  Gandhi  Deb
Barma (since absconding) were firing with  fire  arms,  due  to  which,  his
brother died on the spot with bullet injuries.   PW10  has  further  deposed
that there were around 30-35 members in the group, who had, either set  fire
to the huts or opened fire from their  fire  arms.    PW10,  in  his  cross-
examination, deposed that he had stated before the police that he  had  seen
Gandhi Deb  Barma  as  well  as  the  Appellant  opening  the  fires,  which
statement was not effectively cross-examined.  PW10’s version  that  he  had
seen the Appellant firing from his fire arm remained wholly unshaken.   PW10
asserted in his cross-examination that he had stated before the police  that
his brother died due to bullets fired  by  the  Appellant.   PW11  has  also
deposed that the extremists had killed 15 persons, injured large  number  of
persons and 23 houses were gutted in fire. PW11, of  course,  did  not  name
the appellant as such, but has fully corroborated the evidence  tendered  by
PW10. PW11’s evidence reinforces the evidence of PW10 that the Appellant  is
one of those persons who had attacked the villagers  and  set  fire  to  the
houses and injured or killed  large  number  of  men,  women  and  children.
PW14, a resident of the locality, has  also  corroborated  the  evidence  of
PW11.

15.   PW13 is one of the persons who got injured in the incident, lost  both
his son and wife in the firing occurred on the fateful  day.   PW13,  it  is
reported, was examined by the police on the night of the  incident  but,  of
course, he did name the appellant then, consequently, the  appellant’s  name
did not figure in the FIR.   PW13, in his evidence, deposed that  his  wife,
Saraswati, aged around 30 years  and  his  daughter,  Tulshi  aged  about  5
years, had died in the incident.  PW13 deposed that the miscreants  had  set
fire to his house and when he  wanted  to  come  out  of  his  house,  10-12
miscreants with fire arms fired at  him  and  he  sustained  injuries.  PW13
identified the accused in the Court.


16.    We have gone through the oral evidence of PW10 and PW13 and,  in  our
view, the trial Court and the High  Court  have  rightly  appreciated  their
evidence and the  involvement  of  the  Appellant  in  the  above  incident,
including the fact that he had fired at various people,  which  led  to  the
killing of relatives of PW10 and PW13.    We are of the view that since  the
accused persons were known to the witnesses  and  they  were  identified  by
face, the fact that no Test Identification Parade was conducted at the  time
of investigation, is of no consequence.  The  primary  object  of  the  Test
Identification Parade is to enable the witnesses  to  identify  the  persons
involved  in  the  commission  of  offence(s)  if  the  offenders  are   not
personally known to the  witnesses.    The  whole  object  behind  the  Test
Identification Parade is really to find whether or not the  suspect  is  the
real offender.  In Kanta Prashad v. Delhi Administration AIR  1958  SC  350,
this Court stated that the failure to hold the  Test  Identification  Parade
does not make the evidence of  identification  at  the  trial  inadmissible.
However, the weight to be attached to such identification would be  for  the
Court to decide and it is prudent to hold  the  Test  Identification  Parade
with respect  to  witnesses,  who  did  not  know  the  accused  before  the
occurrence.  Reference may also be made to the judgment  of  this  Court  in
Harbhajan Singh v. State of Jammu &  Kashmir  (1975)  4  SCC  480,  Jadunath
Singh and another v. State of UP (1970) 3 SCC 518 and  George  &  others  v.
State of Kerala and another (1998) 4 SCC 605.

17.   Above-mentioned decisions would indicate that while  the  evidence  of
identification of an accused at a trial is admissible as  substantive  piece
of evidence, would depend on the facts of a given case as to whether or  not
such a piece of evidence can be relied upon as the sole basis of  conviction
of an accused.  In Malkhansingh v. State of M.P.  (2003)  5  SCC  746,  this
Court clarified that the Test Identification Parade  is  not  a  substantive
piece of evidence and to hold the Test Identification  Parade  is  not  even
the rule of law, but a rule of prudence so that the  identification  of  the
accused inside the Court room at the trial, can be safely relied  upon.   We
are of the view that if the witnesses  are  trustworthy  and  reliable,  the
mere fact that no Test Identification Parade was  conducted,  itself,  would
not be a reason for discarding  the  evidence  of  those  witnesses.    This
Court in Dana Yadav alias Dahu (supra) has examined the points  on  the  law
at great length and held that the evidence of identification of  an  accused
in Court by a witness is substantive  evidence,  whereas  identification  in
Test  Identification  Parade  is,  though  a  primary  evidence,   but   not
substantive  one  and  the  same  can  be  used  only  to  corroborate   the
identification of the accused by witness  in  the  Court.   So  far  as  the
present case is concerned, PW10 and PW13  have  identified  the  accused  in
open  Court  which  is  the  substantive  piece   of   evidence   and   such
identification by the eye-witnesses has not  been  shaken  or  contradicted.
The trial Court examined in detail  the  oral  evidence  tendered  by  those
witnesses, which was accepted by the High Court and we find no error in  the
appreciation of the evidence tendered by those witnesses.

18.    The mere fact that the Appellant was not named in the statement  made
before the police under Section 161 CrPC and,  due  to  this  omission,  the
evidence of PW10 and PW13 tendered in the Court  is  unreliable,  cannot  be
sustained.  Statements made to the  police  during  investigation  were  not
substantive piece of evidence and the statements recorded under Section  161
CrPC can be  used  only  for  the  purpose  of  contradiction  and  not  for
corroboration.   In our view, if the evidence tendered  by  the  witness  in
the witness box is  creditworthy  and  reliable,  that  evidence  cannot  be
rejected merely because a particular statement made by  the  witness  before
the Court does not find a place in the statement recorded under Section  161
CrPC.  Police officer recorded statements of witnesses in an incident  where
15 persons lost their lives, 23 houses were set ablaze and large  number  of
persons were injured.    PW10 lost  his  real  brother  and  PW13  lost  his
daughter as well as his wife and in such a time of grief, they would not  be
in a normal state of mind to recollect  who  were  all  the  miscreants  and
their names. The witnesses may be knowing the persons  by  face,  not  their
names.  Therefore, the mere  fact  that  they  had  not  named  the  accused
persons in Section 161 statement, at that time, that would not be  a  reason
for discarding the oral evidence if their evidence is found to  be  reliable
and creditworthy.

19.   Learned counsel appearing for the  accused  has  raised  the  question
that incriminating questions were not  put  to  the  accused  while  he  was
examined under Section 313 CrPC. The  object  of  Section  313  CrPC  is  to
empower the Court to examine the accused after evidence of  the  prosecution
has been taken so that the accused is given an opportunity  to  explain  the
circumstances  which  may  tend  to  incriminate  him.     The   object   of
questioning an accused person by the Court is to give him an opportunity  of
explaining the circumstances that appear against him in  the  evidence.   In
the instant case, the accused was examined in the Court on 23.4.2005 by  the
Additional Sessions Judge, West Tripura, Agartala, which, inter alia,  reads
as follows :-
      Question : It transpires from the evidence of PW No.10, 11 and 13 that
                   they had recognized you amongst the  extremists.   Is  it
                   true?




      Answer :    False.




      Question :  It transpires from the evidence  of  the  above  witnesses
                   that Dulal, Ajit, Saraswati and Hemender sustained severe
                   bullet injuries by the firing of you and your associates?



            What do you get to say regarding this?




      Answer :    Yes




      Question :  It is evident from the evidence  of  these  witnesses  and
                   other information that at that  night  Sachindra  Sarkar,
                   Archana  Garkar,  Dipak  Sarkar,  Gautam  Sarkar,  Shashi
                   Sarkar, Prosenjit Sarkar, Saraswati Biswas, Tulsi Biswas,
                   Narayan Das, Mithu Das, Bitu Das,  Khelan  Sarkar,  Sujit
                   Sarkar, Bipul Sarkar and Chotan Sarkar were killed by the
                   bullets of fire arms and fire.

            What do you get to say regarding this?




      Answer :    ………………. (Blank).




20.   The second question put to the accused was that, from  the  deposition
of PW10, PW11, PW13, it had come out in evidence that  it  was  due  to  the
firing of the  accused  and  his  associates,  Dulal,  Ajit,  Saraswati  and
Hemender had sustained severe bullet injuries, to which the answer given  by
the accused was “Yes”.  In other words, he has admitted the  fact  that,  in
the incident, Dulal, Ajit,  Saraswati  and  Hemender  had  sustained  severe
bullet injuries by the firing of the accused and his  associates.   Further,
for the question, that from  the  evidence  of  those  witnesses  and  other
information, at that night, Sachindra Sarkar, Archana Garkar, Dipak  Sarkar,
Gautam Sarkar, etc. were killed by the bullets of fire arms  and  fire,  the
accused kept silent.

21.  We are of the view that, under Section 313 statement,  if  the  accused
admits that, from the evidence of various witnesses, four persons  sustained
severe bullet injuries by the firing by  the  accused  and  his  associates,
that admission of guilt in Section 313 statement cannot  be  brushed  aside.
This Court in State of Maharashtra v. Sukhdev Singh  and  another  (1992)  3
SCC 700 held that  since  no  oath  is  administered  to  the  accused,  the
statement made by the accused under Section 313 CrPC will  not  be  evidence
stricto sensu and the accused, of course, shall not  render  himself  liable
to punishment merely on the basis  of  answers  given  while  he  was  being
examined under Section 313  CrPC.    But,  Sub-section  (4)  says  that  the
answers given by the accused in response to his  examination  under  Section
313 CrPC can be taken into  consideration  in  such  an  inquiry  or  trial.
This Court in Hate Singh Bhagat Singh (supra) held that  the  answers  given
by the accused under Section 313 examination can be  used  for  proving  his
guilt as much as the evidence given by the prosecution  witness.  In  Narain
Singh v. State of Punjab (1963) 3 SCR 678, this Court  held  that  when  the
accused confesses to  the  commission  of  the  offence  with  which  he  is
charged, the Court may rely upon the confession and proceed to convict  him.


22.   This Court in Mohan Singh v. Prem Singh and another (2002) 10 SCC  236
held that the statement made in defence by accused under  Section  313  CrPC
can certainly be taken aid of to lend credence to the evidence  led  by  the
prosecution, but only a part  of  such  statement  under  Section  313  CrPC
cannot be made the sole basis  of  his  conviction.    In  this  connection,
reference may also be made to the judgment of this Court in  Devender  Kumar
Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and Bishnu Prasad Sinha  and
another  v.  State  of  Assam   (2007)  11  SCC  467.   The  above-mentioned
decisions would indicate that the statement of  the  accused  under  Section
313 CrPC for the admission of his guilt or  confession  as  such  cannot  be
made the sole basis for finding the accused guilty, the reason being  he  is
not making the statement on  oath,  but  all  the  same  the  confession  or
admission of guilt can be taken as a piece of evidence since the same  lends
credence to the evidence led by the prosecution.


23.   We may, however, indicate that the answers given by the accused  while
examining him under Section 313, fully corroborate the evidence of PW10  and
PW13 and hence the offences levelled against the Appellant stand proved  and
the trial Court and the High Court have rightly found  him  guilty  for  the
offences under Sections 326, 436 and 302 read with Section 34 IPC.


24.   We shall now consider whether this is one of the rarest of rare  case,
as held by the trial Court and affirmed by the High Court, so  as  to  award
death sentence to the accused.

25.  In this  case,  altogether  11  persons  were  charge-sheeted  for  the
offences under Sections 326, 436 and 302 read with Section 34 IPC  and  also
Section 27(3) of the Arms Act, 1959 read with Section 34  IPC,  but  charges
were framed only against 5 persons under Sections  326,  436  and  302  read
with Section 34 IPC and also Section 27(3) of the Arms Act, 1959  read  with
Section 34 IPC.   For want of evidence, three accused  persons  Budhrai  Deb
Barma, Mantu Deb Barma and Subhuram Deb Barma were  acquitted  on  23.4.2005
under Section 232 CrPC and only two accused persons,  Appellant  and  Gandhi
Deb Barma were called upon in terms of Section 232 CrPC to  enter  on  their
defence.  Out of 11 accused, we are left with only two accused  persons  who
were found guilty, out of whom Gandhi Deb Barma is  now  absconding,  hence,
we are concerned only with the Appellant.  We  will  first  examine  whether
the appellant was solely responsible for all the elements of crime.

ELEMENTS OF CRIME

26.  Appellant alone could  not  have  organized  and  executed  the  entire
crime.  Eleven persons were originally charge-sheeted out of 30-35 group  of
persons who, according to the prosecution, armed  with  weapons  like  AK47,
Dao, Lathi, etc., had attacked the villagers, fired at them and  set  ablaze
their huts and  belongings.   The  High  Court  while  affirming  the  death
sentence, stated as follows:
     “The perpetrators of the crime, including the present appellant,  acted
     in most  cruel  and  inhuman  manner  and  murders  were  committed  in
     extremely brutal, grotesque and dastardly manner,  which  is  revolting
     and ought  to  be  taken  to  have  vigorously  shaken  the  collective
     conscience of the society.  The victims, all  innocent,  were  helpless
     when they were put to death or grievously injured or when their  houses
     and belongings were burnt to  ashes.   The  case  at  hand,  therefore,
     squarely falls in the category of ‘rarest of rare cases’,  where  death
     penalty could be the only adequate sentence.”


     The  High  Court,  therefore,  while  confirming  the  death   sentence
recognized the accused as one of the “perpetrators of the  crime”,  not  the
sole, and then stated that they all acted in most cruel and  inhuman  manner
and committed the offences.   Offences were  committed  by  other  so-called
perpetrators of the crime as well, but they  could  not  be  apprehended  or
charge-sheeted. Appellant alone or  the  accused  absconding,  though  found
guilty, are not solely responsible for all the elements of  the  crime,  but
other perpetrators of the crime also, who could  not  be  apprehended.   The
Courts below put the entire elements of crime on  the  accused  and  treated
those elements as aggravating circumstances so as to award  death  sentence,
which cannot be sustained.

REASONABLE DOUBT AND RESIDUAL DOUBT
27.   An accused has a profound right not to  be  convicted  of  an  offence
which is not  established  by  the  evidential  standard  of  proof  “beyond
reasonable doubt”.  This Court in Krishnan and another v. State  represented
by Inspector of Police (2003) 7 SCC  56,  held  that  the  doubts  would  be
called reasonable if they are free from a  zest  for  abstract  speculation.
Law  cannot  afford  any  favourite  other  than  truth  and  to  constitute
reasonable doubt, it must be free from an overemotional  response.    Doubts
must be actual and substantial  doubts  as  to  the  guilt  of  the  accused
persons arising from the evidence, or from the lack of  it,  as  opposed  to
mere vague apprehensions.   A reasonable doubt is not an imaginary,  trivial
or a merely possible doubt, but a fair doubt based upon  reason  and  common
sense. It must grow out of the evidence in the case.   In  Ramakant  Rai  v.
Madan Rai and  others  (2002)12  SCC  395,  the  above  principle  has  been
reiterated.

28.    In  Commonwealth  v.  John  W.  Webster  5  Cush.  295,  320  (1850),
Massachusetts Court, as early as  in  1850,  has  explained  the  expression
“reasonable doubt” as follows:
    “Reasonable doubt ... is not a mere possible doubt; because  everything
    relating to human affairs, and depending on moral evidence, is open  to
    some possible or imaginary doubt.   It is that state of the case which,
    after the entire comparison and  consideration  of  all  the  evidence,
    leaves the minds of the jurors in that condition that they  cannot  say
    they feel an abiding conviction.”


    In our criminal justice system, for recording guilt of the accused,  it
is not necessary that the prosecution should prove the  case  with  absolute
or mathematical certainty,  but  only  beyond  reasonable  doubt.   Criminal
Courts, while examining whether any doubt is beyond  reasonable  doubt,  may
carry in their mind, some “residual  doubt”,  even  though  the  Courts  are
convinced of the  accused  persons’  guilt  beyond  reasonable  doubt.   For
instance, in the instant case, it was pointed out  that,  according  to  the
prosecution, 30-35 persons armed with weapons such as fire arms, dao,  lathi
etc., set fire to  the  houses  of  the  villagers  and  opened  fire  which
resulted in the death of 15  persons,  but  only  11  persons  were  charge-
sheeted and, out of which,  charges  were  framed  only  against  5  accused
persons.  Even out of  those  5  persons,  3  were  acquitted,  leaving  the
appellant and another, who is absconding.   Court,  in  such  circumstances,
could have entertained a “residual doubt” as to whether the appellant  alone
had committed the entire crime, which is a  mitigating  circumstance  to  be
taken note of by the court, at least  when  the  court  is  considering  the
question whether the case falls under the rarest of rare category.

29.   ‘Residual doubt’ is a mitigating  circumstance,  sometimes,  used  and
urged before the Jury in the United States and, generally, not found  favour
by the various Courts in the United  States.  In  Donald  Gene  Franklin  v.
James A. Lynaugh, Director, Texas  Department  of  Corrections  487  US  164
(1988) : 101 L Ed 2d 155, while dealing with the  death  sentence,  held  as
follows:

    “Petitioner also contends that the sentencing  procedures  followed  in
    his  case  prevented  the  jury  from  considering,  in  mitigation  of
    sentence, any "residual doubts" it might  have  had  about  his  guilt.
    Petitioner uses the phrase "residual doubts" to refer  to  doubts  that
    may have lingered in the minds of jurors  who  were  convinced  of  his
    guilt beyond a reasonable doubt, but who were not absolutely certain of
    his guilt. Brief for Petitioner 14. The plurality  and  dissent  reject
    petitioner's "residual doubt" claim  because  they  conclude  that  the
    special  verdict  questions  did  not  prevent  the  jury  from  giving
    mitigating  effect  to  its  "residual  doubt[s]"  about   petitioner's
    guilt. See  ante at 487  U.  S.  175; post at 487  U.  S.   189.   This
    conclusion  is  open  to  question,  however.  Although  the  jury  was
    permitted to consider evidence presented at  the  guilt  phase  in  the
    course of  answering  the  special  verdict  questions,  the  jury  was
    specifically  instructed  to  decide  whether  the  evidence  supported
    affirmative   answers   to   the   special    questions    "beyond    a
    reasonable doubt."  App.  15  (emphasis   added).   Because   of   this
    instruction, the jury  might  not  have  thought  that,  in  sentencing
    petitioner, it was free to demand proof of his guilt beyond all doubt.

30.   In California v. Brown 479 U.S. 541 and other  cases,  the  US  Courts
took the view, “"Residual doubt" is not a fact about the  defendant  or  the
circumstances of the crime, but  a  lingering  uncertainty  about  facts,  a
state of mind that exists somewhere between "beyond a reasonable doubt"  and
"absolute certainty."  Petitioner's  "residual  doubt"  claim  is  that  the
States must permit capital sentencing bodies to demand  proof  of  guilt  to
"an absolute certainty" before imposing the death sentence. Nothing  in  our
cases mandates the imposition of this heightened burden of proof at  capital
sentencing.”

31.    We  also,  in  this  country,  as  already  indicated,  expect   the
prosecution to prove  its  case  beyond  reasonable  doubt,  but  not  with
“absolute certainty”.  But, in between  “reasonable  doubt”  and  “absolute
certainty”, a decision maker’s mind may wander possibly, in a  given  case,
he may go for “absolute certainty” so as to award death sentence, short  of
that he may go for “beyond reasonable doubt”.  Suffice it to say, so far as
the present case is concerned, we  entertained  a  lingering  doubt  as  to
whether the appellant alone could have executed the crime single  handedly,
especially when the prosecution itself says that it was the handiwork of  a
large group of people.  If that be so, in our view, the  crime  perpetrated
by a group of people  in  an  extremely  brutal,  grotesque  and  dastardly
manner, could not have been thrown upon the appellant alone without charge-
sheeting other group of persons numbering around 35.   All element test  as
well as the residual doubt test, in a given case, may favour  the  accused,
as a mitigating factor.

COUNSEL’S INEFFECTIVENESS:
32.   Can the counsel’s ineffectiveness in conducting a criminal trial  for
the defence, if established, be a  mitigating  circumstance  favouring  the
accused, especially to escape from the award of  death  sentence.   Counsel
for the appellant, without causing any aspersion  to  the  defence  counsel
appeared for the accused, but to only save the accused  from  the  gallows,
pointed out that the records would indicate that the accused was not  meted
out with effective legal assistance.    Learned counsel submitted that  the
defence counsel failed to  cross  examine  PW1  and  few  other  witnesses.
Further, it was pointed out that the counsel also  should  not  have  cross
examined PW17, since he was not put to chief-examination.  Learned  counsel
submitted that appellant, a tribal, coming from  very  poor  circumstances,
could not have engaged a competent defence lawyer to conduct a case on  his
behalf.   Placing reliance on the judgment  of  the  US  Supreme  Court  in
Charles E. Strickland, Superintendent, Florida State Prison v. David  Leroy
Washington 466 US 668 (1984),  learned  counsel  pointed  out  that,  under
Article 21 of our Constitution, it is a legal right of the accused to  have
a fair trial, which the accused was deprived of.

33.   Right to get proper and competent assistance is  the  facet  of  fair
trial.  This Court in Madhav Hayawadanrao S. Hoskot v. State of Maharashtra
(1978) 3 SCC 544, State of Haryana v. Darshana Devi and Others (1979) 2 SCC
236, Hussainara Khatoon and others (IV) v. Home Secretary, State of  Bihar,
Patna (1980) 1 SCC 98 and Ranjan Dwivedi v. Union of India   (1983)  3  SCC
307, pointed out that if the accused is unable to engage a  counsel,  owing
to poverty or similar circumstances, trial would  be  vitiated  unless  the
State offers free legal aid for his defence to engage a counsel,  to  whose
engagement, the accused does not object.  It is a constitutional  guarantee
conferred on the accused persons under Article 22(1) of  the  Constitution.
Section 304 CrPC provides for legal assistance  to  the  accused  on  State
expenditure.   Apart from the statutory  provisions  contained  in  Article
22(1) and Section 304 CrPC, in Hussainara Khatoon case (supra), this  Court
has held  that this is a constitutional right of every accused  person  who
is unable to engage a lawyer  and  secure  legal  services  on  account  of
reasons, such as poverty, indigence or incommunicado situation.

34.   The question raised, in this case,  is  with  regard  to  ineffective
legal assistance which, according to the counsel, caused prejudice  to  the
accused and, hence, the same may be treated as  a  mitigating  circumstance
while awarding sentence. Few circumstances pointed out to show  ineffective
legal assistance are as follows:
(1)   Failure to cross-examine PW1,  the  injured  first  informant  which,
      according to the counsel, is a  strong  circumstance  of  “ineffective
      legal assistance”.
(2)   The omission to point out the decision of this Court in Dalbir  Singh
      (supra), wherein this Court held that Section 27(3) of  the  Arms  Act
      was unconstitutional, was a serious  omission  of  “ineffective  legal
      advice”, at the trial stage, even though the High Court has found  the
      appellant not guilty under Section 27 of the Arms Act, 1959.
(3)   Ventured to cross examine PW17, who was not put to chief-examination.

35.   Right to  get  proper  legal  assistance  plays  a  crucial  role  in
adversarial system, since  access  to  counsel’s  skill  and  knowledge  is
necessary to accord the accused an ample opportunity to meet  the  case  of
the prosecution. In Charles E. Strickland case (supra), the US  Court  held
that a convicted defendant alleging ineffective assistance of counsel  must
show not only that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment so as to provide reasonable effective  assistance,  but
also that counsel’s errors were so serious as to deprive the defendant of a
fair trial.  Court held that the defiant  convict  should  also  show  that
because of a  reasonable  probability,  but  for  counsel’s  unprofessional
errors, the results would have been different.   The  Court  also  held  as
follows:
      “Judicial  scrutiny  of   counsel’s   performance   must   be   highly
      deferential, and a fair assessment of  attorney  performance  requires
      that every effort be made  to  eliminate  the  distorting  effects  of
      hindsight, to reconstruct the circumstances  of  counsel’s  challenged
      conduct, and to evaluate the conduct from counsel’s perspective at the
      time.  A court  must  indulge  a  strong  presumption  that  counsel’s
      conduct  falls  within  the  wide  range  of  reasonable  professional
      assistance.  These standards require no special amplification in order
      to define counsel’s duty to investigate, the duty  at  issue  in  this
      case.”

36.   The Court, in determining whether prejudice resulted from a  criminal
defence counsel’s  ineffectiveness,  must  consider  the  totality  of  the
evidence.   When an accused challenges a death sentence on  the  ground  of
prejudicially ineffective representation of the counsel,  the  question  is
whether there is a reasonable probability  that,  absent  the  errors,  the
Court independently reweighs the evidence, would have  concluded  that  the
balance of aggravating and mitigating circumstances  did  not  warrant  the
death sentence.

37.   When we apply the above test to the facts of this case,  we  are  not
prepared to say that the accused was not given proper legal  assistance  by
the counsel appeared before the trial Court as  well  as  before  the  High
Court.   As already discussed in detail, there  is  clinching  evidence  in
this case of the involvement of the appellant.  The  evidence  tendered  by
the eye-witnesses is trustworthy and reliable.  True, PW17 should not  have
been subjected to cross-examination without being put to chief-examination.
Section 138 of the Evidence Act specifically states that witness  shall  be
first examined-in-chief, then (if the  adverse  party  so  desires)  cross-
examined,  then  (if  the  party  calling  him  so  desires)   re-examined.
Consequently, there is no scope under Section 138 of the  Evidence  Act  to
start with cross-examination of a witness, who has  not  been  examined-in-
chief, an error committed by the trial Court.   In Sukhwant Singh v.  State
of Punjab (1995) 3 SCC 367, this Court held that after amendment  of  CrPC,
tendering of witness for cross examination is not permissible.   Under  the
old Code, such tendering of witnesses was permissible, while the committing
Magistrate used to record  the  statement  of  witnesses,  which  could  be
treated at the discretion of the trial Judge as substantial evidence of the
trial. In that case, this Court further held as follows:
      “Section 138 Evidence Act, envisages that a  witness  would  first  be
      examined-in-chief and then subjected  to  cross  examination  and  for
      seeking any clarification, the  witness  may  be  re-examined  by  the
      prosecution.  There is no meaning in tendering  a  witness  for  cross
      examination only.  Tendering of a witness for cross examination, as  a
      matter of fact, amounts to giving up of the witness by the prosecution
      as it does not choose to examine him in chief.”


Later, in Tej Prakash v. State of Haryana (1996)  7  SCC  322,  this  Court,
following its earlier judgment in Sukhwant Singh (supra), held as follows:
      “18.  As far as Dr O.P. Poddar is concerned, he was only tendered  for
      cross-examination without his being examined-in-chief. Though, Dr O.P.
      Poddar was  not  examined-in-chief,  this  procedure  of  tendering  a
      witness for cross-examination is not warranted by law. This  Court  in
      Sukhwant Singh  v.  State  of  Punjab  (1995)  3  SCC  367  held  that
      permitting the prosecution to tender a witness  for  cross-examination
      only would be wrong and “the effect of their being tendered  only  for
      cross-examination amounts to the failure of the prosecution to examine
      them at the trial”. In the present case, however,  non-examination  of
      Dr O.P. Poddar is not very material  because  the  post-mortem  report
      coupled with the testimonies of Dr K.C. Jain PW 1 and Dr J.L.  Bhutani
      PW 9 were sufficient to enable the courts to come  to  the  conclusion
      about the cause of death.”



38.   Participation and involvement of the appellant, in the instant crime,
have been proved beyond reasonable doubt.   At the time  of  commission  of
the offence, he was 30 years of age, now 45.  Facts would clearly  indicate
that he is one of the members of group of  extremist  persons,  waging  war
against the linguistic group of people in the  State  of  Tripura.  Persons
like the appellant armed with sophisticated weapons like  AK  47,  attacked
unarmed  and  defenceless  persons,  which  included  women  and  children.
Prosecution has stated that the minority community in the State of  Tripura
is often faced with some extremists’ attacks and no leniency  be  shown  to
such persons, at the peril of innocent people  residing  in  the  State  of
Tripura.

39.   We have laid down three tests – crime  test,  criminal  test  and  RR
test, not the “balancing test”, while deciding the proportionality  of  the
sentence.  To award death sentence, crime test has to  be  fully  satisfied
and there should be no mitigating circumstance favouring the accused,  over
and above the RR test.    The hallmark of a sentencing policy, it is  often
said, that sufficiently guides and attracts the Court is  the  presence  of
procedures that require the Court to  consider  the  circumstances  of  the
crime and the criminal before it recommends sentence.


40.   Arbitrariness, discrimination and  inconsistency  often  loom  large,
when we analyze some of  judicial  pronouncements  awarding  sentence.   Of
course, it is extremely difficult to  lay  down  clear  cut  guidelines  or
standards to determine the appropriate sentence to be  awarded.   Even  the
ardent critics only criticize, but have no concrete solution  as  such  for
laying down a clear cut policy in sentencing.   Only safeguard, statutorily
and judicially provided is to give special reasons,  not  merely  “reasons”
before awarding the capital  punishment    In  Santosh  Kumar  Satisbhushan
Bariyar v. State of Maharashtra (2009) 6 SCC 498,  this  Court  highlighted
the fact that the arbitrariness in sentencing under Section 302 may violate
the idea of equal protection clause under Article 14 and the right to  life
under Article 21 of the Constitution.   Many times, it  may  be  remembered
that the ultimate sentence turns on the facts  and  circumstances  of  each
case. The requirement to follow the three tests, including the necessity to
state “special reasons” to some extent allay the fears expressed in Santosh
Kumar Satisbhushan Bariyar case (supra).


41.   We have  already  explained  few  circumstances  which  favoured  the
accused in the instant case, to hold it as not a rarest of rare case, which
are that the appellant alone could not have executed such  a  crime,  which
resulted in the death of 15 persons and leaving so many injured and setting
ablaze 23 houses, that is the entire elements of the crime could  not  have
been committed by the appellant alone.  Further, the appellant is a tribal,
stated to be a member  of  the  extremist  group  raging  war  against  the
minority settlers,  apprehending  perhaps  they  might  snatch  away  their
livelihood and encroach upon their properties,  possibly  such  frustration
and neglect might have led them to  take  arms,  thinking  they  are  being
marginalized and ignored by the society.     Viewed in that perspective, we
are of the view that this is not a rarest of rare case for  awarding  death
sentence.  All the same, considering the  gravity  of  the  crime  and  the
factors like extreme social indignation, crimes against innocent villagers,
who are a linguistic minority, which included women and children,  we  feel
it would be in the interest of justice to apply the principles laid down in
Swamy Shradananada (2) v. State of Karnataka (2008) 13 SCC 767.

42.    Consequently,  while  altering  the  death  sentence  to   that   of
imprisonment for life, we are inclined to fix the term of  imprisonment  as
20 years without remission, over and above the period of  sentence  already
undergone, which, in our view, would meet the  ends  of  justice.   Ordered
accordingly.

43.   The Appeals are, accordingly, disposed of.


                                       eard Hear…………………………J.
                                       (K. S. Radhakrishnan)






                                       .….……………………J.
                                       (Vikramajit Sen)
New Delhi,
March 4, 2014.

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