SENSATIONAL TRIPLE MURDER CASE OF DARASING - NO TEST IDENTIFICATION PARED- IDENTIFICATION IN COURT - CORROBORATED - CONVICTION

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1366 OF 2005

Rabindra Kumar Pal @ Dara Singh .... Appellant(s)

Versus

Republic of India .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 1259 OF 2007

AND

CRIMINAL APPEAL NOS. 1357-1365 OF 2005

JUDGMENT

P. Sathasivam, J.

1) These appeals relate to a sensational case of triple

murder of an Australian Christian Missionary - Graham

Stuart Staines and his two minor sons, namely, Philip Staines,

aged about 10 years and Timothy Staines aged about 6 years.

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2) Criminal Appeal No. 1366 of 2005 is filed by Rabindra

Kumar Pal @ Dara Singh against the final judgment and order

dated 19.05.2005 passed by the High Court of Orissa at

Cuttack in Criminal Appeal No. 239 of 2003 whereby the High

Court dismissed the appeal of the appellant upholding the

conviction and commuting the death sentence passed by the

trial Court into that of life imprisonment. Against the same

judgment, Criminal Appeal No. 1259 of 2007 is filed by

Mahendra Hembram challenging his life imprisonment

awarded by the trial Court and confirmed by the High Court.

Against the acquittal of rest of the accused by the High Court,

the Central Bureau of Investigation (in short "the 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

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lepers of the State of Orissa. His two minor sons, namely,

Philip Staines and Timothy Staines were burnt to death along

with their father in the midnight of 22.01.1999/23.01.1999.

The deceased-Graham Staines was engaged in propagating

and preaching Christianity in the tribal area of interior Orissa.

Manoharpur is a remote tribal village under the Anandapur

Police Station of the District Keonjhar of Orissa. Every year,

soon after the Makar Sankranti, the said missionary used to

come to the village to conduct the Jungle Camp. Accordingly,

on 20.01.1999, the deceased-Staines, along with his two

minor sons Philip and Timothy and several other persons

came to the village Manoharpur. They conducted the camp for

next two days by hosting a series of programmes.

(b) On 22.01.1999, the Missionary Team, as usual conducted

different programmes in the village near the Church and

retired for the day. Graham Staines and his two minor sons

slept in their vehicle parked outside the Church. In the mid-

night, a mob of 60-70 people came to the spot and set fire to

the vehicle in which the deceased persons were sleeping. The

mob prevented the deceased to get themselves out of the

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vehicle as a result of which all the three persons got burnt in

the vehicle. The local police was informed about the incident

on the next day.

(c) Since the local police was not able to proceed with the

investigation satisfactorily, on 23.04.1999, the same was

handed over to the State Crime Branch. Even the Crime

Branch failed to conduct the investigation, ultimately, the

investigation was transferred to CBI.

(d) On 03.05.1999, the investigation was taken over by the

CBI. After thorough investigation, charge sheet was filed by

the CBI on 22.06.1999. On the basis of charge sheet, as many

as 14 accused persons were put to trial. Apart from these

accused, one minor was tried by Juvenile Court.

(e) The prosecution examined as many as 55 witnesses

whereas in defence 25 witnesses were examined. Series of

documents were exhibited by the prosecution. By a common

judgment and order dated 15.09.2003 and 22.09.2003,

Sessions Judge, Khurda convicted all the accused and

sentenced them for offences punishable under various

sections. The death sentence was passed against Dara Singh-

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appellant in Criminal Appeal No. 1366 of 2005 and others

were awarded sentence of life imprisonment.

(f) The death reference and the appeals filed by the

convicted persons were heard together by the High Court and

were disposed of by common judgment dated 19.05.2005

concluding that the witnesses are not trustworthy and no

credence should be given to their statements and confessional

statements were procured by the investigating agency under

threat and coercion. The High Court, by the impugned

judgment, modified the death sentence awarded to Dara Singh

into life imprisonment and confirmed the life imprisonment

imposed on Mahendra Hembram and acquitted all the other

accused persons. Questioning the conviction and sentence of

life imprisonment, Dara Singh and Mahendra Hembram filed

Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007

respectively and against the acquittal of rest of the accused,

CBI filed Criminal Appeal Nos. 1357-65 of 2005 before this

Court.

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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 `Cr.P.C.') cannot be considered to be

voluntary on account of the fact that all the co-accused

persons were produced before the Magistrate from the police

custody and were remanded back to police custody. Similarly,

Dayanidhi Patra @ Daya (A14) was produced from the police

custody for confession while Umakant Bhoi (A13) made his

statement while on bail. Besides all confessions being

exculpatory and made after conspiracy ceased to be operative

and inadmissible.

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(ii) Inasmuch as recording of confessions of various accused

persons was done after the investigation was taken over by

Jogendra Nayak (PW 55), I.O. of the CBI which shows the

extent to which strong arm tactics were used by the

investigating agency.

(iii) The statements of eye-witnesses are contradictory to each

other on all material points.

(iv) There are several circumstances which are inconsistent

with the fire started by arson from outside and several

circumstances consistent with the fire emanating from inside

of the vehicle and then spread to rest of the vehicle after fuel

tank caught fire.

(v) This Court in cases of appeals against acquittal has held

that when two views are possible, one in favour of the accused

should be accepted.

6) Mr. Dash, learned senior counsel appearing for the accused

Mahendra Hembram (A3) reiterating the above submissions of

Mr. Tulsi also pinpointed deficiency in the prosecution case

insofar as (A3) is concerned.

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7) Mr. Vivek Tankha, learned Addl. Solicitor General, after

taking us through oral and documentary evidence, extensively

refuted all the contentions of the learned senior counsel for

the accused and raised the following submissions:-

(i) The High Court committed an error in altering the death

sentence into life imprisonment in favour of (A1) and

acquitting all other accused except (A3). He pointed out that

the appreciation of the evidence by the High Court is wholly

perverse and it erroneously disregarded the testimony of

twelve eye-witnesses.

(ii) The High Court failed to appreciate the fact that the three

accused, namely, Mahendra Hembram (A3), Ojen @ Suresh

Hansda (A7) and Renta Hembram (A10) belonging to the same

village were known to the eye-witnesses and, therefore, there

is no requirement to conduct Test Identification Parade (in

short `TIP').

(iii) The High Court erred in acquitting 11 accused persons

on the sole ground that TIP was not conducted and, therefore,

identification by the eye-witnesses was doubtful.

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(iv) The evidence of identification in Court is substantive

evidence and that of the identification in TIP is of corroborative

value.

(v) The High Court committed a serious error in law in

disregarding the confessional statements made under Section

164 of the Cr.P.C. as well as the extra-judicial confessions

made by Dara Singh (A1) and Mahendra Hembram (A3).

(vi) The High Court wrongly held inculpatory confessional

statements as exculpatory and on that ground rejected the

same. The High Court failed to appreciate that in their

confessional statements (A9), (A11), (A12), (A13) and (A14)

have clearly admitted their plan for committing the crime.

(vii) The adverse observations against (PW 55) the Investigating

Officer of 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.

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(ix) The reasons given by the High Court in acquitting 11

persons are unacceptable and the judgment to that extent is

liable to be set aside.

8) We have considered the rival submissions and perused all

the oral and documentary evidence led by the prosecution and

defence.

9) With the various materials in the form of oral and

documentary evidence, reasoning of the trial Judge and the

ultimate decision of the High Court, we have to find out

whether the conviction and sentence of life imprisonment

imposed on Dara Singh (A1) and Mahendra Hembram (A3) is

sustainable and whether prosecution has proved its case even

against the accused who were acquitted by the High Court.

Eye witnesses

10) According to the learned senior counsel for the accused,

the statements of eye-witnesses are contradictory to each

other on all material points. It is his further claim that

exaggerated and improved version of the incident makes it

difficult to place implicit reliance on the statements of any of

those witnesses. On the other hand, it is the claim of the

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prosecution that the statements of eye-witnesses are reliable

and acceptable and it was rightly considered by the trial Court

and erroneously rejected except insofar as against Dara Singh

(A1) and Mahendra Hembram (A3) by the High Court.

i) PW2, Basi Tudu, one of the prime eye-witness, identified in

dock the previously known accused of her village Ojen

Hansda. She was not examined by local police, however,

examined by the CID on 04.02.1999 and by the CBI on

05.06.1999. In her evidence, she stated that she is a

Christian by faith. Before the court, she deposed that her

house is located near the place of occurrence. She also stated

that Graham Staines along with his two sons came at

Manoharpur church after Makar Sankranti and stayed there

in the night. He along with his two sons slept inside the

vehicle. Inside the court, during her deposition, she first

wrongly identified accused Rajat Kumar Das as accused Ojen

Hansda. However, when she had a better view of the accused

in the court, she correctly identified Ojen Hansda as the

person whom she saw among 60 persons holding torch lights

and lathis going towards the church. She stated that in the

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midnight, on hearing barking of dogs, she woke up from sleep

and came out of the house. She found about 60 persons going

towards the church where the vehicles of Graham Staines

were parked. Those persons did not allow her to proceed

further. Therefore, she went to the thrashing floor from where

she found that people had surrounded the vehicle of Graham

Staines. Thereafter, she found the vehicle 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

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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 was

converted to Christianity in the year 1997. He identified

accused Dara Singh in dock. He was examined by the local

police on 23.01.1999, by CID on 10.02.1999 and by the CBI

on 20.04.1999. He used to accompany Graham Staines at

different places. He last accompanied Graham Staines on his

visit to Manoharpur on 20.02.1999. He stated that Graham

Staines with his two sons was in a separate vehicle and the

witness along with other three persons was in another vehicle.

In the night of 22.01.1999, Graham Staines along with his two

sons slept in his vehicle, which was parked in front of the

church. The witness slept in a hut, which was raised behind

the church. In the midnight, Nimai Hansda (driver of vehicle)

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woke him up. He heard the sound of beating of the vehicles

parked in front of the church. He along with Nimai Hansda

went near the chruch and found 60-70 persons putting straw

beneath the vehicle of Graham Staines and setting it on fire.

Three persons broke the glass panes of the vehicle in which

Graham Staines and his two sons were sleeping and gave

strokes to them with sticks. They were focusing the torch into

the vehicles. One of them was having a beard. The witness

pointed out to the accused Dara Singh (A1) on the dock saying

that the bearded man resembled like him. The witness was

unable to identify the other two persons who were in the dock.

However, he also asserted the hearing of slogans saying "Dara

Singh Zindabad" which corroborates his identification.

iii) The next eye-witness examined by the prosecution is PW4,

Rolia Soren. It was he who lodged FIR. He was examined by

the local police on 23.01.1999, by the CID on 03.02.1999 and

by the CBI on 09.04.1999. He is a resident of Manohapur

Village (the place of occurrence) and Graham Staines was well

known to him. He stated that Graham Staines along with his

two sons and other persons visited Manoharpur on

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20.01.1999. In the night of 22.01.1999, Graham Staines and

his two sons slept in the vehicle bearing No. 1208 which was

parked in front of the church. Another vehicle No. 952 was

also parked in front of the church. The house of witness was

situated in the south of church, four houses apart and the

vehicles parked in front of church were visible from the road in

front of his house. In the night of 22.01.1999, his wife woke

him up and said that she found large number of people with

lathis and torches going 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

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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 Zindabad" and "Dara Singh

Zindabad".

iv) Singo Marandi (PW5) was examined as next eye-witness.

Though he named accused Ojen Hansda, in his deposition

stated that he belonged to his village and in the dock he could

not identify him with certainty. His statement was not

recorded by the local police but recorded by the CID on

03.02.1999 and by the CBI on 07.06.1999. This witness is a

resident of Manoharpur (the place of occurrence). He stated

that on Saraswati Puja day of 1999, after witnessing the Nagin

dance along with his mother, he slept in Verandah of Galu and

her mother was sitting by his side. At about midnight, his

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mother woke him up. He saw something was burning near the

church and found a vehicle moving towards the road. Ojen

and Chenchu of his village carrying torch and lathis came to

them and warned them not to go near the fire as some people

were killing the Christians there. Thereafter, he heard sounds

of blowing of whistles thrice and raising slogans saying "Dara

Singh Zindabad". It is seen from his evidence that at that

time he was prosecuting his studies at Cuttack and his

mother was working as a labourer in Bhadrak. It is also not

clear as to what was the need for him to sleep in Verandah of

another person with his mother sitting beside him till

midnight during peak of the winter.

v) The next eye-witness examined by the prosecution is Nimai

Hansda (PW10). He was examined by the local police on

23.01.1999, by the CID on 11.02.1999 and by the CBI on

20.04.1999. He did not identify any of the accused.He was the

driver of Graham Staines. Vehicle No. 1208 was driven by

him. He along with Graham Staines and others came to the

place of occurrence on 20.01.1999. Graham Staines and his

two sons used to sleep in the said vehicle. He stated that in

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the midnight of 22.01.1999, on hearing bursting sounds, he

woke up. He heard the sound of beating the vehicles parked

in front of church in which Graham Staines and his two sons

were sleeping. He ran towards the vehicles and found some

people beating the vehicles with lathis. They first broke the

glass pane of vehicle No. 952. Thereafter, a boy set the vehicle

on fire. Before setting the vehicle on fire, he put bundle of

straw at front right wheel of vehicle. When the witness raised

a noise of protest, those people assaulted him. He went to call

the people but nobody came. When he came back to the place

of occurrence, 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

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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 midnight, the witness was woken

up by his wife on hearing bursting sounds. He came out of his

house and found 4/5 persons standing in front of his house

holding torches and lathis. They were threatening that they

will kill the persons who will dare to come in their way. One of

them threw a baton like stick at him. He retreated to his house

and went to the house of another person situated one house

apart from the church. A slim and tall man was holding an

axe. They set on fire one of the vehicles. Some of them brought

straw and put the same on the vehicle. They set fire both the

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vehicles and both the vehicles were burnt. They raised the

slogans "Jai Bajarang Bali" and "Dara Singh Zindabad". The

witness pointed accused Dara Singh (A1) and accused Rajat

Kumar Das in the dock as two of those persons beating the

vehicles and setting fire on the vehicles. The witness identified

accused Dara Singh (A1) as slim and tall fellow holding the axe

and guiding the miscreants. The witness further stated that

the CBI while interrogating him showed photographs of some

persons and he had identified two of the photographs as that

of miscreants. He had signed on those photographs. About

the admissibility of the identification of the accused persons

with the photographs can be considered at a later point of

time. He did not report the incident to the Collector or any

other police officer camping at the site.

vii) The next eye-witness examined was Mathai Marandi

(PW15). He identified accused Uma Kant Bhoi (A 13) in the

TIP. He also identified accused Dara Singh (A1), Dipu Das

(A2), Ojen @ Suresh Hansda and Mahadev. Out of these

accused, Ojen Hansda was previously known to him,

belonging to the same street of his village. In his evidence, it

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is stated that he is native of Manoharpur village and the

church (Place of occurrence) is located adjacent to his house.

Deceased Graham Staines was well known to him as he used

to visit his village for the last 15-16 years. He stated that

Graham Staines last visited their village on 20.01.1999. He

along with his two sons and other persons came there in two

vehicles. He further stated that in the night of 22.01.1999, on

hearing bursting sound, his wife woke him up. After coming

out of the house, he found 40-50 persons gathered near the

vehicles parked in front of the church and beating the vehicles

by lathis. Those miscreants were holding lathis, axe, torches,

bows and arrows. He heard cries raised by the minor sons of

Graham Staines. He went near the vehicle, but 3 to 4 persons

threatened him with lathis and, therefore, he retreated to his

house. Thereafter, he went to the huts raised behind the

church and called the persons staying there and went to the

place of occurrence and found the vehicles set on fire. The

miscreants put the straw inside the vehicle and set it on fire.

They first set the empty vehicle on fire and thereafter the

vehicle in which Graham Staines and his sons were sleeping.

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Both the vehicles caught fire and were burnt. The witness

identified accused Dara Singh (A1), Dipu Das (A2), Ojen @

Suresh Hansda and Mahadev as the miscreants present at the

scene of occurrence and taking part in the offence. The

witness further stated that Ojen Hansda and Mahendra

Hembram belonged to his village. He had identified accused

Uma Kanta Bhoi in the TIP conducted at Anandpur Jail as one

of the persons setting fire on the vehicle. He further stated

that after the vehicles were burnt, the miscreants blew whistle

thrice and raised slogan "Jai Bajarang Bali" and "Dara Singh

Zindabad". However, it is relevant to note that his omission to

mention all important aspects in his evidence including names

of the appellants and his previous statements recorded by

three Investigating Officers creates a doubt about his veracity.

viii) Joseph Marandi (PW23) was examined as another eye-

witness to the occurrence. He belonged to village Manoharpur

(Place of occurrence) and his house is located near the church.

He identified accused Renta Hembram, Mahendra Hembram,

Dara Singh and Rajat Kumar Dass @ Dipu. Out of these, two

accused - Renta Hembram and Mahendra Hembram, were

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previously known to him as they belonged to his village. He

was examined by the local police on 02.02.1999, by the CID

on 06.02.1999 and by the CBI on 03.06.1999. He stated that

Graham Staines along with his two sons and other persons

came to Manoharpur on 20.01.1999 on two vehicles. On

22.01.1999 deceased Graham Staines and his two sons slept

in a vehicle parked in front of the church and other persons

slept in the huts raised behind the church. In the mid-night,

he heard the sound of beating of vehicles and woke up. When

he came out of the house, 3 to 4 persons holding lathis and

torches restrained and threatened him to assault if he

proceeds further. Thereafter, he stood in a lane between his

house and the church. He saw that about 20-22 persons had

surrounded the vehicle in which deceased Graham Staines

and his two sons were sleeping. Some people were setting the

vehicle on fire by putting straw beneath it and igniting it by

match sticks. After the vehicle caught fire and was burnt,

somebody blew whistle thrice and they shouted slogan "Jai

Bajarang Bali" and "Dara Singh Zindabad". The other vehicle

was not visible to the witness. The witness identified accused

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Renta Hembram and Mahendra Hembram of his village who

were among the miscreants. The witness also identified

accused Dara Singh (A1) and accused Rajat Kumar Das @Dipu

(A2) as the miscreants who among others had set fire to the

vehicles. The witness further stated that the CBI officers had

shown him 30-40 photographs out of which he identified the

photographs of the accused Renta Hembram, Mahendra

Hembram, Dara Singh (A1) and Rajat Kumar Das @ Dipu (A2).

He is also a witness to the seizure of some articles seized from

the place of occurrence and he has proved the seizure list.

Admittedly, he did not disclose the names of these persons

before either of the aforesaid three I.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

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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 before the trial Court for the first time. As stated

earlier, the legality or otherwise of dock identification, for the

first time, would be dealt with in the later part of the

judgment.

x) Another eye-witness PW39, Soleman Marandi identified

accused Dara Singh, Rajat Kumar Dass, Surtha Naik, Harish

Chandra, Ojen Hansda and Kartik Lohar. Out of these

accused, Ojen Hansda was known to him being resident of his

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village. His statement was not recorded by the local police but

recorded by the CID on 03.02.1999 and by the CBI on

30.05.1999. He is a resident of village Manoharpur (place of

occurrence). He stated that Graham Staines visited

Manhorpur last time about 3 years back i.e. in the year 1999

after Makar Sankranti. He came there with his two sons and

other persons in two vehicles. In the third night of his stay, he

along with his two sons slept in the vehicle during night. The

vehicles were parked in front of the church. In the midnight,

the witness heard the sound of beating of vehicles. He came

out of the house and went near the church. He found that

about 30-40 persons had surrounded the vehicles and some of

them were beating the vehicles in which Graham Staines along

with his two sons was sleeping. He heard the cries of two sons

of Graham Staines coming from the vehicle. These people set

fire to the second vehicle parked near the vehicle of Graham

Staines. When the vehicle caught fire, the vehicle moved

towards the road. Three of those miscreants put a log of wood

preventing the vehicle moving further. The witness identified

accused Dara Singh as (A1), Rajat Kumar Das, Suratha Naik,

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Harish Mahanta, Ojen Hansda and Kartik Lohar amongst the

accused persons in the dock as the miscreants who had set

fire to the vehicles. Accused Ojen Hansda belonged to his

village. The witness further stated that CBI showed him

number of photographs among which he identified

photographs of 5 persons who had taken part in the

occurrence. He identified Dara Singh (A1) without any

difficulty and it is also corroborated by the slogan he heard

which miscreants raised in the name of Dara Singh.

xi) The last eye-witness examined on the side of the

prosecution is PW43, Lablal Tudu. He identified accused Dara

Singh, Turam Ho, Daya Patra and Rajat Kumar Das. His

statement was not recorded by local police and by the CID but

recorded by the CBI on 03.06.1999. He is also a resident of

Manoharpur 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

27

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 incident. However, he did not make any statement to

the State Police and only for the first time his statement was

recorded by the CBI i.e., five months after the occurrence.

11) It is relevant to note that the incident took place in the

midnight of 22.01.1999/23.01.1999. Prior to that, number of

investigating officers had visited the village of occurrence.

28

Statements of most of the witnesses were recorded by PW 55,

an officer of the CBI. In the statements recorded by various

IOs, particularly, the local police and State CID these eye

witnesses except few claim to have identified any of the

miscreants involved in the incident. As rightly observed by the

High Court, for a long number of days, many of these eye-

witnesses never came forward before the IOs and the police

personnel visiting the village from time to time claiming that

they had seen the occurrence. In these circumstances, no

importance need to be attached on the testimony of these eye-

witnesses about their identification of the appellants other

than Dara Singh (A1) and Mahendra Hembram (A3) before the

trial Court for the first time without corroboration by previous

TIP held by the Magistrate in accordance with the procedure

established. It is well settled principle that in the absence of

any independent corroboration like TIP held by judicial

Magistrate, the evidence of eye-witnesses as to the

identification of the appellants/accused for the first time

before the trial Court generally cannot be accepted. As

explained in Manu Sharma vs. State (NCT of Delhi) (2010) 6

29

SCC 1 case, that if the case is supported by other materials,

identification of the accused in the dock for the first time

would be permissible subject to confirmation by other

corroborative evidence, which are lacking in the case on hand

except for A1 and A3.

12) In the same manner, showing photographs of the

miscreants and identification for the first time in the trial

Court without being corroborated by TIP held before a

Magistrate or without any other material may not be helpful to

the prosecution case. To put it clear, the evidence of witness

given in the court as to the identification may be accepted only

if he identified the same persons in a previously held TIP in

jail. It is true that absence of TIP may not be fatal to the

prosecution. In the case on hand, (A1) and (A3) were identified

and also corroborated by the evidence of slogans given in his

name and each one of the witnesses asserted the said aspect

insofar as they are concerned. We have also adverted to the

fact that none of these witnesses named the offenders in their

statements except few recorded by IOs in the course of

investigation. Though an explanation was offered that out of

30

fear they did not name the offenders, the fact remains, on the

next day of the incident, Executive Magistrate and top level

police officers were camping the village for quite some time.

Inasmuch as evidence of the identification of the accused

during trial for the first time is inherently weak in character,

as a safe rule of prudence, generally it is desirable to look for

corroboration of the sworn testimony of witnesses in court as

to the identity of the accused who are strangers to them, in

the form of earlier TIP. Though some of them were identified

by the photographs except (A1) and (A3), no other

corroborative material was shown by the prosecution.

13) Now let us discuss the evidentiary value of photo

identification and identifying the accused in the dock for the

first time. Learned Addl. Solicitor General, in support of the

prosecution case about the photo identification parade and

dock identification, heavily relied on the decision of this Court

in Manu Sharma (supra). It was argued in that case that PW

2 Shyan Munshi had left for Kolkata and thereafter, photo

identification was got done when SI Sharad Kumar, PW 78

went to Kolkata to get the identification done by picking up

31

from the photographs wherein he identified the accused Manu

Sharma though he refused to sign the same. However, in the

court, PW 2 Shyan Munshi refused to recognise him. In any

case, the factum of photo identification by PW 2 as witnessed

by the officer concerned is a relevant and an admissible piece

of evidence. In para 254, this Court held:

"Even a TIP before a Magistrate is otherwise hit by Section

162 of the Code. Therefore to say that a photo identification

is hit by Section 162 is wrong. It is not a substantive piece of

evidence. It is only by virtue of Section 9 of the Evidence Act

that the same i.e. the act of identification becomes

admissible in court. The logic behind TIP, which will include

photo identification lies in the fact that it is only an aid to

investigation, where an accused is not known to the

witnesses, the IO conducts a TIP to ensure that he has got

the right person as an accused. The practice is not borne out

of procedure, but out of prudence. At best it can be brought

under Section 8 of the Evidence Act, as evidence of conduct

of a witness in photo identifying the accused in the presence

of an IO or the Magistrate, during the course of an

investigation."

It was further held:

It is trite to say that the substantive evidence is the evidence

of identification in court. Apart from the clear provisions of

Section 9 of the Evidence Act, the position in law is well

settled by a catena of decisions of this Court. The facts,

which establish the identity of the accused persons, are

relevant under Section 9 of the Evidence Act. As a general

rule, the substantive evidence of a witness is the statement

made in court. The evidence of mere identification of the

accused person at the trial for the first time is from its very

nature inherently of a weak character. The purpose of a prior

test identification, therefore, is to test and strengthen the

trustworthiness of that evidence. It is, accordingly,

considered a safe rule of prudence to generally look for

corroboration of the sworn testimony of witnesses in court as

to the identity of the accused who are strangers to them, in

the form of earlier identification proceedings. This rule of

prudence, however, is subject to exceptions, when, for

32

example, the court is impressed by a particular witness on

whose testimony it can safely rely, without such or other

corroboration. The identification parades belong to the stage

of investigation, and there is no provision in the Code which

obliges the investigating agency to hold or confers a right

upon the accused to claim a test identification parade. They

do not constitute substantive evidence and these parades are

essentially governed by Section 162 of the Code. Failure to

hold a test identification parade would not make

inadmissible the evidence of identification in court. The

weight to be attached to such identification should be a

matter for the courts of fact. In appropriate cases it may

accept the evidence of identification even without insisting

on corroboration.

It was further held that "the photo identification and TIP are

only aides in the investigation and do not form substantive

evidence. The substantive evidence is the evidence in the

court on oath".

14) In Umar Abdul Sakoor Sorathia vs. Intelligence

Officer, Narcotic Control Bureau, AIR 1999 SC 2562, the

following conclusion is relevant:

"12. In the present case prosecution does not say that they

would rest with the identification made by Mr. Mkhatshwa

when the photograph was shown to him. Prosecution has to

examine him as a witness in the court and he has to identify

the accused in the court. Then alone it would become

substantive evidence. But that does not mean that at this

stage the court is disabled from considering the prospect of

such a witness correctly identifying the appellant during

trial. In so considering the court can take into account the

fact that during investigation the photograph of the

appellant was shown to the witness and he identified that

person as the one whom he saw at the relevant time"

33

15) In Jana Yadav vs. State of Bihar, (2002) 7 SCC 295,

para 38, the following conclusion is relevant:

"Failure to hold test identification parade does not make the

evidence of identification in court inadmissible, rather the

same is very much admissible in law, but ordinarily

identification of an accused by a witness for the first time in

court should not form the basis of conviction, the same

being from its very nature inherently of a weak character

unless it is corroborated by his previous identification in the

test identification parade or any other evidence. The previous

identification in the test identification parade is a check

valve to the evidence of identification in court of an accused

by a witness and the same is a rule of prudence and not law.

It is clear that identification of accused persons by witness in

dock for the first time though permissible but cannot be given

credence without further corroborative evidence. Though

some of the witnesses identified some of the accused in the

dock as mentioned above without corroborative evidence the

dock identification alone cannot be treated as substantial

evidence, though it is permissible.

16) Mr. Tulsi, learned senior counsel for the accused heavily

commented on the statements of eye-witnesses which,

according to him, are contradictory to each other on material

points. He highlighted that exaggerated and improved version

of the incident makes it difficult to place implicit reliance on

34

the statements of any of these witnesses. He cited various

instances in support of his claim.

a) As regards the number of persons who have allegedly

attacked the vehicles, it was pointed out that PW 23 - Joseph

Marandi (brother of PW 15)/Christian/15 years at the time of

incident) has stated that 20-22 persons surrounded the

vehicle. On the other hand, PW 39 - Soleman Marandi and

PW 10 - Nimai Hansda deposed that 30/40 persons

surrounded the vehicle. PW 15 - Mathai Marandi found

40/50 persons were beating with lathis. PW 43 - Lablal Tudu

(son of PW 2) deposed that 50/60 persons were beating the

vehicle whereas PW 2 - Basi Tudu found 60 persons going

towards the church. PW 3, Paul Murmu found 60/70 persons

putting straw beneath the vehicle and setting fire. PW 36 -

Raghunath Dohal mentioned that about 60-70 people

gathered in front of the church.

b) As regards straw being kept on the roof of the vehicle to

prevent cold, PWs 3, 10, 11, 15, 36, 39, 43, 45 and 52

mentioned different versions.

35

c) With regard to whether there was a light or not which is

vital for identification of miscreants prior to vehicle caught fire,

PW 2 has stated that Moon had already set and he identified

Chenchu and A 7 in the light of lamp (dibri) put in the

verandah. On the other hand, PW 5, who was 11 years old at

the time of evidence has mentioned that it was dark night. PW

11 has stated that he had not seen any lamp burning in the

verandah of neighbours but saw some miscreants due to

illumination of fire. PW 43 has stated that there is no

electricity supply in the village and stated that they do not

keep light in verandah while sleeping inside the house during

night.

d) About chilly wintry night, PW3 has stated it was chilly

night with dew dropping whereas PW15 has stated that he

cannot say whether there was fog at the night of occurrence

and PW 36 has stated it was wintry night and PW52 has

stated fog occurs during the month of December and January

and he could not say if there was any fog at the night of

occurrence.

36

e) With regard to clothes worn by attackers, PW36 has

stated that A1 was wearing a Punjabi Kurta, A3 and A12 were

wearing a banian. PW19 has stated that he saw 9 persons out

of which 8 were wearing trousers and shirts and one person

who was addressed as Dara was wearing a lungi and Punjabi

Kurta. PW39 has stated that during winter season people

usually come with their body covered. PW52 has stated that

usually people wear winter clothing during December and

January.

f) With regard to the aspect whether the accused persons

had covered their faces, PW 4 who is the informant has stated

that the faces of the accused were covered. On the other

hand, PWs 11, 15 and 36 have asserted that none covered

their faces.

g) As regard to who lit the fire, PW3 has stated that a short

person lit fire. PW10 has mentioned that he did not see

anyone whereas PW11 has stated that number of people set

fire. PW32 has mentioned that there was no gathering near

the vehicles when they caught fire. PW 36 has stated not seen

any villager in between the house of the PW4 and the Church

37

and PW39 has stated he had not seen any female near the

place of occurrence.

h) As regard to whether Nagin dance was over or not, PW 32

had deposed that when the vehicle caught fire, Nagin dance

was being performed whereas PW 39 has deposed that dance

continued throughout the night.

i) Whether Nagin dance was visible from the place of

occurrence, PW 3 has stated that it was not visible due to

darkness. PW 4 has stated the distance between Nagin dance

and Church is 200 ft. PW 5 has stated that Church was not

visible from the place of Nagin dance and the distance was 200

ft. PW 6 has mentioned that Church was visible from the

place of Nagin dance and distance was 200 ft and finally PW

32 has stated the church was visible from the place of Nagin

dance.

j) With regard to distance between place of occurrence and

Nagin dance, PW 15 has mentioned the distance is 200 ft. PW

32 has stated that vehicles were visible from the place of Nagin

dance, PW 36 has stated Nagin dance staged 10-12 houses

apart from Church at front side whereas PW 39 has stated

38

Nagin dance staged 4 houses apart from Chruch and PW 43

has stated that it was staged 5 houses apart from church and

he admitted that he was not sure of the distance between

church and the place of Nagin dance.

k) With regard to their arrival at the place of occurrence, PW

11 has stated that PWs 4, 15 and 23 came to the place of

occurrence an hour after the miscreants left the place whereas

they deposed that they were present there from the beginning.

PW 10 has stated that he woke up on hearing bursting and

beating sound. PW 15 has deposed that he went to the huts

behind the church and called PWs 10, 3 and others. PW 3 has

stated that he was woken up by PW 10.

17) By pointing out these contradictions, Mr. Tulsi submitted

that the presence of these witnesses becomes doubtful.

However, if we see these witnesses through microscope, it is

true that the above mentioned contradictions would be visible

and clear but by and large they explained the prosecution case

though they could not identify all the accused persons with

clarity except Dara Singh (A1) and Mahendra Hembram (A3).

By virtue of these minor contradictions, their testimony cannot

39

be rejected in toto. But, by and large, there are minor

contradictions in their statements as demonstrated by Mr.

Tulsi. In the face of the above-mentioned difference in the

evidence of prosecution witnesses with regard to light,

clothing, number of accused persons, fog, faces covered or not,

it is not acceptable in toto except certain events and incidents

which are reliable and admissible in evidence.

CONFESSIONS:

18) It was submitted that confessions of various accused

persons, namely, A9, A 11 and A 12 under Section 164 Cr.P.C.

cannot be considered to be voluntary on account of the fact

that all the co-accused persons were produced before the

Magistrate from police custody and were remanded back to

police custody. It was further highlighted that accused No. 14

was produced from police custody for recording his confession

while A 13 made his statement when he was on bail and in no

case the Magistrate ensured the accused persons that if they

decline they would not be sent to police custody. It was

further highlighted that illiterate accused persons cannot be

expected to have knowledge of finest nuances of procedure. It

40

was pointed that besides all confessions being exculpatory and

made after conspiracy ceases to be operative are inadmissible.

Finally, it was stated that Section 164 Cr.P.C. requires faithful

compliance and failure impairs their evidentiary value.

19) Section 164 Cr.P.C. speaks about recording of

confessions and statements. It reads thus:

"164. Recording of confessions and statements. (1) Any

Metropolitan Magistrate or Judicial Magistrate may, whether

or not he has jurisdiction in the case, record any confession

or statement made to him in the course of an investigation

under this Chapter or under any other law for the time being

in force, or at any, time afterwards before the

commencement of the inquiry or trial:

Provided that any confession or statement made under this

sub-section may also be recorded by audio-video electronic

means in the presence of the advocate of the person accused

of an offence:

Provided that no confession shall be recorded by a police

officer on whom any power of a Magistrate has been

conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such

confession, explain to the person making it that he is not

bound to make a confession and that, if he does so, it may

be used as evidence against him; and the Magistrate shall

not record any such confession unless, upon questioning the

person making it, he has reason to believe that it is bear,

made voluntarily.

(3) If at any time before the confession is recorded, the

person appearing before the Magistrate states that he is not

willing to make the confession, the Magistrate shall not

authorize the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner

provided in section 281 for recording the examination of an

41

accused person and shall be signed by the person making

the confession; and the Magistrate shall make a

memorandum at the foot of such record to the following

effect.

"I have explained to (name) that he is not bound to make a

confession and that, if he does so, any confession he may

make may be used as evidence against him and I believe

that this confession was voluntarily made. It was taken in

my presence and hearing, and was read over to the person

making it and admitted by him to be correct, and it

contains a full and true account of the statement made by

him.

(Signed) A.B.

Magistrate

(5) Any statement (other than a confession) made under

sub-section (1) shall be recorded in such manner hereinafter

provided for the recording of evidence as is, in the opinion of

the Magistrate, best fitted to the circumstances of the case;

and the Magistrate shall have power to administer oath to

the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under

this section shall forward it to the Magistrate by whom the

case is to be inquired into or tried. "

20) While elaborating non-compliance of mandates of Section

164 Cr.P.C., Mr. Tulsi, learned senior counsel appearing for

the accused cited various instances.

(a) Accused No. 9, Rabi Soren, was arrested by the

investigating agency and remanded to police custody for 7

days i.e. from 20.05.1999. It is their claim that on

18.05.1999, Accused No.9 made a statement under Section

164 Cr.P.C. and thereafter remanded back to police custody.

42

It was also pointed out that in his statement under Section

313 Cr.P.C. the accused person stated that he was beaten by

the investigating agency.

(b) Another instance relates to Mahadev Mahanta, Accused

No. 11 who was arrested on 01.07.1999 by the investigating

agency and he was remanded to police custody. However, on

08.07.1999, Accused No. 11 made a statement under Section

164 Cr.P.C. PW 55, I.O. has stated that the statement of the

accused was recorded under Section 164 Cr.P.C. that he was

under police custody and he was remanded back to police

custody. In his statement under Section 313 Cr.P.C. he also

stated that he was beaten by the investigating agency.

(c) In the case of Turam Ho Accused No. 12, he was arrested

on 13.05.1999 by the Investigating Agency and from

19.05.1999 to 23.05.1999 the accused person was in custody

of the investigating agency. While so, on 21.05.1999, the

accused No. 12 made a statement under Section 164 Cr.P.C

and thereafter remanded back to police custody. It was

pointed out that he also stated in his statement under Section

313 Cr.P.C. that he was beaten by the investigating agency.

43

(d) The next instance relates to Umakanta Bhoi, Accused No.

13 who refused to make a statement under Section 164 Cr.P.C

prayed by I.O. to be put for 16.03.1999 for recording

statement. It was directed to jail authority to keep the

accused under calm and cool atmosphere. A 13 was produced

from Judicial Custody for recording statement under Section

164 Cr.P.C. and he refused to make a statement. However, on

31.08.1999, he made a confessional statement.

(e) In the case of Dayanidhi Patra, Accused No. 14, on

21.09.1999, he was arrested by the Investigating Agency. On

24.09.1999, Learned ASJ granted police remand for 7 days i.e.

on 01.10.1999 and that on that day A 14 made a statement

under Section 164 Cr.P.C. It was pointed out that in his

statement under Section 313 Cr.P.C. the accused person

stated that he was beaten by the investigating agency.

21) Before analyzing the confessional statements of various

accused persons and its applicability and the procedure

followed by the Magistrate in recording the statement, let us

consider various decisions touching these aspects.

44

22) In Bhagwan Singh and Ors. vs. State of M.P. (2003) 3

SCC 21, while considering these issues, it was held:

"27......The first precaution that a Judicial Magistrate is

required to take is to prevent forcible extraction of confession

by the prosecuting agency (see State of U.P. v. Singhara

Singh, AIR 1964 SC 358). It was also held by this Court in

the case of Shivappa v. State of Karnataka, (1995) 2 SCC 76

that the provisions of Section 164 CrPC must be complied

with not only in form, but in essence. Before proceeding to

record the confessional statement, a searching enquiry must

be made from the accused as to the custody from which he

was produced and the treatment he had been receiving in

such custody in order to ensure that there is no scope for

doubt of any sort of extraneous influence proceeding from a

source interested in the prosecution.

28. It has also been held that the Magistrate in particular

should ask the accused as to why he wants to make a

statement which surely shall go against his interest in the

trial. He should be granted sufficient time for reflection. He

should also be assured of protection from any sort of

apprehended torture or pressure from the police in case he

declines to make a confessional statement. Unfortunately, in

this case, the evidence of the Judicial Magistrate (PW 1) does

not show that any such precaution was taken before

recording the judicial confession.

29. The confession is also not recorded in questions-and-

answers form which is the manner indicated in the criminal

court rules.

30. It has been held that there was custody of the accused

Pooran Singh with the police immediately preceding the

making of the confession and it is sufficient to stamp the

confession as involuntary and hence unreliable. A judicial

confession not given voluntarily is unreliable, more so when

such a confession is retracted. It is not safe to rely on such

judicial confession or even treat it as a corroborative piece of

evidence in the case. When a judicial confession is found to

be not voluntary and more so when it is retracted, in the

absence of other reliable evidence, the conviction cannot be

based on such retracted judicial confession. (See Shankaria

v. State of Rajasthan, (1978) 3 SCC 435 (para 23)"

45

23) In Shivappa vs. State of Karnataka (1995) 2 SCC 76,

while reiterating the same principle it was held:-

"6. From the plain language of Section 164 CrPC and the

rules and guidelines framed by the High Court regarding the

recording of confessional statements of an accused under

Section 164 CrPC, 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 CrPC. 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 CrPC 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 renders the confession unworthy

of credence. Before proceeding to record the confessional

statement, a searching enquiry must be made from the

accused as to the custody from which he was produced and

the treatment he had been receiving in such custody in order

to ensure that there is no scope for doubt of any sort of

extraneous influence proceeding from a source interested in

the prosecution still lurking in the mind of an accused. In

case the Magistrate discovers on such enquiry that there is

ground for such supposition he should give the accused

sufficient time for reflection before he is asked to make his

statement and should assure himself that during the time of

reflection, he is completely out of police influence. An

accused should particularly be asked the reason why he

wants to make a statement which would surely go against

his self-interest in course of the trial, even if he contrives

subsequently to retract the confession. Besides

administering the caution, warning specifically provided for

in the first part of sub-section (2) of Section 164 namely,

that the accused is not bound to make a statement and that

if he makes one it may be used against him as evidence in

relation to his complicity in the offence at the trial, that is to

follow, he should also, in plain language, be assured of

protection from any sort of apprehended torture or pressure

from such extraneous agents as the police or the like in case

he declines to make a statement and be given the assurance

46

that even if he declined to make the confession, he shall not

be remanded to police custody.

7. The Magistrate who is entrusted with the duty of

recording confession of an accused coming from police

custody or jail custody must appreciate his function in that

behalf as one of a judicial officer and he must apply his

judicial mind to ascertain and satisfy his conscience that the

statement the accused makes is not on account of any

extraneous influence on him. That indeed is the essence of a

`voluntary' statement within the meaning of the provisions of

Section 164 CrPC and the rules framed by the High Court for

the guidance of the subordinate courts. Moreover, the

Magistrate must not only be satisfied as to the voluntary

character of the statement, he should also make and leave

such material on the record in proof of the compliance with

the imperative requirements of the statutory provisions, as

would satisfy the court that sits in judgment in the case,

that the confessional statement was made by the accused

voluntarily and the statutory provisions were strictly

complied with.

8. From a perusal of the evidence of PW 17, Shri Shitappa,

Additional Munsif Magistrate, we find that though he had

administered the caution to the appellant that he was not

bound to make a statement and that if he did make a

statement that may be used against him as evidence but PW

17 did not disclose to the appellant that he was a Magistrate

and that the confession was being recorded by him in that

capacity nor made any enquiry to find out whether he had

been influenced by anyone to make the confession. PW 17

stated during his deposition in court: "I have not stated to

the accused that I am a Magistrate" and further admitted: "I

have not asked the accused as to whether the police have

induced them (Chithavani) to give the statement." The

Magistrate, PW 17 also admitted that "at the time of

recording the statement of the accused no police or police

officials were in the open court. I cannot tell as to whether

the police or police officials were present in the vicinity of the

court". From the memorandum prepared by the Munsif

Magistrate, PW 17 as also from his deposition recorded in

court it is further revealed that the Magistrate did not lend

any assurance to the appellant that he would not be sent

back to the police custody in case he did not make the

confessional statement. Circle Police Inspector Shivappa

Shanwar, PW 25 admitted that the sub-jail, the office of the

Circle Police Inspector and the police station are situated in

the same premises. No contemporaneous record has been

placed on the record to show that the appellant had actually

47

been kept in the sub-jail, as ordered by the Magistrate on

21-7-1986 and that he was out of the zone of influence by

the police keeping in view the location of the sub-jail and the

police station. The prosecution did not lead any evidence to

show that any jail authority actually produced the appellant

on 22-7-1986 before the Magistrate. That apart, neither on

21-7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17

question the appellant as to why he wanted to make the

confession or as to what had prompted him to make the

confession. It appears to us quite obvious that the Munsif

Magistrate, PW 17 did not make any serious attempt to

ascertain the voluntary character of the confessional

statement. The failure of the Magistrate to make a real

endeavour to ascertain the voluntary character of the

confession, impels us to hold that the evidence on the record

does not establish that the confessional statement of the

appellant recorded under Section 164 CrPC was voluntary.

The cryptic manner of holding the enquiry to ascertain the

voluntary nature of the confession has left much to be

desired and has detracted materially from the evidentiary

value of the confessional statement. It would, thus, neither

be prudent nor safe to act upon the confessional statement

of the appellant....."

24) In Dagdu and Others vs. State of Maharashtra, (1977)

3 SCC 68, the following paragraph is relevant:-

"51. Learned Counsel appearing for the State is right that

the failure to comply with Section 164(3) of the Criminal

Procedure Code, or with the High Court Circulars will not

render the confessions inadmissible in evidence. Relevancy

and admissibility of evidence have to be determined in

accordance with the provisions of the Evidence Act. Section

29 of that Act lays down that if a confession 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

48

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 observe the safeguards prescribed therein are in

practice calculated to impair the evidentiary value of the

confessional statements."

25) Davendra Prasad Tiwari vs. State of U.P. (1978) 4 SCC

474, the following conclusion arrived at by this Court is

relevant:-

"13..... It is also true that before a confessional statement

made under Section 164 of the Code of Criminal Procedure

can be acted upon, it must be shown to be voluntary and

free from police influence and that the confessional

statement made by the appellant in the instant case cannot

be taken into account, as it suffers from serious infirmities

in that (1) there is no contemporaneous record to show that

the appellant was actually kept in jail as ordered on

September 6, 1974 by Shri R.P. Singh, Judicial Magistrate,

Gorakhpur, (2) Shri R.P. Singh who recorded the so called

confessional statement of the appellant did not question him

as to why he was making the confession and (3) there is also

nothing in the statement of the said Magistrate to show that

he told the appellant that he would not be remanded to the

police lock-up even if he did not confess his guilt. It cannot

also be gainsaid that the circumstantial evidence relied upon

by the prosecution must be complete and incapable of

explanation of any other hypothesis than that of the guilt of

the accused."

26) In Kalawati & Ors. vs. State of Himachal Pradesh,

1953 SCR 546 at 631, this Court held:

"...In dealing with a criminal case where the prosecution

relies upon the confession of one accused person against

another accused person, the proper approach to adopt is to

49

consider the other evidence against such an accused person,

and if the said evidence appears to be satisfactory and the

court is inclined to hold that the said evidence may sustain

the charge framed against the said accused person, the

court turns to the confession with a view to assure itself that

the conclusion which it is inclined to draw from the other

evidence is right."

27) In State thr. Superintendent of Police, CBI/SIT vs.

Nalini and Others (1999) 5 SCC 253 at 307, the following

paragraphs are relevant which read as under:-

"96. What is the evidentiary value of a confession made by

one accused as against another accused apart from Section

30 of the Evidence Act? While considering that aspect we

have to bear in mind that any confession, when it is sought

to be used against another, has certain inherent

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

contained in Section 15(1) of TADA, under what provision

can a confession of one accused be used against another co-

accused at all? It must be remembered that Section 15(1) of

TADA does not say that a confession can be used against a

co-accused. It only says that a confession would be

admissible in a trial of not only the maker thereof but a co-

accused, abettor or conspirator tried in the same case.

50

98. Sir John Beaumont speaking for five Law Lords of the

Privy Council in Bhuboni Sahu v. R., AIR 1949 PC 257 had

made the following observations:

"Section 30 seems to be based on the view that an admission

by an accused person of his own guilt affords some sort of

sanction in support of the truth of his confession against

others as well as himself. But a confession of a co-accused is

obviously evidence of a very weak type. It does not indeed

come within the definition of `evidence' contained in Section

3, Evidence Act. It is not required to be given on oath, nor in

the presence of the accused, and it cannot be tested by

cross-examination. It is a much weaker type of evidence than

the evidence of an approver which is not subject to any of

those infirmities. Section 30, however, provides that the

court may take the confession into consideration and

thereby, no doubt, makes it evidence on which the court may

act; but the section does not say that the confession is to

amount to proof. Clearly there must be other evidence. The

confession is only one element in the consideration of all the

facts proved in the case; it can be put into the scale and

weighed with the other evidence."

99. The above observations had since been treated as the

approved and established position regarding confession vis-

`-vis another co-accused. Vivian Bose, J., speaking for a

three-Judge Bench in Kashmira Singh v. State of M.P., AIR

1952 SC 159 had reiterated the same principle after quoting

the aforesaid observations. A Constitution Bench of this

Court has followed it in Haricharan Kurmi v. State of Bihar,

AIR 1964 SC 1184."

28) In State of Maharashtra vs. Damu (2000) 6 SCC 269,

the same principles had been reiterated which read as under:-

"19. We have considered the above reasons and the

arguments addressed for and against them. We have realised

that those reasons are ex facie fragile. Even otherwise, a

Magistrate who proposed to record the confession has to

ensure that the confession is free from 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

51

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 such a case would

always be a question of fact to be determined in the light of

the circumstances of each case."

This has been followed by this Court in Kehar Singh v. State

(Delhi Admn.)"

29) The following principles emerge with regard to Section

164 Cr.P.C.:-

(i) The provisions of Section 164 Cr.P.C. must be complied

with not only in form, but in essence.

(ii) Before proceeding to record the confessional statement, a

searching enquiry must be made from the accused as to the

custody from which he was produced and the treatment he

had been receiving in such custody in order to ensure that

there is no scope for doubt of any sort of extraneous influence

proceeding from a source interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he wants

to make a statement which surely shall go against his interest

in the trial.

52

(iv) The maker should be granted sufficient time for

reflection.

(v) He should be assured of protection from any sort of

apprehended torture or pressure from the police in case he

declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable,

more so, when such a confession is retracted, the conviction

cannot be based on such retracted judicial confession.

(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of

the Magistrate's jurisdiction to record the confession and

renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be

completely out of police influence. The judicial officer, who is

entrusted with the duty of recording confession, must apply

his judicial mind to ascertain and satisfy his conscience that

the statement of the accused is not on account of any

extraneous influence on him.

(ix) At the time of recording the statement of the accused, no

police or police official shall be present in the open court.

(x) Confession of a co-accused is a weak type of evidence.

53

(xi) Usually the Court requires some corroboration from the

confessional statement before convicting the accused person

on such a statement.

Judicial Magistrates (PWs-29 & 34)

30) Ashok Kumar Agrawal, PW29 and Tojaka Bharti, PW34,

Judicial Magistrates recorded the confessional statements of

some of the accused. Judicial Magistrate, PW29 recorded the

confessional statement of Rabi Soren and Turam Ho and

PW34, Judicial Magistrate recorded the confessional statement

of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi Patra. It

is the claim of Mr. K.T.S. Tulsi, learned senior counsel for the

accused, that the evidence of PW29 and PW34, Judicial

Magistrates shows that they were blissfully unaware of the

stringent responsibility cast on them by Section 164 Cr.P.C.

According to him, their evidence create an impression that

they were not aware of the difference between the police

custody and judicial custody nor do they seem to understand

the significance of Section 164 Cr.P.C. He pointed out that

why the first four pages in case of each of the accused persons

is not signed by the accused is not explained. They neither

54

asked any searching questions regarding the nature of custody

either from the accused persons or from police nor did they

scrutinize the records to ascertain the same from remand

orders. He also pointed out that none of the accused who

have confessed had been given the assurance that if they

refuse to make any confession, they would not be remanded to

police custody. This assurance is required for an accused to

make an informed decision being fully aware of the

consequences of refusing.

31) It is seen from the evidence of PW29, who recorded the

confession of Rabi Soren, that at the relevant time the accused

was in the custody of CBI and from that custody he was

produced before the Addl. Chief Judicial Magistrate on

18.05.1999. Though PW29 had asked the accused many

things about the voluntariness, the High Court, on analysis of

his entire evidence, came to a conclusion that only a routine

statutory certificate as required under Section 164 Cr.P.C. was

given by him. The High Court also pointed out that he did not

caution that if the accused Rabi Soren refused to make any

confession, he would not be remanded to C.B.I. or Police

55

custody. He was not informed that if he confessed, such

confession may be used in evidence against him and on that

basis there was possibility of his being sentenced to death or

life imprisonment. It was also pointed out that his body was

not checked to find out as to whether he was subjected to

torture when he was in police custody. It was also pointed out

by the High Court that five hours' time was given for reflection

during which period he was in the custody of his Bench Clerk

in his Chamber. PW29, after recording confessional statement

of Rabi Soren on 18.05.1999, again remanded him to the

custody of police, i.e. C.B.I. till 20.05.1999. This is clear from

the evidence of PW55 (I.O.). It is relevant to point out that

under sub-section (3) of Section 164 Cr.P.C. that if any

accused refuses to make any confessional statement, such

Magistrate shall not authorize detention of the accused in

police custody. Remanding Rabi Soren to Police custody after

his statement was recorded under Section 164 Cr.P.C. is not

justified. As rightly observed by the High Court, possibility of

coercion, threat or inducement to the accused Rabi Soren to

make the confession cannot be ruled out. In the same

56

manner, confession of another accused Turam Ho was also

recorded by the very same Magistrate. Here again, the High

Court pointed out that he was not cautioned that if he made

any confession, same may be used against him in evidence

and on that basis he may be sentenced to death or

imprisonment for life. Equally he was not cautioned by PW29

that if he refused to make the confessional statement, he

would not be remanded to police custody. 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

57

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 remanded to police

custody. Though the Magistrates have deposed that the

procedure provided under Section 164 Cr.P.C. has been

complied with, various warnings/cautions required to be given

to the accused before recording such confession, have not

been fully adhered to by them.

33) Apart from the strong observation of the High Court

about procedural lapse on the part of PWs 29 & 34, we also

verified their statements and requirements in terms of Section

164 Cr.P.C. In the certificate, there is no specific reference

about the nature of the custody from which these persons

were produced nor about the assurance that they would not

58

be remanded to police custody if they declined. We have

already pointed out that Section 164 Cr.P.C. requires strict

and faithful compliance of sub-sections 2 to 4, the failure to

observe safeguards not only impairs evidentiary value of

confession but cast a doubt on nature and voluntariness of

confession on which no reliance can be placed. As rightly

observed by the High Court, no exceptional circumstances

could be brought to our notice by the prosecution in respect of

the appellants other than A1 and A3.

34) It was next argued that the incident could not have been

happened as suggested by the prosecution. According to the

learned senior counsel for the accused the reason of possibility

of the incident which took place in the dead of the night as a

result of the accident from burning of the stove etc. for

generating heat on cold wintry night cannot be ruled out. In

support of the above contention, he pointed out several

circumstances which are inconsistent with the fire starting by

arson from outside. On going through the entire materials, we

are unable to accept the said contention. Though we noticed

several inconsistencies in the prosecution evidence and the

59

accused persons were not specifically identified except A1 and

A3, the fact remains that the Van in which Graham Staines

and his two children were sleeping were set on fire and burnt

to death due to the cause of the miscreants. In other words,

death of these three persons by setting fire by the miscreants

cannot be ruled out. There is no material to conclude that the

fire emanated from inside of the vehicle and then spread to

rest of the vehicle after the fuel tank caught fire. There is no

basis for such conclusion though the prosecution witnesses

could not pin-point and identify the role of each accused.

35) Another question which we have to consider is whether

the Police (CBI) had the power under the Cr.P.C. 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 Cr.P.C. 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

60

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 vs. 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. vs. Satish Chandra, District Magistrate,

Delhi and Ors., (1954) SCR 1077. After adverting to various

factual aspects, the larger Bench formulated the following

questions for consideration:

"2. ... ... On these facts, the only questions of constitutional

importance that this Bench has to determine are; (1)

whether by the production of the specimen handwritings -

Exs. 27, 28, and 29 - the accused could be said to have been

'a witness against himself' within the meaning of Article

20(3) of the Constitution; and (2) whether the mere fact that

when those specimen handwritings had been given, the

accused person was in police custody could, by itself,

amount to compulsion, apart from any other circumstances

which could be urged as vitiating the consent of the accused

in giving those specimen handwritings. ... ...

4. ... ... The main question which arises for determination in

this appeal is whether a direction given by a Court to an

accused person present in Court to give his specimen writing

and signature for the purpose of comparison under the

provisions of section 73 of the Indian Evidence Act infringes

the fundamental right enshrined in Article 20(3) of the

Constitution.

61

The following conclusion/answers are relevant:

10. ... ... Furnishing evidence" in the latter sense could not

have been within the contemplation of the Constitution-

makers for the simple reason that - though they may have

intended to protect an accused person from the hazards of

self-incrimination, in the light of the English Law on the

subject - they could not have intended to put obstacles in

the way of efficient and effective investigation into crime and

of bringing criminals to justice. The taking of impressions or

parts of the body of an accused person very often becomes

necessary to help the investigation of a crime. It is as much

necessary to protect an accused person against being

compelled to incriminate himself, as to arm the agents of law

and the law courts with legitimate powers to bring offenders

to justice. ... ....

11. ... ... When an accused person is called upon by the

Court or any other authority holding an investigation to give

his finger impression or signature or a specimen of his

handwriting, he is not giving any testimony of the nature of a

'personal testimony'. The giving of a 'personal testimony'

must depend upon his volition. He can make any kind of

statement or may refuse to make any statement. But his

finger impressions or his handwriting, in spite of efforts at

concealing the true nature of it by dissimulation cannot

change their intrinsic character. Thus, the giving of finger

impressions or of specimen writing or of signatures by an

accused person, though it may amount to furnishing

evidence in the larger sense, is not included within the

expression 'to be a witness'.

12. ... ... A specimen handwriting or signature or finger

impressions by themselves are no testimony at all, being

wholly innocuous because they are unchangeable except in

rare cases where the ridges of the fingers or the style of

writing have been tampered with. They are only materials for

comparison in order to lend assurance to the Court that its

inference based on other pieces of evidence is reliable. They

are neither oral nor documentary evidence but belong to the

third category of material evidence which is outside the limit

of 'testimony'.

16. In view of these considerations, we have come to the

following conclusions :-

62

(1) An accused person cannot be said to have been

compelled to be a witness against himself simply because he

made a statement while in police custody, without anything

more. In other words, the mere fact of being in police

custody at the time when the statement in question was

made would not, by itself, as a proposition of law, lend itself

to the inference that the accused was compelled to make the

statement, though that fact, in conjunction with other

circumstances disclosed in evidence in a particular case,

would be a relevant consideration in an enquiry whether or

not the accused person had been compelled to make the

impugned statement.

(2) The mere questioning of an accused person by a police

officer, resulting in a voluntary statement, which may

ultimately turn out to be incriminatory, is not 'compulsion'.

(3) 'To be a witness' is not equivalent to 'furnishing evidence'

in its widest significance; that is to say, as including not

merely making of oral or written statements but also

production of documents or giving materials which may be

relevant at a trial to determine the guilt innocence of the

accused.

(4) Giving thumb impressions or impressions of foot or palm

or fingers or specimen writings or showing parts of the body

by way of identification are not included in the expression 'to

be a witness'.

(5) 'To be a witness' means imparting knowledge in respect of

relevant facts by an oral statement or a statement in writing,

made or given in Court or otherwise.

(6) 'To be a witness' in its ordinary grammatical sense means

giving oral testimony in Court. Case law has gone beyond

this strict literal interpretation of the expression which may

now bear a wider meaning, namely, bearing testimony in

Court or out of Court by a person accused of an offence,

orally or in writing.

(7) To bring the statement in question within the prohibition

of Article 20(3), the person accused must have stood in the

character of an accused person at the time he made the

statement. It is not enough that he should become an

accused, any time after the statement has been made."

63

In view of the above principles, the procedure adopted by the

investigating agency, analyzed and approved by the trial Court

and confirmed by the High Court, cannot be faulted with. In

view of oral report of Rolia Soren, PW 4 which was reduced

into writing, the evidence of PW 23, two letters dated

01.02.2002 and 02.02.2002 addressed by Mahendra

Hembram (A3) to the trial Judge facing his guilt coupled with

the other materials, we are unable to accept the argument of

Mr. Ratnakar Dash, learned senior counsel for Mahendra

Hembram (A3) and we confirm the conclusion arrived by the

High Court.

Additional factors-Mahendra Hembram (A3).

36) Coming to the role of Mahendra Hembram A3, the

prosecution very much relied on his letters dated 01.02.2002

and 02.02.2002 addressed to the Sessions Judge wherein he

confessed his guilt. Though a serious objection was taken

about the admissibility of these two letters, the contents of

these two letters addressed to the Sessions Judge in the

course of trial lend ample corroboration to his identification

before the trial Court by Joseph Marandi, PW 23. Even in his

64

case, it is true that there was no TIP conducted by Judicial

Magistrate. However, inasmuch as when he was facing trial,

he sent the above-mentioned two letters to the Sessions Judge

which lend corroboration to his identification in the trial court

by PW 23 and rightly observed by the High Court, the same

can be safely relied upon. The evidence reveals that Rolia

Soren (PW 4) accompanied by PW 23 soon after the incident

proceeded to inform the same to the police and finding the

police to have already left for Manoharpur, returned back and

finally on the oral report of PW 4, the Officer In-charge of

Anandapur P.S. (PW 52) prepared FIR (Ext. 1/1) and

registered a case under Sections 147, 148, 435, 436 and 302

read with 149 IPC against Dara Singh (A 1) and five others.

The prosecution has also relied on a letter (Ext.2 after it was

translated to English marked as Ext. 49) said to have been

addressed by Mahendra Hembram (A3) to Kapura Tudu (PW 9)

which, according to the prosecution, contains his admission of

involvement in the incident.

37) An excerpt from the letter of Mahendra Hembram may be

translated into English as under:-

65

"You may be knowing the Manoharpur incident. No one

ever thought that such a thing will happen in the

village. I had not told any of my family members that

such a work will be done. Dara Singh stayed in our

house and did the work. I also did the work as I had

quarrel with the `Jisu'. I had not disclosed the identity

of Dara Singh even to my mother. The conspiracy to kill

Manoharpur `Jisu' was hatched at HOROHND for which

I took leave during training period and stayed in our

house with Dara Singh for five days and went to the

forest thereafter. The villagers know that I have done

this work as I have got cordial relationship with Dara

Singh."

This is a confessional statement of accused Mahendra

Hembram (A3) inculpating himself and Dara Singh (A1).

38) Accused Mahendra Hembram, in his letter dated

10.02.1999 (Ex. 2) addressed to his sister-in-law, Kapura

Tudu (PW9), confessed that he along with Dara Singh burnt

the `Jisu' (Christian Missionary). All the ocular witnesses have

testified that after setting fire to vehicles and burning Graham

Staines and his two sons alive, the miscreants raised slogans

"Jai Bajrang Bali" and "Dara Singh Zindabad".

39) Joseph Marandi, PW23 has testified that accused

Mahendra Hembram amongst others set fire to the vehicles.

Mahendra Hembram, in his statement recorded under Section

313 Cr.P.C., on 04.02.2002 has stated that he may be the

66

short statured person. Accused Mahendra Hembram in his

letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law,

Kapura Tudu (PW9) had confessed to have burnt the Christian

missionary along with Dara Singh. In the course of trial, he

filed petitions on 01.02.2002 and 02.02.2002 pleading guilty

and confessing to have set fire to the vehicles. In his

statement recorded under Section 313 Cr.P.C. on 04.02.2002,

he has admitted to have set fire to the vehicles and in his

statement recorded under Section 313 Cr.P.C. on 24.03.2003

has admitted to have filed petitions pleading guilty and to have

stated in his earlier examination under Section 313 Cr.P.C.

that he had set fire to the vehicles. There is no impediment in

relying on a portion of the statement of the accused and

finding him guilty in consideration of the other evidence

against him as laid by the prosecution.

40) It is clear that the letters marked as (Ex. 213) were written

by Mahendra Hembram though denied by him, contents of the

said two letters amount to confession, or in any event

admission of important incriminating materials. He had been

identified before the trial Court by Joseph Marandi (PW23) as

67

a participant in the crime. As rightly observed by the High

Court, contents of these two letters lend support to the

evidence in identification before the trial Court for the first

time as narrated by PW23. In this way, his identification for

the first time in the trial Court is an exceptional case and even

in the absence of further corroboration by way of previously

held TIP, his involvement in the crime is amply corroborated

by the above said letters written by him.

41) Learned Addl. Solicitor General has pointed out that

insofar as Mahendra Hembram is concerned, three types of

evidence are available against him: a) Confession; b) testimony

of eye-witnesses/identification in court/PW 23 Joseph

Marandi; and c) absconding of the accused. Learned Addl.

Solicitor General while advancing his argument besides

referring to the evidence of PW 23 laid more emphasis on the

statement of the appellant. Though an objection was raised as

to the manner in which the trial Judge questioned A3 with

reference to contents of his letters dated 01.02. 2002 and

02.02.2002, it is relevant to point out that when the person

facing trial insisted to look into the contents of his letters, the

68

presiding officer concerned has to meet his requirement

subject to the procedure established. The learned trial Judge

accepted the entire contents of the admission made by A3 and

affording reasonable opportunity and by following the

appropriate procedure coupled with the corroborative evidence

of PW 23, upheld his involvement and participation in the

crime along with A1 which resulted in rioting, arson and

murder of three persons. Though learned senior counsel

appearing for A3 was critical on relying upon the letter Ex. 49

said to have been written by A3 to his Sister-in-law PW 9, it

shows that A3 confessed to have participated in the incident

along with A1. It is seen that the entire contents of letter were

used by the trial Judge which was rightly accepted by the High

Court. The other circumstance urged by the prosecution was

that A3 absconded soon after the incident and avoided arrest

and this abscondence being a conduct under Section 8 of the

Indian Evidence Act, 1872 should be taken into consideration

along with other evidence to prove his guilt. The fact remains

that he was not available for quite sometime till he was

arrested which fact has not been disputed by the defence

69

counsel. We are satisfied that before accepting the contents of

the two letters and the evidence of PW 23, the trial Judge

afforded him required opportunity and followed the procedure

which was rightly accepted by the High Court.

Additional factors - Dara Singh (A1)

42) In addition to what we have highlighted and elicited from

the materials placed, it is relevant to point out that all the 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

70

to the same, all the witnesses mentioned about the blowing of

whistle by Dara Singh.

43) Though the trial Court awarded death sentence for Dara

Singh, the High Court after considering entire materials and

finding that it is not a rarest of rare case, commuted the death

sentence into life imprisonment. The principles with regard to

awarding punishment of death have been well settled by

judgments of this Court in Bachan Singh vs. State of

Punjab AIR 1980 SC 898, Machhi Singh vs. State of Punjab

(1983) 3 SCC 470, Kehar Singh vs. State (Delhi

Administration) (1988) 3 SCC 609. It is clear from the above

decisions that on conviction under Section 302 IPC, the

normal rule is to award punishment of life imprisonment and

the punishment of death should be resorted to only for the

rarest of rare cases. Whether a case falls within the rarest of

rare case or not, has to be examined with reference to the facts

and circumstances of each case and the Court has to take

note of the aggravating as well as mitigating circumstances

and conclude whether there was something uncommon about

the crime which renders the sentence of imprisonment for life

71

inadequate and calls for death sentence. In the case on hand,

though Graham Staines and his two minor sons were burnt to

death while they were sleeping inside a station wagon at

Manoharpur, the intention was to teach a lesson to Graham

Staines about his religious activities, namely, converting poor

tribals to Christianity. All these aspects have been correctly

appreciated by the High Court and modified the sentence of

death into life imprisonment with which we concur.

44) Though an argument was advanced that only after the

intervention of PW 55, I.O. from CBI, several persons made a

confessional statement by applying strong arm tactics that

were used by the investigating agency, the entire case of the

prosecution has to be rejected, we are unable to accept the

same for the reasons stated by the trial Court and the High

Court. We have ourselves in the earlier paras adverted to the

fact that some of the witnesses did not mention anything

about the incident to the local police or the District Magistrate

or the higher level police officers who were camping from the

next day of the incident. However, regarding the fresh steps

taken by the Officer of the CBI, particularly, the efforts made

72

by PW 55, though certain deficiencies are there in the

investigation, the same cannot be under estimated. Likewise,

it was pointed out that young children were being coerced into

being witness to the occurrence whereas the elder family

members were never joined as witness by the prosecuting

agency. It is true that the prosecution could have examined

elders and avoided persons like PW 5 who was a minor on the

date of the incident. We have already discussed about the

veracity of witnesses 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 vs.

Nandu Vishwakarma & Ors., (2009) 14 SCC 501 (Para 23),

73

Sambhaji Hindurao Deshmukh & Ors. Vs. State of

Maharashtra, (2008) 11 SCC 186 (Para 13), Rahgunath vs.

State of Haryana, (2003) 1 SCC 398 (Para 33) and

Allarakha K. Mansuri vs. 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 convict them. We entirely agree with

the reasoning and conclusion of the High Court insofar as the

order relating to acquittal of certain accused persons.

Conclusion

46) In a country like ours where discrimination on the

ground of caste or religion is a taboo, taking lives of persons

belonging to another caste or religion is bound to have a

dangerous and reactive effect on the society at large. It strikes

at the very root of the orderly society which the founding

fathers of our Constitution dreamt of. Our concept of

secularism is that the State will have no religion. The State

74

shall treat all religions and religious groups equally and with

equal respect without in any manner interfering with their

individual right of religion, faith and worship.

47) The then President of India, Shri K R. Narayanan once

said in his address that "Indian unity was based on a tradition

of tolerance, which is at once a pragmatic concept for living

together and a philosophical concept of finding truth and

goodness in every religion". We also conclude with the hope

that Mahatma Gandhi's vision of religion playing a positive

role in bringing India's numerous religion and communities

into an integrated prosperous nation be realised by way of

equal respect for all religions. It is undisputed that there is no

justification for interfering in someone's belief by way of `use of

force', provocation, conversion, incitement or upon a flawed

premise that one religion is better than the other.

48) The analysis of entire materials clearly shows that the

High Court is right in arriving at its conclusion. In the case on

hand, there is no material to prove conspiracy charge against

any of the accused. However, as pointed out by the High

Court which we also adverted to in the earlier paras even in

75

the midst of uncertainties, the witnesses have specified the

role of (A1) and (A3) which we agree with and confirm the

same and we also maintain the conviction of the appellant

Dara Singh (A1), Mahendra Hembram (A3) and the sentence of

life imprisonment imposed on them. In the same way, in the

absence of acceptable materials and in view of the various

infirmities in the prosecution case as pointed out by the High

Court, we confirm the order of acquittal of others who are all

poor tribals.

76

49) In the result, Criminal Appeal No. 1366 of 2005 filed by

Rabindra Kumar Pal @ Dara Singh, Criminal Appeal No. 1259

of 2007 filed by Mahendra Hembram and Criminal Appeal

Nos. 1357-1365 filed by CBI are dismissed.

..........................................J.

(P. SATHASIVAM)

...........................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

JANUARY 21, 2011

77

ABSENCE OF IDENTIFICATION - NO CONVICTION

                                              REPORTABLE
                  IN THE SUPREME COURT OF INDIA
                 CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.1283 OF 2010



Sajjan Sharma                                                  ... Appellant

                                    Versus

State of Bihar                                                 ... Respondent



                              JUDGMENT

AFTAB ALAM, J.


1.    The appellant Sajjan Sharma stands convicted under section 302 of

the Penal Code and sentenced to rigorous imprisonment for life.

2.    The prosecution case that led to the conviction and sentence of the

appellant is based on the Fard-e-beyan (Ext. 3) of one Mukesh Kumar

(PW4) recorded by the officer-in-charge of Bihpur Police Station on

November 24, 1994, at 4.00 p.m. at David Door Bahiar of village Marba (in

local dialect `bahiar' is the word for the agricultural lands at a distance from

the dwelling part of the village). In his statement before the police officer,

Mukesh Kumar stated that on that day at about 10.00 a.m., he along with his

uncles Narain Kunwar and Bauku Kunwar had gone to the corn fields in
                                    2


David Door Bahiar carrying a licensed .315 rifle and some rounds. There,

they supervised the scattering of fertilizer over the land by the farm

labourers. The work was over by 2.30 p.m. and then the labourers left. In the

meanwhile, one Gunanand Sharma/Sanghai, (PW3) s/o Ram Avtar Sharma

of Amarpur Village came there to meet Narain Kunwar. He (the informant)

and his uncle Bauku Kunwar were chatting, sitting at the other corner of the

field. At that time the accused, Bodhan Rai @ Prabhu Narain Rai s/o Basu

Rai came there carrying a rifle which is called a semi-rifle. He was wearing

around his neck a belt full of cartridges. Accompanying him were Satto

Sharma s/o Lalho Sharma who was carrying a .315 rifle, Shambhu Sharma

s/o Satto Sharma carrying a .315 rifle, Sukesh Kunwar s/o Naney Kunwar

holding a `3 nought' rifle, Paro Kunwar s/o Naney Kunwar holding a `3

nought' rifle and three unknown persons who were also carrying rifles. All

the named accused were from the same village as the informant.

3.    All the accused went up to his uncle, who on seeing them asked

Gunanand to call the informant and his other uncle Bauku. As Gunanand

came towards them, Bodhan Rai snatched the rifle from the hands of his

uncle and pushed him towards south. Watching this, the informant, Bauku

Kunwar and Gunanand started shouting as to where they were taking his

uncle. Suddenly, Bodhan Rai fired a shot from his rifle in the air and warned
                                     3


them to go back, whereupon they got frightened and slowly fell back. Then,

he took his uncle to the field of Laxmi Mishra that was vacant. All the while

they were shouting and raising alarm to save their uncle. Then, Bodhan Rai,

calling his uncle as "the bastard" exclaimed that he should be killed there

only, lest others would come on alarm. Uttering those words, Bodhan Rai

fired a shot hitting his uncle in the abdomen. His uncle fell down twisting on

the ground. Then, Bodhan Rai again said that they would torture the bastard

to death. On this, Shambhu Sharma and Sukesh Sharma also fired shots at

him. His uncle was writhing in pain when Bodhan Rai put the barrel of the

rifle near the ears of his uncle and fired another shot and said to his fellow

accused that they should go as he was finished.

4.    The informant further said that they were watching from a little

distance when Bodhan Rai turned towards them and said that if they gave

evidence, they would also meet the same fate. The informant also said that

his uncle was killed due to enmity from before, and earlier also Bodhan Rai

had tried to kill his uncle. The informant further said that after the accused

persons had left, he went near his uncle and saw that his uncle was lying

dead with the face downward on the ground. On the report of the gun shots

and their shouting, several persons from the vicinity gathered there. Bodhan
                                     4


Rai also carried away the licensed rifle of his uncle. He did not remember

the number of his rifle.

5.    The informant concluded by saying that his uncle was killed by

Bodhan Rai @ Prabhu Narain Rai s/o Basu Rai, Satto Sharma s/o Lalho Rai,

Shambhu Sharma s/o Satto Sharma, Sukesh Kunwar s/o Naney Kunwar,

Paro Kunwar s/o Naney Kunwar, and other unknown persons, colluding

together, due to old enmity, who also snatched away his licensed rifle

no.AB0202.

6.    He finally said that what was recorded by the police officer was his

statement; he had read and understood it and finding it true put his signature

in the presence of witnesses. The Fard-e-beyan was signed besides the

informant Mukesh Kumar, by Bauku Kunwar and Gunanand Sanghai as

witnesses.

7.    The Fard-e-beyan was incorporated in the formal FIR (Ext. 5),

instituted at 9.00 p.m. on the same date, giving rise to Bihpur P.S. case

no.224/94 dated November 24, 1994 under sections 302, 379, 34 of the

Penal Code and under section 27 of the Arms Act.

8.    The first thing that needs to be noted in connection with the Fard-e-

beyan is that the appellant Sajjan Sharma is not named there as one of the

accused. The Fard-e-beyan was recorded soon after the occurrence when
                                     5


there was hardly any time for deliberation and for false implication of

anyone who was actually not among the accused. It gave the names of five

accused, apart from the three persons who were unknown. All the five

named accused were from the same village as the informant and his uncle

Bauku Kunwar. Among the five accused the Fard-e-beyan gave the names of

Satto Sharma, the father of the appellant and his brother Shambhu Sharma,

the other son of Satto Sharma. More importantly, Bauku Kunwar, who later

named the appellant in his deposition before the court was not only present

at the time of recording of the Fard-e-beyan but had actually signed it as one

of two witnesses.

9.    The police after investigation submitted chargesheet against seven

accused persons of whom five were named in the Fard-e-beyan/FIR and two

namely, Sajjan Sharma (the appellant) and Mantu Chaudhri were not named

in the Fard-e-beyan/FIR. In the charge-sheet three accused namely, Sukesh

Kumar, Paro Kunwar and Mantu Chaudhri were shown as absconders and

the rest were in custody. Later Paro Kunwar was apprehended and he was

also put on trial along with the accused who were in custody. The ACJM,

Naugachia separated the case of the two accused who remained absconding

by order dated August 16, 1996, and the other five accused were put on trial.

Later on Satto Sharma, the father of the appellant and the accused Shambhu
                                      6


Sharma died and in so far as he was concerned, the proceedings abated. The

trial continued in respect of the four accused, including the appellant.

10.   On the basis of the evidences adduced before it, the trial court (First

Additional District and Sessions Judge, Naugachia) found and held that the

prosecution was able to fully establish the guilt of the accused and by

judgment and order dated August 2, 2001, convicted all the four accused

under section 302 of the Penal Code and section 27 of the Arms Act and

sentenced them to rigorous imprisonment for life under section 302 of the

Penal Code and rigorous imprisonment for 1 year under section 27 of the

Arms Act. Bodhan Rai was also convicted under section 379 of the Penal

Code and sentenced to rigorous imprisonment for 3 years. All the sentences

of the accused were directed to run concurrently.

11.   Bodhan Rai died after the judgment of the trial court. The rest of the

three accused, including the appellant preferred separate appeals before the

Patna High Court (being Criminal Appeal Nos. 391, 394 and 427 of 2001).

All the three appeals were consolidated and heard together and were

dismissed by judgment and order dated September 10, 2007. Against the

judgment of the High Court, the two brothers Shambhu Sharma and Sajjan

Sharma (the present appellant) jointly filed the SLP. (It is reported the third

accused Paro Kunwar did not file any appeal against the judgment of the
                                     7


High Court). The SLP insofar as Shambhu Sharma is concerned was

dismissed but the appellant was granted leave to appeal. That is how the

appellant alone stands in appeal before this Court from amongst the several

accused who were charge-sheeted and who later faced trial on the charge of

killing Narain Kunwar.

12.   Before adverting to the merits of the appellant's case, we need to take

a look at the charge framed against the accused. Curiously, the trial court

charged all the five accused (before Satto Sharma had died) only under

section 302 of the Penal Code, without the aid of either section 149 or

section 34 of the Penal Code. Equally inexplicably, the trial court did not

charge the accused under section 148 of the Penal Code. Apart from section

302 of the Penal Code all the accused were charged under section 27 of the

Arms Act; accused Bodhan Rai was additionally charged under section 379

of the Penal Code for taking away the rifle of the deceased.

13.   Taking advantage of the highly flawed charge framed by the trial

court, Mr. Nagendra Rai, Senior Advocate, appearing for the appellant

submitted that the appellant's conviction cannot be legally sustained under

section 302 of the Penal Code alone. Mr. Rai further submitted that both

PWs 4 and 6, the two prosecution witnesses who in their deposition before

the court mentioned the name of the appellant did not attribute to him any
                                      8


overt act at all but simply named him among the accused. Hence, even if the

prosecution evidence were to be accepted without any question the appellant

could not be held guilty of committing murder without imputing to him a

shared object or intention to commit the offence with the other accused.

14.   Here we may also take a look at the examination of the appellant by

the court under section 313 of the Code of Criminal Procedure. This

examination too is highly unsatisfactory and sketchy. The first question by

the court to the appellant (and for that matter to all the accused) was:

      "There is evidence against you that on 24.11.94 at Davidor
      Bahiyar in concert with the other accused (you) killed Narain
      Kunwar by firing shot at him."

The appellant replied:

      "It is wrong (to say that)"

Whereupon the court put the second and the last question:

      "In defence you wish to say anything?"

The appellant replied:

      "I am innocent."

15.   We are constrained to say that this is not an isolated case but it is

almost a stereotype. It is our experience that in criminal trials in Bihar no

proper attention is paid to the framing of charges and the examination of the

accused under section 313 of the Code of Criminal Procedure, the two very
                                     9


important stages in a criminal trial. The framing of the charge and the

examination of the accused are mostly done in the most unmindful and

mechanical manner. We wish that the Patna High Court should take note of

the neglectful way in which some of the Courts in the State appear to be

conducting trials of serious offences and take appropriate corrective steps.

16.   Having regard to the charge that was framed against the appellant and

his examination by the court under section 313 of the Code of Criminal

Procedure the point raised by Mr. Rai cannot be said to be entirely without

substance but we see no reason to go into that technical aspect of the matter

since we find that the appellant has a good case on merit as well.

17.   The prosecution examined eight witnesses in support of its case. PWs

1 and 2 (Bihari Mandal and Sadanand Kumar) stated that they did not know

anything about the occurrence and they had not given any statement before

the police. They were declared hostile. PW3 (Gunanand Sharma) who was

the brother-in-law of the deceased, Narain Kunwar and who was not only

present at the time of recording of the Fard-e-beyan but had also signed it as

a witness along with Bauku Kunwar also turned hostile and said that he did

not know who killed Narain Kunwar. In cross-examination he also said that

his brother-in-law had enmity with a large number of people. PW4, Mukesh

Kumar, the informant and PW6, Bauku Kunwar are the two eye witnesses.
                                    10


PW5, Binodanand Kumar did not claim to have witnessed the actual

occurrence but said that on the date of occurrence, at about 2:30 in the

afternoon he heard the report of the gun shots and saw some of the accused

fleeing away with .315 rifles. PW7 is the doctor who conducted post mortem

on the body of Narain Kunwar. PW8, Ranjit Kumar Mishra is the

investigating officer of the case.

18.   In view of the evidences of PWs 4, 6 and 5 coupled with the medical

evidence there is no room for doubt that Narain Kunwar was killed in the

manner as stated by the prosecution. But the question is whether or not the

appellant was one of the accused taking part in the commission of the

offence.

19.   PW4, Mukesh Kumar in his deposition before the court stated what he

had said in the Fard-e-beyan. He did not name the appellant as one of the

accused. The name of the appellant figures in the deposition of PW6, Bauku

Kunwar. PW6 named the appellant and Mantu Chaudhri (absconding) and

Munna Sharma (not charge-sheeted), in addition to the five accused named

in the FIR. He did not assign them any particular weapon but said that they

were carrying different arms and weapons. He then stated that all the

accused surrounded Narain but beyond this he did not assign any role to the

appellant. PW5, Binodanand Kumar stated that on the date of the occurrence
                                    11


he was scattering fertilizer in his banana field when all of a sudden on

hearing the sound of firing and noise, he looked around and saw the accused

persons, including the appellant coming from the Gohal. He saw a rifle in

the hands of Shambhu Sharma and 2 rifles in the hands of Bodhan Rai who

passed him close by. The rest of the accused were carrying some small and

big `3 noughts'. In cross examination he stated that he had told Mukesh

(PW4) that he had seen the accused persons running away. But he had not

said the names of all the accused persons to Mukesh. He further stated that

the Inspector recorded his statement about 10-20 days after the occurrence.

20.   It is noted above that the appellant was not named in the FIR. The

appellant lived in the same village as the informant and PW6, Bauku

Kunwar. The appellant's father and brother were seen as members of the

unlawful assembly and were duly named in the Fard-e-beyan/FIR. The

weapons being carried by them (.315 rifle) were also identified and

expressly mentioned in the Fard-e-beyan. In regard to Shambhu Sharma, it

was stated that after the first shot fired by Bodhan Rai, he and Sukesh

Sharma also fired at the victim. In those circumstances, had the appellant

been actually present at the place of occurrence, there is no reason why his

name along with his father and brother, should not have figured in the FIR.

In case the informant missed him, PW6 Bauku Sharma would have given his
                                    12


name who was undeniably present at the time of recording of the Fard-e-

beyan and who had signed it as one of the witnesses.

21.   PW6 in his deposition before the court made a statement suggesting

that his statement was recorded by the police on the date of the occurrence

itself after recording the statement of Mukesh but Mr. Nagendra Rai

submitted that from the records it appeared that his statement was taken by

the police on the day following the date of occurrence.

22.   In this country, even while correctly naming the accused in cases of

serious offences, it is endemic that some other innocent persons or even such

of the members of the family of the accused who might not be present at the

time of commission of offence are also roped in and falsely implicated. Satto

Sharma, named as accused no.5 in the FIR, had two sons- Shambhu Sharma

and Sajjan Sharma, the present appellant. Satto Sharma himself and Sambhu

Sharma were duly named as the accused. Had the appellant been identified

at the time of commission of the offence, his name would have surely

figured in the FIR. It appears that though he was not identified as one of the

accused at the time of the commission of the offence, it was later realized

that one of the sons of Satto Sharma was left out and he too was later named

among the accused.
                                    13


23.   For the reasons as discussed above, we are unable to accept the

evidence of PW6 insofar as he names the appellant also as one of the

members of the unlawful assembly.



24.   This leaves PW5 only who claims to have seen the appellant among

the accused while they were going away after the commission of the offence.

But his statement was admittedly recorded by the police after ten or twenty

days of the occurrence and till then he had not disclosed the name of the

appellant as one of the accused to Mukesh or to any one else. In the facts and

circumstances as discussed above, it becomes difficult even to accept the

testimony of PW5, Binodanand Kumar insofar as the appellant is concerned.



25.   In this state of evidence, it will not be wholly safe to maintain the

conviction of the appellant under section 302 of the Penal Code and

applying the rule of caution, he must be given the benefit of doubt. We,

accordingly, allow the appeal and set aside the conviction of the appellant

and the sentence given to him. The appellant is directed to be released

forthwith unless he is wanted in some other criminal case.
                                   14




26.   Let a copy of this order be placed before the Hon'ble Judge of the

Patna High Court, in-charge of the State's Judicial Academy.




                                                ....................................J.
                                              (AFTAB ALAM)



                                                 ....................................J.
                                               (R.M. LODHA)


New Delhi
January 7, 2011.

ABSENCE OF CHARGE IS NOT FATAL FOR CONVICTION UNDER SEC.306 I.P.C

                                                REPORTABLE

          IN THE SUPREME COURT OF INDIA
         CRIMINAL APPELLATE JURISDICTION

         CRIMINAL APPEAL NO. 590 OF 2005


Narwinder Singh                             ... Appellant

VERSUS

State of Punjab                             ...Respondent



                       JUDGMENT

SURINDER SINGH NIJJAR, J.

    1.   This     appeal   has   been   filed    against   the

         judgment and order dated 6th October, 2004 of

         the    Punjab and Haryana         High    Court at

         Chandigarh in Criminal Appeal No. 406-SB of

         1992 wherein the appellant has been convicted

         under Section 306 Indian Penal Code (`IPC' for

         short) and sentenced to rigorous imprisonment

         for two years and to pay a fine of Rs.1,000/-

         and in default of payment thereof to undergo

         further rigorous imprisonment for one month.


                                                                 1
    2.    We may briefly notice the facts.

Sukhjit Kaur, alias Rani was married to Narwinder Singh

of Village Mehdipur on 30th September, 1984.         A male

child had first been born to the couple and at the time of

the incident, the wife was pregnant a second time.

According to the in-laws of the appellant, they had given

sufficient dowry at the marriage of their daughter to the

appellant. It appears that the appellant and his parents

Daljit Singh and Joginder Kaur remained dissatisfied.

About two months after the marriage, Sukhjit Kaur

informed her mother Gursharan Kaur that her in-laws

were asking her to bring valuable articles such as a

scooter from her parents.         It is also the case of the

prosecution that an additional demand of Rs.5,000/- was

made by Narwinder Singh, in the year 1986, which

amount too was paid by his mother-in-law Gursharan

Kaur. Unfortunately, on 25th May, 1987, Bhai Davinder

Singh,    father   of   Sukhjit   Kaur   was   murdered   by

extremists. After the death of Bhai Davinder Singh, there


                                                               2
was sea-change in the attitude of the appellant and her

parents, and they started maltreating her.      About six

months prior to the fatal incident, there had been a

quarrel between the husband and wife, which was settled

with the intervention of several relatives including Kulbir

Singh and Onkar Singh, PW-5. About ten days prior to

the incident, Sukhjit Kaur went to Onkar Singh's house

in Village Nabipur and informed him that the accused

were demanding Rs.50,000/-. They were saying that her

late father had left enough money for the family and that

she should get her share. Onkar Singh told her that he

would inform Gursharan Kaur, who was then living in

England about the demand and seek instructions from

her.   Unfortunately, on 30th May, 1988, Onkar Singh

came to know about the death of his niece Sukhjit Kaur

(hereinafter referred to as `the deceased'). He alongwith

Gurjit Kaur, sister of the deceased, Hanwant Singh,

Darshan Singh and Mohan Singh went to village

Mehdipur and saw the dead body of Sukhjit Kaur alias

Rani lying in the house. Blood was oozing from her nose.


                                                              3
Onkar Singh, thereafter, lodged a FIR naming the

accused as having been responsible for her death.

Initially, a case under Section 306 IPC was registered

against the accused but, a charge under Section 304-B of

the IPC was ultimately framed by the Court.



3.   In support of its case, the prosecution relied inter-

alia on the evidence of Kulbir Singh (PW-2) and Onkar

Singh (PW-5), both uncles of the deceased, Gursharan

Kaur (PW-6) the mother and Gurjit Kaur (PW-7).        The

sister of Sukhjit Kaur stated that the demands made by

the accused had been satisfied off and on and that the

behaviour of the accused had compelled Sukhjit Kaur to

commit suicide.   The prosecution also relied upon the

evidence of Dr. H.S. Bajwa (PW-3), who on the basis of

the report of the Forensic Science Laboratory opined that

she had died of Organo Phosphorus poisoning. A large

number of documents including some letters allegedly

written by the deceased to her family members and by

them to her were also produced in evidence.


                                                             4
4.   The prosecution case was then put to the accused

and their statements recorded under Section 313 of

Cr.P.C. They denied the allegations levelled against them

and pleaded that as a matter of fact Sukhjit Kaur had

fallen ill as she was pregnant and depressed after the

murder of her father (to whom she had been deeply

attached) and that she had been taken to Oberoi Hospital

by   her    father-in-law    on   seeing    her    condition

deteriorating, and that despite all efforts on the part of

the accused to save her, she had died. The accused also

produced three witnesses in defence, namely Hardev

Singh (DW-1), Jarnail Singh (DW-2) and Pritam Singh

(DW-3), as also certain letters written inter-se the parties.



5.   The trial court held that from the evidence of Kulbir

Singh, Onkar Singh, Gursharan Kaur and Gurjit Kaur

(PWs) and the letter Ex.P.1, it appeared that demands for

dowry had been made by the accused from Sukhjit Kaur

time and again and that she had been harassed and thus


                                                                5
compelled to commit suicide.       It further held that the

ingredients of Section 304-B IPC were satisfied on the

presumptions      raised   under   Section   113-B    of    the

Evidence Act with regard to dowry deaths and that the

letters Exs. PA, PB, PC, PD and PE did not in any way

show that the relation between the parties had been

cordial.      The trial court accordingly convicted the

accused for an offence punishable under Section 304-B

IPC,    and    sentenced    them    to   undergo     rigorous

imprisonment           for seven years and to fine and in

default of payment of fine to undergo further rigorous

imprisonment for a specified period.



6.     Aggrieved, against the aforesaid conviction and

sentence, the appellant and his parents filed an appeal

before the Punjab and Haryana High Court.                  Upon

reconsideration of the entire evidence, the High Court

concluded that the deceased had not committed suicide

on account of demands for dowry but due to harassment

caused by the husband, in particular. The appeal was,


                                                                  6
therefore, partly allowed. The High Court acquitted the

parents of the appellant. However, the conviction of the

appellant was converted from one under Section 304-B

IPC to Section 306 IPC.    He was sentenced to undergo

rigorous imprisonment for two years and to pay a fine of

Rs.1,000/- and in default of payment, he has to undergo

further rigorous imprisonment for one month.             The

aforesaid judgment is challenged in the present appeal.



7.   Mr.   Vikram    Mahajan,     learned   senior   counsel

appearing for the appellant submitted that there is no

distinction between the case of the appellant and that of

his parents, who have been acquitted. The High Court

having acquitted the parents, the appellant also could

not have been convicted. He further submitted that this

was a plain and simple case of suicide due to the mental

state of the deceased. He submits that since the murder

of her father by extremists, the deceased had been under

acute   depression   and   she,   therefore,   had   suicidal

tendencies.   Learned senior counsel further submitted


                                                                7
that there is no evidence on the record to show that the

victim had died an unnatural death.         Lastly, it is

submitted that the High Court committed a grave error in

convicting the appellant under Section 306 IPC.      It is

submitted by Mr. Mahajan that the nature of offence

under Section 304-B IPC is distinct and different from

the offence under Section 306 IPC. The basic constituent

of an offence under Section 304-B IPC is homicidal death

(dowry death) and those of Section 306 IPC is suicidal

death and abetment thereof. Furthermore, according to

the learned senior counsel, the nature of evidence

required under both the categories of offences are totally

different.   The appellant was never charged under

Section 306 IPC, nor is there any evidence on the record

to sustain the conviction under Section 306 IPC.



8.   Mr. Kuldip Singh, learned counsel, appearing for

the State of Punjab submits that the appellant is in fact

fortunate being convicted only under Section 306 IPC.

There is overwhelming evidence to prove that the


                                                             8
appellant and his parents had been harassing the

deceased to bring more dowry. He submits that there is

evidence that the wife had been subjected to harassment

on account of dowry immediately after the marriage. The

death occurred within seven years of marriage, therefore,

by virtue of Section 113-B of the Evidence Act, the trial

court had rightly presumed that the appellant and his

parents    had       committed    the   offence    under

Section 304-B IPC.



9.   We have considered the submissions made by the

learned counsel. The High Court, upon close scrutiny of

the evidence, concluded that there was evidence of a

quarrel between the husband and wife about six months

prior to the occurrence, which had been settled with the

intervention of the eldest.   There were complaints that

the deceased did not know how to do any household

work. The in-laws had also complained that she was not

well mannered. Their ill-treatment of the wife escalated

after the murder of her father by extremists. It was at


                                                            9
that stage the husband had started demanding that the

deceased should claim one of the two houses left behind

by her father in Village Nabipur. About ten months prior

to her death, she was actually sent by the appellants to

demand possession of the house. The appellant and his

parents were suspecting that the sister of the deceased,

Gurjit Kaur had taken everything after the death of the

father of the deceased.      The appellant and his parents

were insisting that the house be legally conveyed in the

name of the deceased. However, mother of the deceased

left for England after the first death anniversary of her

husband in May, 1988. The High Court, on examination

of the entire evidence, concluded that the deceased had

not committed suicide on account of demands for dowry

but due to harassment caused by her husband, in

particular.   The deceased had committed suicide by

drinking Organo Phosphorus poison.           In view of the

findings   recorded,   the    High   Court   converted   the

conviction of the appellant from one under Section 304-B

IPC to one under Section 306 IPC.


                                                               10
10.   We do not find much substance in the submission

of Mr. Mahajan that the High Court could not have

convicted the appellant under Section 306 IPC as the

charge had been framed under Section 304-B IPC. On

scrutiny of the entire evidence, the High Court has come

to the conclusion that the deceased had not committed

suicide on account of demands for dowry but due to

harassment caused by her husband, in particular. The

harassment by the appellant had compounded the acute

depression from which the deceased was suffering after

the murder of her father. There was no evidence of any

demand for dowry soon before the death, and there was

no demand whatsoever that the house in question should

be    transferred   to   either   of   the   accused.   Under

Section 304-B IPC, the cruelty or harassment by her

husband or any relative of her husband "for, or in

connection with, any demand for dowry" is a prelude to

the suicidal death of the wife.        Such suicidal death is

defined as `dowry death'. The High Court has recorded a


                                                                11
firm finding that the harassment was not for or in

connection with any demands for dowry.                 But, at the

same time, the High Court has concluded that the wife

committed        suicide    due     to    the   harassment   of   the

appellant, in particular. In such circumstances, the High

Court was, therefore, fully justified in convicting the

appellant under Section 306 IPC.



11.      We    also    do   not   find    any    substance   in   the

submission of Mr. Mahajan that the appellant could not

have been convicted under Section 306 IPC in the

absence of a charge being framed against him under the

aforesaid section. The learned counsel had relied upon

the judgments of this court in the case of Sangaraboina

Sreenu Vs. State of A.P.1 and Shamnsaheb M. Multtani

Vs. State of Karnataka2. We are of the opinion that the

aforesaid       judgments     are    of    no   assistance   to   the

appellant, in the facts and circumstances of the present

case.      We may, however, notice the observations made
1
    (1997) 5 SCC 348
2
    (2001) 2 SCC 577


                                                                        12
therein. In the case of Sangaraboina Sreenu (supra), it

was observed as follows:

"This appeal must succeed for the simple reason that having
acquitted the appellant of the charge under Section 302 IPC --
which was the only charge framed against him -- the High Court
could not have convicted him of the offence under Section 306 IPC.
It is true that Section 222 CrPC entitles a court to convict a person
of an offence which is minor in comparison to the one for which he
is tried but Section 306 IPC cannot be said to be a minor offence in
relation to an offence under Section 302 IPC within the meaning of
Section 222 CrPC for the two offences are of distinct and different
categories. While the basic constituent of an offence under Section
302 IPC is homicidal death, those of Section 306 IPC are suicidal
death and abetment thereof."

In the present case, both the trial court and the High

Court have held that the deceased had committed

suicide.      Therefore, the nature of the offence under

Sections 304-B and 306 IPC are not distinct and different

categories.



Again in the case of Shamnsaheb M. Multtani (supra),

this court observed:

"18. So when a person is charged with an offence under Sections
302 and 498-A IPC on the allegation that he caused the death of a
bride after subjecting her to harassment with a demand for dowry,
within a period of 7 years of marriage, a situation may arise, as in
this case, that the offence of murder is not established as against
the accused. Nonetheless, all other ingredients necessary for the
offence under Section 304-B IPC would stand established. Can the
accused be convicted in such a case for the offence under Section
304-B IPC without the said offence forming part of the charge?


                                                                        13
19. A two-Judge Bench of this Court (K. Jayachandra Reddy and
G.N. Ray, JJ.) has held in Lakhjit Singh v. State of Punjab1 that if a
prosecution failed to establish the offence under Section 302 IPC,
which alone was included in the charge, but if the offence under
Section 306 IPC was made out in the evidence it is permissible for
the court to convict the accused of the latter offence.

20. But without reference to the above decision, another two-
Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar,
JJ.) has held in Sangaraboina Sreenu v. State of A.P. that it is
impermissible to do so. The rationale advanced by the Bench for
the above position is this:(SCC p.348, para 2)
"It is true that Section 222 CrPC entitles a court to convict a
person of an offence which is minor in comparison to the one for
which he is tried but Section 306 IPC cannot be said to be a minor
offence in relation to an offence under Section 302 IPC within the
meaning of Section 222 CrPC for the two offences are of distinct
and different categories. While the basic constituent of an offence
under Section 302 IPC is homicidal death, those of Section 306
IPC are suicidal death and abetment thereof."

21. The crux of the matter is this: Would there be occasion for a
failure of justice by adopting such a course as to convict an
accused of the offence under Section 304-B IPC when all the
ingredients necessary for the said offence have come out in
evidence, although he was not charged with the said offence? In
this context a reference to Section 464(1) of the Code is apposite:
"464. (1) No finding, sentence or order by a court of competent
jurisdiction shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned thereby".
(emphasis supplied)

22. In other words, a conviction would be valid even if there is any
omission or irregularity in the charge, provided it did not occasion
a failure of justice.

23. We often hear about "failure of justice" and quite often the
submission in a criminal court is accentuated with the said
expression. Perhaps it is too pliable or facile an expression which
could be fitted in any situation of a case. The expression "failure of
justice" would appear, sometimes, as an etymological chameleon



                                                                         14
(the simile is borrowed from Lord Diplock in Town Investments Ltd.
v. Deptt. of the Environment). The criminal court, particularly the
superior court should make a close examination to ascertain
whether there was really a failure of justice or whether it is only a
camouflage."


We are of the considered opinion that the aforesaid

observations do not apply to the facts of the present case.

The High Court upon meticulous scrutiny of the entire

evidence on record rightly concluded that there was no

evidence to indicate the commission of offence under

Section 304-B IPC. It was also observed that the

deceased had committed suicide due to harassment

meted out to her by the appellant but there was no

evidence on record to suggest that such harassment or

cruelty was made in connection to any dowry demands.

Thus, cruelty or harassment sans any dowry demands

which drives the wife to commit suicide attracts the

offence of `abetment of suicide' under Section 306 IPC

and not Section 304-B IPC which defines the offence and

punishment for `dowry death'.




                                                                        15
12.    It is a settled proposition of law that mere omission

or defect in framing charge would not disable the Court

from convicting the accused for the offence which has

been found to be proved on the basis of the evidence on

record.    In such circumstances, the matter would fall

within the purview of Section 221 (1) and (2) of the

Cr.P.C. In the facts of the present case, the High Court

very    appropriately   converted     the    conviction        under

Section 304-B to one under Section 306 IPC.



13.    In our opinion, there has been no failure of justice

in the conviction of the appellant under Section 306 IPC

by the High Court, even though the specific charge had

not been framed.



14.    Therefore, we see no reason to interfere with the

judgment of the High Court. The appeal is accordingly

dismissed.

                                    ..................................J.
                                    [B.SUDERSHAN REDDY]



                                                                           16
                                  ............................
               .........J. [SURINDER SINGH NIJJAR]



NEW DELHI;
JANUARY 05, 2011.




                                                                  17

WAS THE ACCIDENT INVOLVING EXPLOSION AND FIRE IN THE PETROL TANKER CONNECTED WITH THE USE OF TANKER AS A MOTOR VEHICLE

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3744 OF 2005



New India Assurance Company Ltd. ... Appellant

Versus

Yadu Sambhaji More & Ors. ... Respondents




JUDGMENT



AFTAB ALAM, J.



1. This is an appeal under Article 133 of the Constitution of India read

with Order XV Rule 1 of the Supreme Court Rules,1966 on a certificate

granted by the Bombay High Court under Article 134A(b) of the

Constitution. The appellant is the insurance company and it seeks to assail

the judgment and order passed by the High Court in an appeal from a motor

accident claim case. In order to properly appreciate the issue in regard to

which the High Court has granted the certificate to appeal, it would be useful

to take note of some basic facts of the case.
2


2. In the early hours of October 29, 1987 a petrol tanker bearing

registration no.MXL7461, was proceeding on National Highway 4, coming

from the Pune side and going towards Bangalore. As it reached near village

Kavathe, in the district of Satara, Maharashtra, a truck, bearing registration

no.MEH4197, laden with onions, was coming from the opposite direction.

At the point where the two vehicles crossed each other, there was a pile of

rubble on the left side of the road. As the two vehicles crossed each other,

the rear right side of the petrol tanker was hit by the rear left side of the

truck. As a result of the impact, the petrol tanker was thrown off the road

and it came to rest on its left side/ cleaner's side on the kutcha ground, about

5 feet below the road. As a result of the collision and the falling down of the

petrol tanker on its side, petrol started leaking from the tanker. The tanker

driver was unable to stop the leak even though he tried to tighten the lid. The

accident took place at around 3:15am. Shortly after the accident, another

tanker, coming from the Bombay side passed by. In that tanker, apart from

the driver, there was also an officer of the Indian Oil Company. Both of

them assured the driver of the fallen down tanker that they would report the

accident at the police station and asked him to wait near the place of the

accident. Later on, yet another tanker from Sangli arrived at the spot and

then the cleaner of the ill-fated tanker and the owner of the Sangli tanker
3


together went to village Kavathe in search of a telephone to inform the

tanker owner about the accident. After they came back from the village all of

them, the driver and the cleaner of the tanker that had met with accident and

the owner, the driver and the cleaner of the tanker coming from Sangli

waited near the accident site. At daybreak, the local people started collecting

near the fallen down tanker and some of them brought cans and tried to

collect the petrol leaking out from the tanker. The driver of the tanker tried

to stop them from collecting petrol or even going near the tanker, explaining

to them that doing so would be risky and dangerous. No one, however,

listened to him and he was even manhandled. In the melee, the petrol caught

fire and there was a big explosion in which 46 persons lost their lives.

3. The heirs and legal representatives of those people who died at the

accident site filed claim petitions for compensation under section 110A of

the Motor Vehicles Act, 1939 before the MACT, Satara, against the owner

of the petrol tanker and its insurer, the present appellant. In all the cases,

claims were also made for payment of Rs.15,000/- as no fault compensation

under section 92A of the Act. The owner of the tanker and the insurer (the

respondents before the Tribunal) contested the claim petitions filed by the

applicants under section 92A of the Act and questioned the jurisdiction of

the Claims Tribunal to entertain such petitions on the ground that the fire
4


and the explosion causing the death of those who had assembled at the

accident site could not be said to be an accident arising out of the use of a

motor vehicle. The Claims Tribunal upheld the objection raised by the

insurer and the owner of the petrol tanker, and by a common order dated

December 2, 1989, dismissed all the claim petitions filed under section 92A

of the Act on the ground that the fire and the explosion could not be said to

be accident arising out of the use of the petrol tanker and hence, the

provisions of section 92A of the Act were not attracted. The Claims Tribunal

pointed out that there was a time gap of about 4 hours between the tanker

meeting with the road accident and the fire and explosion of the tanker and

there was absolutely no connection between the road accident and the fire

accident that took place about 4 hours later. The Claims Ttribunal also

observed that the local people were trying to steal petrol from the petrol

tanker and the fire and the explosion were the result of their attempt to steal

the petrol leaking out from the tanker. In other words, it was the people who

had assembled at the accident site and some of whom eventually died as a

result of it who were responsible for causing the fire and explosion accident

and the later accident had no causal connection with the earlier road accident

of the tanker. The fire and the explosion could not be said to be an accident

arising out of the use of the tanker. Against the order of the Claims Tribunal
5


passed on December 2, 1989, appeals were filed before the High Court. One

such appeal was filed by Vatschala Uttam More, whose son Deepak Uttam

More was one of the persons who died as a result of injuries caused by the

fire and explosion of the petrol tanker. A learned single judge of the High

Court allowed the appeal and by judgment dated February 5, 1990, reversed

the order passed by the Claims Tribunal. Against the decision of the single

judge, the owner of the petrol tanker and the insurance company filed a

Letters Patent Appeal which was dismissed by a division bench of the High

Court by judgment dated August 16, 1990.

4. The owner of the petrol tanker and the insurance company then

brought the matter to this court in SLP no.14822 of 1990 challenging the

judgment and order of the High Court passed on August 16, 1990. The SLP

was dismissed by this court by judgment and order passed on July 17, 1991.

In this judgment, reported as Shivaji Dayanu Patil & Anr. vs. Vatschala

Uttam More, (1991) 3 SCC 530 the Court considered at length, the questions

whether the fire and explosion of the petrol tanker in which Deepak Uttam

More lost his life could be said to have resulted from an accident arising out

of the use of a motor vehicle, namely the petrol tanker. The court answered

the question in the affirmative, that is to say, in favor of the claimant and

against the insurer.
6


5. The judgment of this Court, thus, put an end to the objections raised

by the owner and the insurer of the petrol tanker against the claim of no fault

compensation by and/or on behalf of the victims of the fire and explosion

accident.

6. But next came the turn of the main applications filed under section

110A of the Act. There were altogether 44 claim applications in which, case

no.168 of 1988 was treated as the lead case. In the main claim cases too, the

owner and the insurer of the tanker inter alia raised the same objections as

taken earlier against the claim of no fault compensation. In view of the

pleadings of the parties, the Claims Tribunal framed five issues in which

issue no.3, being relevant for the present, was as follows:

"3. Whether sustaining of injuries was (sic) arising out of use of
the petrol tanker and was the result of negligence on the part of
the petrol tanker driver?"

7. On the basis of the evidences led before it, the Claims Tribunal

answered the issue in the negative and as a consequence dismissed all the

claim cases by its judgment and order dated July 31, 1997.

8. Against the judgment and order passed by the Claims Tribunal, the

applicant of MACP no.168 of 1988, preferred an appeal before the High

Court (being First Appeal no.149 of 1999). (The other claimants whose

claims were similarly dismissed by the Claims Tribunal are also said to have
7


preferred their respective appeals before the High Court which are pending

awaiting the result of the present appeal before this Court).

9. Before the High Court it was contended on behalf of the claimants

that the question whether the death of the victims resulted from an accident

arising out of the use of the petrol tanker was concluded by the decision of

this Court in Shivaji Dayanu Patil and any finding recorded by the Claims

Tribunal contrary to the decision of this Court was completely illegal and

untenable. On the other hand, on behalf of the insurer and the owner of the

petrol tanker, it was argued that the decision of this Court in Shivaji Dayanu

Patil was rendered on a claim for no-fault compensation under section 92A

of the Act. It was, thus, a judgment against an interlocutory order, before any

evidences were recorded in the proceeding and, therefore, the decision in

Shivaji Dayanu Patil cannot be taken as binding and it was open to the

Claims Tribunal or the High Court to come to a different finding on the basis

of the evidences adduced in course of the main proceeding. It was further

argued, on behalf of the insurer and the owner of the petrol tanker that an

order under section 92A is, in nature, an interim order that is passed without

following the formal procedure of recording evidence. The decision of this

Court in Shivaji Dayanu Patil had not decided the issue finally and

conclusively and, hence, the claimants could not draw any benefit from it in
8


the main proceeding under section 110A of the Act based on the principle of

fault or negligence of the driver of the vehicle. The High Court did not

accept the arguments advanced on behalf of the owner and the insurer of the

petrol tanker, but agreed with the claimants that the decision of this Court in

Shivaji Dayanu Patil was conclusive on the issue that the death of the

victim, caused by the fire and explosion of the petrol tanker, had resulted

from an accident arising out of the use of the motor vehicle, namely, the

petrol tanker and it was not open to the Claims Tribunal to take a contrary

view. It, accordingly, allowed the appeal and by judgment and order dated

March 24, 2005, set aside the judgment of the Claims Tribunal and allowed

the claim petition with costs.

10. Though, having held against the insurer, the High Court, on a prayer

made before it, granted certificate to appeal to this Court by order dated

April 28, 2005, in the following terms:

"1. Heard advocates for the appellant and respondents. The
issue involved that is for the purpose of this leave to go to the
Supreme Court is, whether the order of the Supreme Court
under section 92A was for all purposes an interim order or it
concluded and decided the question as to whether the vehicle
i.e. the tanker was in use when exploded. Though, I have held
against the respondents, looking to the question involved,
certificate as prayed, is granted. No stay to the order of
payment. Certified copy expedited."
9


11. Mr. Ramesh Chandra Mishra appearing on behalf of the appellant

advanced the same arguments before us as were advanced before the High

Court in support of the judgment passed by the Claims Tribunal. Learned

counsel submitted that the decision of this Court in Shivaji Dayanu Patil was

rendered on an application under section 92A of the Act and, therefore, any

finding recorded in that decision would not be binding on the Claims

Tribunal in the main proceeding under section 110A of the Act that was to

be decided on the basis of the evidences adduced before the Tribunal.

12. On hearing Mr. Atul Nanda, the amicus curiae and Mr. Ashok Kumar

Singh, counsel appearing on behalf of the respondent, we are unable to

accept the submissions made by Mr. Ramesh Chandra Mishra and we are in

complete agreement with the view taken by the High Court.

13. In a given case, on the basis of the evidences later on adduced before

it in the main proceeding under section 110A of the Act, it may be possible

for the Claims Tribunal to arrive at a finding at variance with the finding

recorded by a superior court on the same issue on an application under

section 92A of the Act. But the variant finding by the tribunal must be based

on some material facts coming to light from the evidences led before it that

were not available before the superior court while dealing with the

proceeding under section 92A of the Act. In this case, however, as correctly
10


noted by the High Court, the position is entirely different. It is true that the

case Shivaji Dayanu Patil arose from the claim for no-fault compensation

under section 92A but all the material facts were already before the court

and all the contentions being raised now were considered at length by this

Court in that case. In Shivaji Dayanu Patil the Court took note of the

relevant facts in paragraphs 2 and 3 of the judgment. In paragraph 4 of the

judgment, the Court noted the three limbs of argument advanced by Mr.

G.L. Sanghi, learned counsel appearing for the owner of the petrol tanker in

support of the plea that the explosion and fire in the petrol tanker could not

be said to be an accident arising out of the use of a motor vehicle. Paragraph

4 of the judgment reads as under:

"4. Shri G.L. Sanghi, the learned Counsel appearing for the
petitioners, has urged that in the instant case, it cannot be said
that the explosion and fire in the petrol tanker which occurred at
about 7.15 A.M., i.e., nearly four and half hours after the
collision involving the petrol tanker and the other truck, was an
accident arising out of the use of a motor vehicle and therefore,
the claim petition filed by the respondent could not be
entertained under Section 92-A of the Act. Shri Sanghi has
made a three-fold submission in this regard. In the first place,
he has submitted that the petrol tanker was not a motor vehicle
as defined in Section 2(18) of the Act at the time when the
explosion and fire took place because at that time the petrol
tanker was lying turtle and was not capable of movement on the
road. The second submission of Shri Sanghi is that since before
the explosion and fire the petrol tanker was lying immobile it
could not be said that the petrol tanker, even if it be assumed
that it was a motor vehicle, was in use as a motor vehicle at the
time of the explosion and fire. Thirdly, it has been submitted by
11


Shri Sanghi that even if it is found that the petrol tanker was in
use as a motor vehicle at the time of the explosion and fire,
there was no causal relationship between the collision which
took place between the petrol tanker and the truck at about 3
A.M. and the explosion and fire in the petrol tanker which took
place about four and half hours later and it cannot, therefore, be
said that explosion and fire in the petrol tanker was an accident
arising out of the use of a motor vehicle."

14. After having considered each of the 3 limbs of Mr. Sanghi's

arguments and having rejected all of them, the Court, in paragraph 37 of the

judgment, held and observed as follows:

"37. Was the accident involving explosion and fire in the petrol
tanker connected with the use of tanker as a motor vehicle? In
our view, in the facts and circumstances of the present case, this
question must be answered in the affirmative. The High Court
has found that the tanker in question was carrying petrol which
is a highly combustible and volatile material and after the
collision with the other motor vehicle the tanker had fallen on
one of its sides on the sloping ground resulting in escape of
highly inflammable petrol and that there was grave risk of
explosion and fire from the petrol coming out of the tanker. In
the light of the aforesaid circumstances the learned Judges of
the High Court have rightly concluded that the collision
between the tanker and the other vehicle which had occurred
earlier and the escape of petrol from the tanker which
ultimately resulted in the explosion and fire were not
unconnected but related events and merely because there was
interval of about four to four and half hours between the said
collision and the explosion and fire in the tanker, it cannot be
necessarily inferred that there was no causal relation between
explosion and fire. In the circumstances, it must be held that the
explosion and fire resulting in the injuries which led to the
death of Deepak Uttam More was due to an accident arising out
of the use of the motor vehicle viz. the petrol tanker No. MKL
7461."
12


15. We have examined the evidences of the OWs adduced before the

Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of

the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the

driver of the ill-fated petrol tanker who was examined as OW2. We have

also gone through the judgment of the Tribunal. In the evidences of the

OWs, there was no new material fact that wasn't already before this Court in

Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite

party, no new points were raised before the Claims Tribunal, that can be said

to have not been raised before this Court in Shivaji Dayanu Patil. The High

Court was, therefore, perfectly justified in observing in paragraph 26 of the

judgment coming under appeal as follows:

"... But whether the vehicle was in use or not was a question
before the Supreme Court and even after evidence that aspect
has not changed. Time at which the accident occurred, viz.
catching the fire by the petrol has remained the same. The
circumstances preceding this particular point have also
remained the same. The manner in which the petrol tanker came
near the spot and how it was hit by a vehicle or truck coming
from opposite direction also remained the same even after
evidence and therefore when facts which were before the
Supreme Court have not at all changed inspite of the full trial
and evidence, the judgment of the Supreme Court has to be
accepted and taken as a concluded judgment so far as the issue
as to whether the vehicle was "in use" or "arising out of the use
of the motor vehicle", fully and concluding. Secondly,
questions before the Supreme Court was about the
interpretation of the words "arising out of use of motor
vehicle". The situation namely occurring explosion to the petrol
13


tanker has not changed so far as this particular aspect is
concerned...."

16. In light of the discussions made above, it must be held that in the facts

and circumstances of the present case, the decision rendered in Shivaji

Dayanu Patil was completely binding on the Claims Tribunal and it was not

open to the Claims Tribunal to come to any finding inconsistent with the

aforesaid decision of this Court. The issue framed by the High Court is

answered accordingly. There is no merit in the appeal and it is, accordingly,

dismissed with costs.




....................................J.
(AFTAB ALAM)



....................................J.
(R.M. LODHA)


New Delhi
January 7, 2011.