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
10
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
11
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
12
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)
13
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
15
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
17
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
18
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
19
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
20
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,
26
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
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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
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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
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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
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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.
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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
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