ALOKE NATH DUTTA AND ORS. v. STATE OF WEST BENGAL

Citation: [2006] SUPP. 10 S.C.R. 662

Court: Supreme Court of India

Bench: S.B. SINHA, DALVEER BHANDARI

Case summary

ALOKE NATH DUTTA AND ORS. v. STATE OF WEST BENGAL.pdf

Judgment text

ALOKE NATH DUITA AND ORS. v.. STATE OF WEST BENGAL DECEMBER 12, 2006 [S. B. SINHA AND DALVEER BHANDARI, JJ. ] Penal Code, 1860: ss.

120B/302 and 201134--Conspiracy and murder-Prosecution case against four accused based on circumstantial evidence-Second accused impersonating as brother offirst accused and signing some papers for sale ofproperty-Other accused signing as witnesses-Dead body of brother of first accused found concealed in a newly erected platform in his house- Extra-judicial confession offirst accused stating to have killed his brother as deceased was not agreeable to the sale ofancestral property-He did not state other accused to have participated in the crime-Retracted judicial confession of second accused involving other accused--But stating that before taking to Magistrate for recordhg confession, he was taken to police station, tortured and tutored-No other evidence suggesting participation of other accused in crime-Held, there is no eye-witness of the incident- £ Signing of certain documents by one accused impersonating deceased and other accused signing as witnesses per se would not lead to conclusion that other accused agreed with first accused to eliminate his brother-In absence of any substantive evidence other accused cannot be convicted merely on basis of retracted confession and are, therefore, acquitted-First accused convicted u/s 302 and his sentence commuted to imprisonment for life- Retracted confession-Evidentiary value of-Circumstantial evidence.

Evidence Act, 1872: Extra-judicial confession-Admissibility ofin evidence-Held, law does not envisage taking on record entire confession by making it an exhibit incorporating both admissible and inadmissible part thereof together-On facts, only that part of confession which is admissible would be leading to recovery of dead body and/or articles of deceased-Purported confession proceeded to state even the mode and manner in which deceased was allegedly killed-This part is not to be taken on record ALOKE NATH DUTTAv. STATE OF WEST BENGAL 663 Confession before Magistrate-Recording of-Factors, besides procedural safeguards, to be taken into consideration-Discussed-Code of Criminal Procedure, 1973-s. 164. s.

24-Confession retracted stating that it was recorded after being tortured and tutored by police-Evidentiary value of-Held, retracted confession is a weak evidence-No judgment ofconviction to be passed on an uncorroborated retracted confession-Factors to be taken into consideration while testing veracity of a retracted confession-Discussed- Code of Criminal Procedure, 1973-Constitution of India, 1950-Articles 20(3) and 21. s. 30-Proved confession-Affecting person making it, and co-accused- Evidentiary value of s. 114-Presumption-Plea ofaccused that before taking to Magistrate for recording his confession, he was taken to police station and tortured and tutored-Application filed to call for jail records to prove this-Record not produced-Trial court drawing inference that record had been destroyed- Held, no such inference could be drawn in /aw-Court should give benefit of doubt to accused instead of prosecution. Appellants A-1 to A-4 were prosecuted for offences punishable under ss.

120B/302, 302/34 and 201134 IPC. The prosecution case was that A-1, who had vices ofgambling and horse racing etc. took advance from PW-15 and PW-8, to whom he intended to sell the house property of which he was a co-owner along with his other three elder brothers namely PWs 3,4 and deceased 'B' and one sister(PW-5). His ~Ider brother 'B' was livi. ng in the same hotise while his other two brothers were living separately. 'B' was not in favour ofsale of the property; other brothers were not even aware of it. The transactions with regard to sale of the property in favour ofPW-15 and PW-8 were being made as if 'B' was a party thereto. A-2 was said to have been impersonating 'B' and signing several documents. A-1 to A-4 were alleged to have committed murder of 'B' in the night between 22/23. 1. 1994 and concealed the dead body by erecting a platform in the room. A-1 made an extra judicial confession before PWs-3, 4,6 and 15 and some tenants that he had throttled 'B' to death.

When interrogated by police A-1 made a confession that he had concealed the dead body of'B' in the newly constructed platform · in the room. The platform was dismantled and a skeleton was recovered which was identified to be of'B'. A-2 was also made a statement under s. 164 Cr. P. C. before Metropolitan Magistrate on 31. 3. 1994 which he later retracted. The trial court relied upon the circumstantial evidence and the confessions and convicted A-1, A-2 and A-3 under ss. 302/1208, 302/34 IPC and sentenced them to death. A-4 was found guilty under s. 302/34 IPC and was sentenced to imprisonment for life. All the four accused were also convicted under s. 201/ 34. The High Court found no ground to interfere with the judgment and order of the trial court. Aggrieved, the accused filed the present appeals.

It was contended for the appellants, inter a/ia, that (1) the circumstantial evidence brought on record was not sufficient to bring home the charge of conspiracy against the appellants to commit the murder; (2) Courts below erred in not distinguishing between a larger conspiracy to commit a murder and relatively smaller conspiracy for impersonation ofdeceased by A-2 and committing the offence of forgery and cheating; (3) that purported extra judicial confession made by A-1 was confined to acceptance of his own guilt and as such all the appellants could not have been convicted u/s 302/34 IPC; (4) judgment ofconviction could not have been arrived at on the basis ofjudicial confession made by A-2 which was retracted and was thus ofa weak evidentiary value especially when there was no corroboration thereof; and (5) the case being based on circumstantial evidence and there being no eye-witness, the prosecution could not be said to have established all the links in the chain so as to prove commission ofoffence by appellants.

On the question : Whether A-1 hatched a conspiracy with the other appellants to do away with his brother and dispose of his dead body, Allowing the appeals ofA-2, A-3 and A-4, and partly allowing the appeal of A-1, the Court HELD:l. 1. There is no direct evidence to show that other appellants also conspired with A-1 to kill his brother and dispose of his dead body. Their presence had not been noticed by any of the witnesses. Nobody saw them together in the house. Nobody saw A-2 coming to the house even once. It is true that it is difficult to have direct evidence of conspiracy, but to prove conspiracy hatched to commit a heinous crime, circumstantial evidence brought on record must be such which would have no loose ends to tie. 1681-E] 1. 2. From the evidence of PWs 7,8,10,14,15 and 16, though it is sufficiently clear that A-1 and A-2 conspired to sell the property, but their evidences taken in entirety, however, do not lead to the conclusion that they ALOKE NATH DUTTAv.

STATE OF WEST BENGAL 665 conspired to murder the deceased. (682-D) 1. 3. So far as A-1 is concerned, having regard to the charges framed, both the circumstantial evidence as also the extra judicial confession made by him are relevant. His further statements leading to the recovery of the dead body as also recovery of articles belonging to his deceased brother are also relevant. It has also been proved that he sold some ofthe articles belonging to the deceased. (691-H; 692-Al 2. 1. The confession made by A-1 has not been brought on record in a manner contemplated by law. Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. Only that part ofconfession which . is admissible would be leading to the recovery ofdead body and/or recovery of articles of deceased. The purported confession proceeded to state even the mode and manner in which deceased was allegedly killed.

It should not have been done. It may influence the mind of the court. (692~B] State of Maharashtra v. Damu Slo Gopinath Shinde & Ors. , (2000] 6 SCC 269; Anter Singh v State of Rajasthan, (2004) 10 SCC 657 and Dhananjoy Chatterjee@ Dhana v. State of West Bengal, (1994) J SCC 220, referred to. 2. 2. Prosecution witnesses have deposed that A-1 made confession before them; and in view of the evidences on record, it has to be held that the same was voluntary in nature. The confession having been spontaneous in the form of natural response to a stressful stimulus made at the spur of the moment, ther~ is no reason as to why t~e same should be discard~d. A-1 made extra judicial confession not only in presence of his own elder brothers PW-3 and PW-4, but also in the presence ofhis nephew (PW-6), the intending purchaser of the house (PW-15) as also the two tenants of the premises, PW-18 and PW-19.

The evidences of these witnesses are consistent and there is no reason to disagree with findings of the courts below in this behalf. [694-F; 695-C] Heramba Brahma and Anr. v. State of Assam, AIR (1982) SC 1595, distinguished. State of Rajasthan v. Raja Ram, [2003] 8 SCC 180; Gagan Kanojia and Anr. v. State ofPunjab Criminal Appeal Nos. 561-62, 563 of2005, decided on 24. 11. 2006; Nazir Khan & Ors, v. State ofDelhi, [2003} 8 SCC 461; Ram Khilari v. State ofRajasthan. , [1999] 9 SCC 89; and Namala Subba Rao v. State ofA. P. , [2006] (10) SCALE 253; State ofRajasthan v. Kashi Ram, (2006) 1J SCALE 440; and Ku/winder Singh v. State ofPunjab Criminal Appeal No. 675 of 2006 decided on 05. 12. 2006, relied on. 2. 3. In his confession A-1 takes the entire blame on himself. The courts below have not erred in opining that extra judicial confession ofA-1 is not in any way doubtful.

The circumstances enumerated by the trial Judge in the light ofthe evidences brought on record and the extra judicial confession made by A-1 lead to only one conclusion that the dead body recovered was that of the deceased and it was A-1 who was responsible for his death. On the evidence on record, the involvement of A-1 is proved beyond any shadow of doubt. He has, therefore, rightly been convicted ofcharges leveled against him. [697-G; 694-C) 3. 1. Appellants other than A-1, had not been seen by anybody else immediately before or after the alleged occurrence. In fact, there is no eyewitness to the alleged occurrence. The neighbours were also not examined to show that any untoward incident had taken place. There is furthermore no evidence on record to show that any of A-2 to A-4 had even taken part in concealment of the dead body.

The prosecution did not examine any witness · to establish the case as to how the other appellants had helped A-1 in procuring bricks and cement or whether any other person had helped him in concealment of the dead body. So far as extra-judicial confession of A-1 is concerned, he implicated only himself and did not implicate any other person in the conspiracy. Thus, there is no evidence in regard to the meeting of mind witli reference to the plot of murder. A-1 evidently was in a desperate situation. He required money. Others did not. Motive on the part of other appellants is not explicit. Therefore, others cannot be treated to be his accomplice. Even p the statements made by him, leading to recovery of the dead body or other articles belonging to the deceased, do not implicate the other appellants in any manner whatsoever. [698-E, D, G, HJ 3. 2. Assuming that other appellants conspired with A-1 for selling the house.

Signing of certain documents, impersonation of deceased by A-2 or the other appellants' signing the said documents as witnesses, per se would not lead to the conclusion that at any point of time they had agreed with A-1 that deceased should be eliminated. There is no eye-witness to the occurrence. Nobody has noticed any suspicious conduct on part of other appellants indicating their role in committing murder or disposing the dead body. While dealing with a case of grave nature like the present one, there is always a ALOKE NATH DUTTAv. STATE OF WEST BENGAL 667 danger that conjectures and suspicion may take the place oflegal truth. This court has laid down guidelines from time to time in regard to a finding of guilt solely on the basis of circumstantial evidence in a number of cases. (699-A-DJ Hanumant Govind Nargundkar and Anr. v. State ofMadhya Pradesh, AIR (1952) SC 343; Sharad Birdhichand Sarda v. State ofMaharashtra, AIR (1984) SC 1622 = (1984) 4 SCC 116; Kashmira Singh v.

State ofMP. , AIR (1952) SC 159; Swaran Singh Rattan Singh v. State ofPunjab, AIR (1957) SC 637; Mousam Singha Roy and Ors. v. State of West Bengal, [2003) 12 SCC 377; Shankaria v. State ofRajasthan, (1978) 3 SCC 435 and Anil@ Raju Namdev Patil v. Administration ofDaman and Diu, Daman and Anr. , (2006) 12 SCALE 516, relied on. Muthuswami v. State ofMadras, AIR (1954) SC 4, referred to. 4. 1. As regards retracted confession ofA-2, considering the guarantee under Article 20 (3) and also humanizing standards under Article 21 of the Constitution of India, the Court need to tread cautiously while construing retracted confession. Although such caution is subject to some exceptions such as per se evidence of the motivating factors of retraction or retraction based on extraneous circumstances. To withdraw from what has been said previously needs to be interpreted in the vein of right to remain silent as an extension ofthis civil liberty.

In similar vein the law on retracted confession must be judged in the context ofeach case. (7~4-G; 705-G, H; 706-AJ Smt. Nandini Satpathy v. P. L. Dani andAnr. , AIR (1978) SC 1025; State (N. C. T. of Delhi) v. Navjot Sandhu @ Afsan Guru, [2005] 11 SCC 600; Directorate ofEnforcement v. Deepak Mahajan and Anr. , [1994) 3 SCC 440 and Balkishan A. Devidayal v. State of Maharashtra, [1980] 4 SCC 600, p referred to. 4. 2. In a case, where confession is made in the presence ofa Magistrate conforming to the requirements of Section 164 of the Code of Criminal Procedure, 1973, if it is retracted at a later stage, the court should probe deeper into the matter. Judicial confession must be recorded in strict compliance of the provisions ofSection 164 of the Code. It is to be borne in mind that despite the fact that procedural safeguards contained in Section 164. may be satisfied, the courts must also look for truthfulness and voluntariness thereof.

Where there is no objective material available for verifying the conditions in which the confession was retracted, the spirit of section 24 ofthe Evidence Act (irrelevance ofconfession caused by inducement) may be extended to retracted confession. An inverse presumption must be drawn from absence of materials. (707-B, D, F-H; 708-AJ Babubhai Udesinh Parmar v. State ofGujarat, (2006] 12 SCALE 385, relied on. 4. 3. It is a well-known principle of law that a retracted confession is a week evidence. In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for corroboration of material particulars by independent and cogent evidence. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature.

Although retracted confession is admissible, the same should be looked with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads e''iuence to the court [712-F; 708-B; 710-BJ Sidharth and Ors v. State ofBihar, (2005] 12 SCC 545 and State ofTamil Nadu v. Kutty@ Lakshmi Narsimhan, (2001) 6 SCC 550, distinguished. Bharat v. State ofUP, [1971) 3 SCC 950; Kora Ghasi v. State, [1983) 2 SCC 251, Preetam v. State ofMP, [1996) 10 SCC 432, and Bhagwan Singh v. State ofMP, (2003) 3 SCC 21, referred to. · 4. 4. No judgment ofconviction shall be passed on an uncorroborated retracted confession. The court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthful and voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. (709-G) 4. 5.

In the instant case, it is true that sufficient time was given (two days) to A-2 to confirm his willingness to confess and finalize the contents of the confession. The reasons for which the confession had been retracted and th~ subsequent events wherein the appellants intended to prove a certain state ofaffairs, namely, although A-2 was supposed to have been produced directly from the jail to the Magistrate concerned but in fact he was taken out ofjail 2 Y2 hours before the time fixed therefor, could be a pointer to the fact as to whether the confession was a voluntary one. He was, as subsequently asserted by him, first taken to the Police Station and was threatended and tortured and was also tutored as to what he should tell the Magistrate in his confession. PW-48the1. 0. was cross examined on this point and suggestions were also ALOKENATHDUTTA v. STATE OF WEST BENGAL 669 given to him which he denied. (711-G-H; 714-E) 4. 6.

The fact that the accused was produced from the police custody is accepted. But it was considered in a routine manner. The Magistrate in his evidence could not even state as to whether the appellants had any injury on his person or whether there had been any tainted marks therefor. Further, on 4. J0. 2002, the lawyer appearing for appellant no. 2 made a submission that an application had been filed praying for calling of some records from the Presidency Jail. No order had been passed thereupon. It was contended that he had been taken from Jail at 10. 00 a. m.. The records were directed to be produced. However from the order sheet dated 14. 11. 2002 it appears that the said records had not been produced. On 17. 01. 2003 a prayer had again been made on behalfof A-2 that steps would be taken for production of the documents in terms oforder dated 04. 10. 2002. [707-E; 710-C-D] 4. 7.

It is expected in a situation of this nature that the court will issue a suo motu direction to the authority to produce the records. There was absolutely no reason as to why the records would not be produced by the Jail authorities for a period of two months. If the said records had not been produced, it was obligatory on the part of the court to issue a suo motu notice. Ifa public authority does not produce a document despite being called upon to do so; an adverse inference is to be drawn. Converse is not the law. (711-Fl 4. 8. There was no reason for the court to draw an adverse inference that the records had been destroyed. No such inference could be drawn in law either in terms ofSection 114 of the Evidence Act or any other law. The period during which such documents are preserved under the provisions of the jail manual have not been referred to. No evidence was brought on record to show that the documents had in fact been destroyed.

The least the jail authorities could do was to produce the destruction register. (712-C] 4. 9. In the aforementioned backdrop, the court should give the benefit ofdoubt to the accused instead of the prosecution. The trial Judge should not have closed the case. He should have invoked his jurisdiction under Section 311 of the Code ofCriminal Procedure in the interest ofjustice and instead of blaming the defence for non-examination of the Superintendent ofJail, the court itself should have called upon authorities to produce the document The presumption raised by the court in this behalf is wholly misconceived. (712-D) 5. 1. In the instant case, there is no independent evidence adduced on behalf of the prosecution to prove conspiracy with regard to cheating and forgery ofdocuments and impersonation. They had been sought to be proved by the supplementary circumstantial evidences. The courts below have failed to notice the legality of the judicial confession.

There did not exist any evidence against A-2. The courts apparently considered the confessions of A-1 and then started connecting links therefrom and again came back to the confession for completing the chain. (714-F-G-H] 5. 2. The evidences merely established to defraud the intending purchasers. At that point of time, A-1 thought it fit to do away with his brother as he was proved to be an obstruction in his attempt to dispose of the property. The other appellants might or might not have joined hands with him, but unless there exist sufficient and cogent reasons to link them with the alleged crime committed by A-1, it may not be said that they are also guilty thereof. . (715-B-C) 5. 3. Furthermore, so far as the accusations against A-3 and A-4 are concerned, the only evidence against them was the judicial confession of A- 2. The same was admissible against them only under Section 30 of the Evidence Act.

It is not in dispute that apart from general evidence in regard to commission of forgery etc. , only evidence of involvement of A-3 and A-4 is the judicial confession made by A~2. The extra judicial confession made by A-1 before the prosecution witnesses does not implicate these appellants. Only in his judicial confession, A-2 has assigned roles to these accused persons as having common intention to commit the offence of murder of deceased with A-1. (715-D-F] 5. 4. The expression 'the court may take into consideration such confession' appearing in s. 30 of Evident Act is significant. It signifies that such confession by the maker as against the co-accused should be treated as a piece ofcorroborative evidence. In absence of any substantive evidence, no judgment ofconviction can be recorded only on the basis ofconfession ofa co-accused, be it extra judicial confession or a judicial confession and least ofall on the basis of retracted confession.

What is furthermore required to be considered is that if a retracted confession itself is weak evidence, the question of conviction of a co-accused on the basis thereof would not arise. Therefore, this part of the judgment of the trial judge cannot be sustained. (716-B-C) Ram Parkash v. The State ofPunjab, (1959) SCR 1219; Bhuboni Sahu v. R. , AIR (1949) PC 257; Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 SCR 623; Subramania Goundan v. The State of Madras, AIR (1958) SC 66; Pyare Lal Bhargava v. State ofRajasthan, AIR (1963) SC 1094; Puran v. The State ofPunjab, AIR (1953) SC 459; Balbir Singh v. State •' ALOKE NATH DUTTAv. STATE OF WEST BENGAL 671 ofPunjab, AIR (1957) SC 216; Nand Kumar and Ors. v. State ofRajasthan, . (1963) Crl. Ll 702; State ofMaharashtra v. Bharat Chaganlal Raghani and Ors. , (2001] 9 SCC I; Jameel Ahmedand Alir v. State ofRajasthan, (2003) 9 SCC 673 and Parmananda Pegu v. State ofAssam, AIR (2004) SC 4197, referred to. R.. v.

Thompson, (1893), 2 QB 12, 18 ; R v. Babula/, 6 A 509, 542, 543, referred to. Sarkar on Evidence, 15th Edn. , Volume 1- page 466, referred to. 6. 1. Sentencing indisputably is a part ofcriminal jurisprudence. More importantly, in death penalty references sentencing issue requires serious deliberation. Cases ofthis nature warrant objective evaluation ofindicia and legal thresholds. When a statute provides for death penalty, so long as the . same is not ultra vires, application thereof cannot be altogether eliminated. But keeping in view the decision of the Constitution Bench ofthis Court, the juriStliction of the Court in this behalf is limited. Death penalty can be awarded only if in the opinion of the court, the case answers the description of rarest of rare cases. What would constitute a rarest of rare cases must be determined in the fact situation obtaining in each case. (726-F; 727-C) Union ofIndia (UOI) and Ors. v. Devendra Rai, (2006) 2 SCC 243; State ofMP. through CBI and Ors.

v. Pa/tan Mal/ah and Ors. , (2005) 3 SCC 169; Bachan Singh v. State ofPunjab, [1980) 2 SCC 684 =AIR (1980) SCC 898; Machhi Singh and Ors. v. State ofPunjab, (1983) 3 SCC 470; Sevaka Perumal v. State ofTamil Nadu, AIR (1991) SC 1463; Devender Pal Singh v. State of NCTofDelhi, AIR (2002) SC 1661; Dhananj~y Chatterjee@ Dhana v. _State ofWest Bengal & Ors. , (2004) 9 SCC 759; Saibanna v. State ofKarnataka, JT (2005) 5 SC 564 = (2005) 4 SCC 165; Ram Anup Singh and Ors v. State of Bihar, [2002) 6 SCC 686, Bachittar Singh and Anr v. State ofPunjab, [2002) 8 SCC 125; Surendra Pal Shivbalakpal v. State ofGujarat, (2005) 3 SCC 127; State of Maharashtra v. Man Singh, [2005( 3 SCC 131; Rama Subramanian v. State ofKera/a, AIR (2006) SC 639 ; State ofRajasthan v. Kheraj Ram, (2003) 8 SCC 224; State ofUP. v. Salish, (2005) 3 SCC 114; Holiram Bordoloi v. State ofAssam, 120051 3 SCC 793 and Pratap Singh v. State ofJharkhand and Anr. , (2005( 3 SCC 551, relied on. Jaswant Gir v.

State ofPunjab, 12005] 12 SCC 438; Amrii Singh v. State ofPunjab, [2006) 11 SCALE 309; Major Singh and Anr. v. State ofPunjab, [2006) to SCALE 354; Renuka Bai@ Rinku@ Ratan & Anr. v. State of Maharashtra, 12006] 7 SCC 442, 12006] 8 SCALE 604; Gurmeet Singh v. State ofUttar Pradesh, [2005] 12 SCC 107; Mithu v. State ofPunjab, [19831 2 SCR 690; Sahdeo and Ors etc. v. State ofUP. , [2004] 10 SCC 682; Sheikh /shaqe and Ors. v. State ofBihar, (1995] 3 SCC 392; Kishori v. State of Delhi, 11999) 1SCC148; Ba/raj v. State ofUP. , 11994) 4 SCC 29; Jashubha Bharatsing Gohil and Ors. , [1994) 4 SCC 353; and Union ofIndia, (UOI) and Ors. v. Devendra Rai, [2006) 2 SCC 243, referred to. Atkins v. Virginia, 536 U. S. 304 (2002); Reyes v. R ,(2002) UKPC 11 : 12 BHRC 219; Hughes, R v. (Saint Lucia), (2002) UKPC 12; Roper v. Simmons, 543 U. S. 551 (2005), referred to. 6. 2. The facts of this case do not make out the case to be one of rarest of rare cases.

The manner of commission of offence may be gruesome. Deceased was killed while he was in deep slumber, but the method applied cannot be said to be cruel. The reason for commission of the murder is greed of money on the part of A-1 which evidently arose out the result of his bad habits. He was pu~hed back to such a situation where he thought that he had no other option but to kill his brother. The prosecution has not brought out any material to show that A-1 had not been maintaining good relations with his deceased brother. There might have been difference of opinion between the brothers in regard to the question of sale of the house, but there is nothing to say one way or the other in this behalf. Besides, in the facts and circumstances of the case, prosecution having failed to prove the case of conspiracy against A-1 the case cannot be said to be one constituting rarest of rare cases. There is no special reason for awarding death penalty which is imperative.

There are some precedents of this Court which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded. Following the said precedents instead and, thus, in place of awarding the death penalty, sentence of rigorous imprisonment for life is imposed as against A-1. Furthermore, there is no special reason for awarding death penalty which is imperative. 1725-G; 727-F-G; 728-B) Sahdeo and Ors etc. v. State ofUP. , 12004110 SCC 682; Sheikh Ishaqe and Ors v. State ofBihar, 11995) 3 SCC 392, relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 8867- 868 of2005. From the final Judmgnet and Order dated 4. 3. 2005 ofthe High Court of Calcutta at Calcutta in Death Reference No. 2 of2003 and Crl. A. Nos. 396, 489/ 2003. WITH Criminal Appeal No. 875 of2005. Pradip Ghosh, Manohar Singh Bakshi (A. C. ) Rauf Rahim and Mohd. Iqbal for the Appellants.

Altaf Ahmed, Avijit Bhattacharjee, Kaji Safiulla, Saumya Kundu and Bikash Kargupta, for the Respondent. The Judgment of the Court was delivered by S. B. SINHA, J. INTRODUCTION : Premise No. 2C, a three storied building situate at Beadon Street situated . in the town of Kolkata, belonged to one Jagannath Dutta. He transferred the said property in favour of his wife Arunamoyee Dutta on certain terms and conditions wherewith we are not concerned. She had four sons and one daughter. During her life time, tWo of the sons, namely, Biswanath Dutta (deceased) and Aloke Nath Dutta, (appellant), were residing with her. Biswanath used to stay at the second floor with some tenants occupying some portions thereof; whereas Aloke Nath Dutta used to reside on the first floor. Her daughter Anuradha Das was married and was residing at Jadavpore. Two other sons, namely, Amar Nath Dutta (PW-4) and Samar Nath Dutta (PW-3) were residing in the towns of Chandannagore and Bararast respectively.

Arunamoyee Dutta died intestate in April, 1993. Aloke Nath was working with Kolkata Police, whereas Biswanath was employed in the United Bank of India. Biswanath was a bachelor, whereas Aloke Nath is married. Mamata one of the appellants herein, is Aloke Nath's wife. Sister of Mamata and her husband Shib Sankar Roy @ Gobinda@ Babu Roy were also residing on the first floor. Appellants herein are alleged to have entered into a conspiracy to commit the murder of Biswanath on 22. 01. 1994 at the first floor of the said premises, the details whereof, we would deal with hereinafter. PROSECUTION CASE: Aloke Nath had many vices. He was a spendthrift. He was a womanizer . ~! '" and spent a lot of money in gambling and horse racing etc. He intended to sell the said house property, wherefor he entered into agreements for sale with one Nandlal Singh as also with one Arunmoy Bose. Arunmoy Bose advanced a sum of Rs. 65,000/- to him.

Nandlal Singh (PW-15) also had advanced various sums of money to Aloke Nath from time to time. He on the advice of his advocate Bikash Pal (PW-14) refused to advance any further sum till the time he was put in possession of the room of the second floor and the Puja Room; which was promised to· be delivered on 23. 01. 1994. Prosecution story is that the deceased was not in favour of sale of the said property. The transactions with regard to the sale of the said property, in favour of the said Nandlal Singh and Arunmoy Bose, however, were being conducted, as if Biswana t so far as is provided by Section 27 of the Act. Section 164, however, makes the confession before a Magistrate admissible in evidence. The manner in which such confession is to be recorded by the Magistrate is provided under Section 164 of the Code of Criminal Procedure.

The said provision, inter alia, seeks to protect an accused from making a confession, which may include a confession before a Magistrate, still as may be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) ofthe Constitution of India as also Article 21 thereof. Although, ALOKE NATH DUTIAv. STATE OF WEST BENGAL [S. B. SINHA, J. ] 707 Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should some time, in our opinion, be more intrusive than what is required in law. [See Babubhai Udesinh Parmar v. State o/Gujarat, (200~) 12 SCALE 385]. Jn a case, where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court in our opinion, should probe deeper into the matter.

Despite procedural safeguards contained in the said provision, in our opinion, the learned Magistrate should satisfy himself that whether the confession was of voluntary nature. It has to be appreciated that there can be times where despite such procedural safeguards, confessions are made for unknown reasons and in fact made out of fear of police. Judicial confession must be recorded in strict compliance of the provisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by rea5on of any inducement, threat or torture. The fact that the accused was produced from the police custody is accepted. But it was considered in a routine manner.

The learned Magistrate in his evidence could not even state as to whether the appellants had any injury on his person or whether there had been any tainted marks therefor. The courts while applying the law mus~ give due regard to its past ·experience. The past experience of the courts as also the decisions rendered by the superior courts should be taken as a wholesome guide. We must remind ourselves that despite the fact that procedural safeguards contained in Section 164 of the Cr. P. C. may be satisfied, but the courts must look for truthfulness and voluntariness thereof. It must, however, be remembered that it may be retracted subsequently. The court must, thus, take adequate precaution. Affirmative indication ofexternal pressure will render the retracted confession nugatory in effect. The court must play a proactive role in unearthing objective evidence forming the backdrop ofretraction and later the examination of such evidence of retraction.

However in cases where none exists, the court must give the benefit of doubt to the accused. Where there is no objective material available for verifying the conditions in which the confession was retracted, the spiritofsection 24 ofthe Evidence Act (irrelevance ofconfession caused by inducement) may be extended to retracted confession. An inverse presumption must be drawn from absence of materials. In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for 'corroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature. Evidentiary value of retracted confession: A retracted confession of a co-accused cannot be relied upon for the purpose of finding corroboration for the retracted confession of an accused. It was so held in Bhuboni Sahu v. R.

, AIR (1949) PC 257, stating : "The court may take the confession into consideration and thereby no doubt, makes its 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. " [See Hari Charan Kurmi and Jogia Hajam v. State ofBihar, [1964] 6 SCR ,. 623] However, we are not unmindful ofthe fact that in this country, retractions are as plentiful as confessions. In a case of retracted confession, the courts should evidently be a little slow in accepting the confession, although the accused may not be able to fully justify the reasons for his retraction. It is interesting to note that in R. v. Thompson, (1893), 2 QB 12, 18, Cave, J.

stated the law thus: "I would add that for my part I always suspect these confessions which are supposed to be the offspring of penitence . and remorse and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is ofvery rare occurrence. for evidence ofa confession to be given when the proof of the prisoner's guilt is otherwise. clear, and satisfactory, but when it is not clear and satisfactory, the prisoner is not frequently alleged to have been seized with a desire, born of penitence and remorse; to supplement it with a confession a desire which vanishes as soon as he appears in a court of justice. " - Straight J, observed in R. v.

Babula/, 6 A 509, 542, 543 "An endless source of anxiety and difficulty to those who have to see that justice is properly administered I have said, and repeat now, it is incredible that the extraordinarily large number of confessions, which come before us in the criminal cases disposed of by this court, either in appeal or revision, should have been voluntarily and freely made in every instance as represented the retraction follows almost invariably as a matter of course" [See SARKAR ON EVIDENCE, 15th Edn. Volume 1 - page 466] The value of a retracted confession is now well-known. The court must be satisfied that the confession at the first instance is true and voluntary. [See Subramania Goundan v. The State ofMadras, AIR (1958) SC 66 and Pyare Lal Bhargava v. State ofRajasthan, AIR (1963) SC 1094. Caution and prudence in accepting a retracted confession is an ordinary rule. [See Puran v. The State ofPunjab, AIR (1953) SC 459].

Although if retracted confession is found to be corroborative in material particulars, it may be the basis ofconviction. [Balbir Singh v. State ofPunjab, AIR ( 1957) SC 216]. We may notice that in 1950's and 1960's corroborative evidence in "material particulars" was the rule. [See Puran (supra), Balbir Singh (supra), Nand Kumar and Ors. v. State of Rajasthan, (1963) Cr!. LJ 702. distinctiveness was made in later years in favour of "general corroboration" or "broad corroboration". [See for General Corroboration - _State of Maharashtra v. Bharat Chaganlal Raghani and Ors. , [200-1] 9 SCC l]; "General trend ofCorroboration" - Jameel Ahmed and Anr. v. State of Rajasthan, [2003] 9 SCC 673; and "Broad Corroboration" - Parmananda Pegu v. State ofAssam, AIR (2004) SC 4197] Whatever be the tenninology used, one rule is almost certain that no judgment of conviction shall be passed on an uncorroborated retracted confession.

The court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthful and voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. We are not oblivious of some of the decisions of this Court which proceeded on the basis that conviction of an accused on the basis of a retracted confession is permissible but only if it is found that retraction made by the accused was wholly on a false premise. [See Balbir Singh (supra)]. There cannot, however, be any doubt or dispute that although retracted confession is admissible, the same should be looked with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads evidence to the court. Why we should not rely on the confession : Coming to the facts ofthis case, on 04. 10.

2002, the lawyer appearing for Mrinal Dutta made a submission that an application had been filed praying for calling of some records from the Presidency Jail. No order had been passed thereupon. It was contended that he had been taken from Jail at 10. 00 a. m.. The records were directed to be produced. However from the order sheet dated 14. 11. 2002 it appears that the said records had not been produced. On 17. 0l. 2003 a prayer had again been made on behalf of Mrinal Dutta that steps would be taken for production of the documents in terms of order dated 04. l 0. 2002. The learned Judge recorded : "The order No. 265 goes to show that th~ Court passed order regarding production ofJail Register ofPresidency Jail dated 21. 3;94. The report ofthe Superintendent, Presidency Correctional Home dated 14. 11. 02 shows that the same was not available. It was further stated in the said letter that if the said register is available, the same will be sent to this Court at once.

As the said Register has not been produced, the Court is duty bound to take presumption that the said Register could not be traced out. It should be stated here that the cease work was withdrawn long ago and during this period, the defence lawyer for accused Mina! Dutta did not take any step to compel the superintendent Presidency Correctional Home to appear in person and to produce the document. As today is fixed for D. W. and as no petition has been fifed the case is closed, considering the fact that the case is pending for trial since 1994. " The court, with respect, misdirected itself. It had no such duty. It was in fact the other way found . ALOKE NATH DUTTA v. STATE OF WEST BENGAL [S. B. SINHA, J. J 711 - It is not in dispute that Mrinal Dutta had retracted from his confession. The value of the retracted confession was required to be considered on the accusation of the accused that the confession was not voluntary.

In his application retracting from his confession, it was alleged : "Respected Sir, my humble submission is that'I am infonning true facts of my case. I have been implicated in the murder of Biswanath Dutta and the fraud committed. I am not connected with these incidents and I know nothing about these acts. Police came to my house on 7. 3. 94 to apprehend my brother-in-law Gobinda Roy. Gobinda was at my house on the said date. Police apprehended and brought me and Gobinda Roy from my house. Thereafter implicated me in that murder and fraud. Then beat me up severely and told me to state whatever they dictate and thereafter to accept the same. Otherwise they would torture me and members of my family continuously in various manners and would implicate in other cases also. They told me if you follow our dictates we would save you. They made me make a confession as per their false statements before a Respected Magistrate of Jorabagan Bankshall Court.

Out of the fear of Police torture I and members of my family are on the brink of destruction. My humble appeal to you to kindly take necessary action to save me and members of my family from destruction. " It is expected in a situation of this nature that the court will issue a suo motu direction to the authority to produce the records. There was absolutely no reason as to why the records would not be produced by the Presidency Jail's authorities for a period oftwo months. If the said records had not been produced, in our opinion, it was obligatory on the part of the court to issue a suo motu notice. The court was dealing with a serious matter. More than one life hinged on that valuable material. If a public authority does not produce a document despite being called upon to do so; an adverse inference is to be drawn. Converse is not the law.

It is true that sufficient time was given (two days) to Mrinal Dutta to confinn his willingness to confess and finalize the contents of the confession. The reasons for which the confession had been retracted and the subsequent events wherein the appellants intended to prove a certain state of affairs, namely, although he was supposed to have been produced directly from the jail to the concerned Magistrate but in fact he was taken out ofjail 2 hours before the. time fixed therefor, could be a pointer to the fact as to whether the confession was a voluntary one. It may be true that an application for adducing evidence had been filed by the Appellants in terms of Section 311 ofthe Code ofCriminal Procedure, but the said evidence, if adduced would have tilted the balance one way or the other so as to enable the court to come to the conclusion as to whether the purported judicial confession made by Mrinal Dutta satisfies the tests laid down by this Court in a large number of decisions.

There was no reason for the court to draw an adverse inference that the records had been destroyed. No such inference could be drawn in law either in terms of Section 114 of the Indian Evidence Act or any other law. The period during which such documents are preserved under the provisions of the jail manual have not been referred to. No evidence had been brought on record to show that the documents had in fact been destroyed. The least the jail authorities could do was to produce the destruction register. In the aforementioned backdrop, the court should give the benefit of doubt to the accused instead of the prosecution. The learned Trial Judge, in our opinion, should not have closed the case. He should have invoked his jurisdiction under Section 311 of the Code of Criminal Procedure in the interest ofjustice and instead of blaming the defence for non-examination of the Superintendent of Presidency Jail, the court itself should have called upon authorities to produ~e the document.

The presumption raised by the court in this behalf is wholly misconceived. Effect ofa retracted confession: We are not suggesting that the confession was not proved, but the question is what would be the effect of a retracted confession. It is now a well-settled principle of law that a retracted confession is a weak evidence. The court while relying on such retracted confession must satisfy itself that the same is truthful and trustworthy. Evidences brought on records by way of judicial confession which stood retracted should be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. [See Paramananda Pegu (supra)] In Navjot Sandhu @ Afsan Guru (supra), this Court observed: "32. As to what should be the legal approach of the court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarised in Bharat v. State of U. P.

Hidayatu/lah, C. J. , speaking for a three-Judge Bench observed thus: (SCC p. 953, para 7) "Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later.

A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true" [See also Puran (supra), Bharat v.

State ofUP, [1971] 3 SCC 950, Kora Ghasi v. State, [1983] 2 SCC 251, Preetam v. State ofMP, [1996] 10 SCC 432 and Bhagwan Singh v. State q(MP, (2003] 3 SCC 21). Mr. Altaf Ahmad, relied upon a decision of this Court in Sidharth and Ors. V. State of Bihar, [2005] 12 sec 545 wherein having regard to the extensive evidences produced by the prosecution, it was held that the same lent corroboration to the confession made by the accused. In that case the circumstances had been independent de'hors the confession. It was opined: ... "16. The confession made by the appellant Amit Das is voluntary and is fully corroborated by the above items ofevidence. The Sessions . Judge was perfectly justified in relying on the confession made by the appellant Amit Das. " Reliance has also been placed by Mr. Ahmad on State of Tamil Nadu v. Kutty@ Lakshmi Narsimhan, [2001] 6 SCC 550. Therein materials were brought on records to lend assurance to the court about the truthfulness of the confession made.

There had been several independent circumstances which had lent assurance thereto, although the same had been retracted. APPRECIATION OF EVIDENCE: In the instant case, it is an admitted position that on 19th March, 1994, Mrinal Dutta was taken to the Magistrate (PW-43) straight from the Police custody. Even though the Magistrate had sent the accused to jail custody on 19th March so that he could further reflect on the matter, when he was brought to the Magistrate again on 21. 03. 1994 he was, as subsequently asserted by Mrinal Dutta, first taken to A! ipore Police Station and was threatended and tortured and was also tutored as to what he should tell the Magistrate in his confession. PW-48 . the 1. 0. was cross examined on this point and suggestions were also given to him Which he denied. Mrinal Dutta in his retraction made from jail on 16. 06. 1994 emphatically stated that he was taken to Alipore police station before being brought to the Magistrate on 21. 03. 1994.

·He maintained that stand in his examination under Section 31~ Cr. P. C. Strangely enough prosecution did not make any attempt to disprove this allegation. In this case, as we have noticed hereinbefore, there is no independent evidence adduced on behalf of the prosecution to prove conspiracy with regard to cheating and forgery of documents and impersonation. They had been sought to be proved by the supplementary circumstantial evidences. In this case, the courts below have failed to notice the legality of the judicial confession. There did not exist any evidence against Mrinal Dutta. The courts apparently considered the said confessions of Aloke Nath and then started connecting links therefrom and again came back to the confession for completing the chain. Confession must be considered so as to buttress ALOKE NATH DUTTAv. STATE OF WEST BENGAL [S. B. SINHA, J. ] 7I5 other evidence and not the vice-versa.

In other words, in the instant case, the courts started to consider the matter from the angle of confession then picked up facts from the deposition of the witnesses and again came back to · the confession. The evidences merely established to defraud the intending purchasers. At that point of time, Aloke Nath thought it fit to do away with Biswanath, as he was proved to be an obstruction in his attempt to dispose of the property. The Appellants might or might not have joined hands with him, but unless there exist sufficient and cogent reasons to link them with the alleged crime committed by Aloke Nath, it may not be said that they are also guilty thereof. Effect ofretracted confession ofMrinal Dutta on Appellants other than A/oke Nath : Furthermore, so far as the accusation against Babu Roy and Mamata Dutta are concerned, the only evidence against them was the judicial confession of Mrinal Dutta. The same was admissible against them only under Section 30 of the ! ndian Evidence Act.

Section 30: It is not in dispute that apart from general evidence in regard to commission of forgery etc. , only evidence of involvement of Mamata and Babu Roy is the judicial confession made by Mrinal Dutta. The extra judicial confession made by Aloke Nath before the prosecution witnesses, as noticed hereinbefore, does not implicate these Appellants. Only in his judicial confession, Mrinal Dutta has assigned roles to these accused persons as having common intention to commit the offence ofmurder of Biswanath with Aloke Nath. Judicial confession is admissible in evidence against the maker thereof under Section 26 of the Indian Evidence Act; but against the co-accused, Section 30 will be applicable. Section 30 of the Indian Evidence Act reads thus : "30. Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession ...

I made by one of such persons affecting himself and some other of such per~ons is proved, the Court may take i~to consideration such confession as against such other person as well as against the person who makes such confession. " The expression 'the court may take into consideration such confession' is significant. It signifies that such confession by the maker as against the co-accused himself sh~uld be treated as a piece of corroborative evidence. In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra judicial confession or a judicial confession and least of all on the basis of retracted confession. What is furthermore required to be considered is that if a retracted confession itself is weak evidence, the question of conviction of a co-accused on the basis thereof would not arise. The question has been considered in State of M. P. through CBI and Ors. v. Paltan Mallah and Ors.

, [2005) 3 SCC 169, Navjot Sandhu (supra) and Sidharth (supra). In Sidhartha (supra), this Court held : '. '19. It is true that the confession made by a co-accused shall not be the sole basis for a conviction. This Court in Kashmira Singh v. State ofMP. , held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction.

In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. " In Ram Parka. ~h v. The State ofPunjab, [1959] SCR 1219, it was held: "That a voluntary and true confession made by an accused though it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue of s. 30 of the Indian Evidence Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime. The amount of credibility to be attached to a retracted confession would depend upon the circumstances of each particular case.

" It was further opined : "On the evidence in the case the confession of P was voluntary and true and was strongly corroborated in material particulars both concerning the general story told in the confession concerning the crime and the appellant's connection with crime. " [See Navjot Sandhu alias Afsan Guru (supra) and Jaswant Gir v. State of Punjab, [2005] 12 SCC 438]. We, therefore, express our inability, with respect, to agree with this part of the judgment of the learned judge. DEATH SENTENCE: Is this case an instance of 'rarest of rare cases' meriting imposition of capital sentence is now the question? What are the parameters, are there any ? Several factors are relevant. One of them being a long lapse of time [See Pa/tan Ma/lah (supra)] In Bachan Singh v. State ofPunjab, [1980] 2 SCC 684 =AIR (19801 SCC 898, a Constitution Bench dealt with the validity of death sentence and while doing so the rule of rarest of rare cases was laid down.

It was reiterated in Machhi Singh and Ors. v. State ofPunjab, (1983] 3 SCC 470. The illustrative circumstances which were laid down in the aforementioned cases are : I. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. 2. When the murder is committed for a motive which evinces total depravity and meanness; e. g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland. 3. When murder ofa member ofa Scheduled Caste or minority community, etc.

is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of "bride-burning" or "dowry deaths" or when murder is committed in order to remarry for the sake ofextracting dowry once again or to marry another woman on account of infatuation. 4. When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. 5. When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. We are, however, not oblivious of the fact that the court also should not remain unmindful to protect the injured and with that view of the matter recommend award of proper sentence having regard to the nature of offence. [See Sevaka Perumal v.

State of Tamil Nadu, AIR (1991) SC 1463] In Devender Pal Singh v. State ofNCT ofDelhi, AIR (2002) SC 1661 the death sentence was upheld by a majority of 2: 1 notwithstanding the dissenting view holding the accused to be innocent. [See also Dhananjoy Chatterjee@ Dhana v. State of West Bengal & Ors. , [2004] 9 sec 759]. We may notice that in Saibanna v. State ofKarnataka, JT (2005) 5 SC 564 = [2005] 4 SCC 165], this Court imposed death punishment in a case where the accused committed a murder while undergoing life imprisonment. Although we are not concerned with such a case, the view taken therein is doubtful. We may also notice that in Ram Anup Singh and Ors. v. State ofBihar, [2002] 6 SCC 686 and Bachittar Singh and Anr. v. State ofPunjab, [2002] 8 sec 125, this Court did not impose a death penalty although the case involved murder of a brother by another brother.

It is not necessary for us to notice a large number of decisions which are available in the reports, except a few recent decisions. In Surendra Pal Shivba/akpal v. State ofGujarat, [2005] 3 SCC 127, death sentence was not imposed in a case where the offence involved was rape with murder of a girl, stating : "13. The next question that arises for consideration is whether this is a "rarest of rare case"; we do not think that this is a "rarest of rare case" in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time ofthe occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U. P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case.

We confirm conviction of the appellant on all the counts, but the sentence of death penalty imposed on him for the offence under Section 302 IPC is commuted to life imprisonment. " Therein it was also noticed that the accused was prone to do such crime. In State of Maharashtra v. Man Singh, [2005] 3 SCC 131, the court refrained itself from awarding the capital punishment, although the offence involved was rape with murder. In Rama Subramanian v. State ofKera/a, AIR (2006) SC 639, this Court did not award a death penalty where a lady, together with her three children, was killed, despite arriving at a finding that the evidence adduced by the prosecution is very clear and convincing to prove the guilt of the Appellant, stating : "... It is true that the crime committed by the appellant is cruel and dastardly in nature and the appellant deserves no mercy. However, it may be noted that it is not known how and under what circumstances the incident had taken place on 9. 8. 1999.

the appellant was annoyed by the fact that his services were terminated without being paid any compensation despite serving his employer for quite a long period. Taking the overall facts into consideration, we do not find that this is one of the rarest of the rare cases where death sentence could be the only punishment..... " Apart from Sidharth (supra), our attention has also been drawn to a judgment ofthis Court in State ofRajasthan v. Kheraj Ram, [2003] 8 SCC 224 by Mr. Ahmad, wherein this Court, while awarding death punishment, held "35. A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state ofnature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty ofa citizen by convicting him and making him suffer a sentence of imprisonment.

Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the courtroom after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberation and the screening ofthe material by the informed man i. e. the Judge that leads to determination of, the lis. 36. The principle of proportion between crime and punishment is a principle of just deserts that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly Jess familiar or less important than the principle that only the guilty ought to be punished.

Indeed, the requirement that punishment need not be disproportionately great, which is a corollary of just deserts, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. 37. The criminal law adheres in general to the principle of proportion~lity in prescribing liability according to the culpability of each kind of criminal conduct;" lt ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably, to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence.

Sometimes the desirability of keeping him out of circulation, and sometimes even the terrific results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread. " In that case, death penalty was imposed but our endeavour here is to see that courts in the matter of sentencing act differently although the fact situation may appear to be somewhat similar. We would, however, notice that in State ofUP. v. Satish, [2005] 3 SCC 114, the same learned Judge took a similar view in a case where the High Court reversed the judgment of conviction and imposition of death sentence by the Trial Judge for commission of an offence of rape and murder of a girl aged 6 years, saying the earlier view once again.

In Navjot Sandhu@ Afsan Guru (supra), nine persons including eight security personnel and one gardener succumbed to the bullets of the terrorists and 16 persons including 13 security men received injuries as a result of storming ofthe Parliament by 5 terrorists. This Court upholding the decision of the High Court to award death penalty, observed : "The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples' representatives, constitutional functionaries and officials ·of Government of India arid engaging into a combat with security forces is a terrorist act of gravest severity. It is a classic example of rarest of rare case. " In Holiram Bordoloi v. State ofAssam, [2005] 3 SCC 793 appellant along with 17 others was convicted for murdering 4 persons by burning them alive in a hut. Death penalty was imposed on the appellant.

This Court embarked on a discussion as to the aggravating circumstances and mitigating circumstances, observing: "Pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. " A"murder is "diabolically conceived and cruelly executed", it would justify the imposition ofthe death penalty on the murderer. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why; it is not desirable to consider the circumstances of the crime and. the circumstances of the criminal in two separate watertight compartments. " This Court also affirming the death penalty, held : "Even when questioned under Section 235 (2) ofCriminal Procedure Code, the accused stated that he had nothing to say on the point of sentence. The fact that the appeUant remained silent would show that he has no repentance for the ghastly act he committed. " In Pratap Singh v.

State ofJharkhand and Anr. , [2005] 3 SCC 551, a Trade Union leader was shot dead by the appellant as a result of a Jabour dispute. This Court observed that the incident leaping to these appeals had taken place as early as I99i As there is a long lapse oftime, the court did not think that the sentence of death imposed by the Sessions Court is jitstified in the circumstances. . . In Amrit Singh. v. . State of Punjab, [2006] 11 SCALE 309, this Court while taking account ofthe available'evidence observed that it was possible for the death to have occurred because of excessive bleeding and not by strangulation as the Trial Court and High Court held. This Court also noted that there were no eye-witnesses that actually saw the commission of the offence and it was only on the basis of circumstantial evidence; that he was convicted. This Court noted that although the crime was brutal, it could not be said it was the rarest of the rare case. This Court observed : "...

He had no pre-meditation for commission of the offence. The offence may look heinous, but under no circumstances, it can be said to be a rarest ofrare cases. " Hence the sentence was commuted to one for life. In Major Singh andAn~. v. State ofPunjab, (2006) 10 SCALE 354 death Sentence was awarded to the appellant by the High Court. Appellant therein murdered the deceased on the suspicion that the deceased had murdered his wife who happened to be. the sister of the appellant. It was observed : "... considering the fact that there was probably some enmity due to ALOKE NATH DUTTA v. STATE OF WEST BENGAL [S. B. SINHA, J. ] 723 suspicion about Sukhwinder Kaur's death two years after her marriage to Kashmir Singh (deceased] which could have a motive for the crime, we reduce the sentence awarded to both the accused from death sentence to life sentence.

" However, we may also notice that recently two ladies have been awarded death penalty where the accused were systematically killing children in Renuka Bai@ Rinku@ Ratan & Anr. v. State ofMaharashtra, [2006] 7 SCC 442 : (2006) 8 SCALE 604], stating : "24. The appellants have been awarded capital punishment for committing these murders and their sentence was continued by the High Court. Going by the details of the case, we find no mitigating circumstances in favour of the appellant, except for the fact that they are women. Further, the nature of the crime and the systematic way in which each child was kidn~pped and killed amply demonstrates the depravity of the mind of the appellants. These appellants indulged in criminal activities for a very long period and continued it till they were caught by the police. They very cleverly executed their plans of kidnapping the children and the moment they were no longer useful, they killed them and threw the dead body at some deserted place.

The appellants had been a menace to the society and the people in the locality were completely horrified and they could not send their children even to schools. The appellants had not been committing these crimes under any compulsion but they took it very casually and killed all these children, least bothering about their lives or agony of their parents. 25. We have carefully considered the whole aspects ofthe case and are also alive to the new trends in the sentencing system in criminology. We do not think that these appellants are likely to be reformed... " [Emphasis supplied] In Gurmeet Singh v. State ofUttar Pradesh, [2005] 12 SCC 107 appellant and his companion Lakha Singh (who died during the course of trial proceedings) committed the murder of thirteen members of his own family. This Court observed : "All the victims were closely related to the appellant and they were .. killed in the most dastardly manner. Most ofthe victims were sleeping when they were attacked.

The appellant did not spare even the small kids with whom he had apparently no enmity. The appellant did not have even a grain of mercy or human kindness in his heart. Considering all these aspects, we do not think that this is a fit case where the death penalty is to be commuted to life imprisonment. " It is evident that different Benches had taken different views in the matter. We must remind ourselves that there has been a growing demand in the international fora that death penalty should be abolished. [See Second Optional Protocol to the International Covenants on Civil and Political Rights and the / Protocol to the American Constitution on Human Rights to abolish death penalty]. Pursuant to or in furtherance of the pressure exhorted by various international NGOs, several countries have abolished death penalty. The superior courts of several countries have been considering the said demand keeping in view the international covenants, conventions and protocol.

In 2002, the United States Supreme Court held in Atkins v. Virginia, 536 U. S. 304 (2002) that it is unconstitutional to execute defendants with mental retardation. The U. S. Supreme Court ruled 6-3 that executions of mentally retarded criminals are "cruel and unusual punishment," violating the Eighth Amendment to the Constitution. The court held : "We are not persuaded that the execution ofmentally retarded criminals will measurably advance the deterrent or the retributive purpose of ' the death penalty. " We may furthermore notice that the Privy Council recently in Reyes v. R. (2002) UKPC 11 : 12 BHRC 219], upon noticing the decision ofthe Supreme Court in Mithu v.

State ofPunjab, [1983] 2 SCR 690, observed : "In Mithu v State ofPunjab,, [1983] 2 SCR 690 the Supreme Court of India considered a provision of the Indian Criminal Code which required sentence of death to be passed on a defendant convicted of a murder committed while the offender was under sentence of imprisonment for iife. The court addressed its attention to article 21 of the Indian constitution, which protects the right to life. Certain observations made by Chandrachud CJ, at pp. 704, 707 and 713 are relevant to the present discussion: ALOKENATHDUTTA v. STATE OF WEST BENGAL [S. B. SlNHA,J. ] 725 "But, apart from that, a provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair ...

Thus, there is no justification for prescribing a mandatory sentence of death for the offence of murder committed inside or outside the prison by a person who is under the sentence of life imprisonment. A standardized mandatory sentence, of that too in the fonn of a sentence of death, fails to take into account the facts and circumstances ofeach particular case. " [See also Hughes, R v. (Saint Lucia) [2002] UKPC 12] •. In the case of Roper v. Simmons, [543 U. S. 551 (2005), at age 17, respondent planned and committed a capital murder. After he had turned 18, he was sentenced to death. His direct appeal and subsequent petitions for state and federal postconviction relief were rejected. The court held that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

The court observed that: "The overwhelming weight ofinternational opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court's determination that the penalty is disproportionate punishment for offenders under 18. The United States is the only country in the world that continues to give official sanction to the juvenile penalty. It does not lessen fidelity to the Constitution or pride in its origins to acknowledge that the express affirmation ofcertain fundamental rights by other nations and peoples underscores the centrality ofthose same rights within our own heritage of freedom. " There are some precedents of this Court e. g. Sahdeo and Ors. etc. v. State ofU. P. , [2004] 10 SCC 682- Para 9 and Sheikh Ishaqe and Ors. v. State ofBihar, [1995] 3 SCC 392, which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded.

We think, we should follow the said precedents instead and, thus, in place ofawarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthennore we do not find any special reason for awarding death penalty which is imperative. In Kishori v. State ofDelhi, [1999] I SCC 148, this Court observed: "12. It is no doubt true that the high ideals of the Constitution have to be borne in mind, but when normal life breaks down and groups of people go berserk losing balance of mind, the rationale that the ideals of the Constitution should be upheld or followed, may not appeal to them in such circumstances, nor can we expect such loose heterogeneous group of persons like a mob to be alive to such high ideals. Therefore, to import the ideas of idealism to a mob in such a situation may not be realistic.

It is no doubt true that courts must be alive and in tune with the notions prevalent in the society and punishment imposed upon an accused must be commensurate with the heinousness ofthe crime. We have elaborated earlier in the course ,,. _. of our judgment as to how mob psychology works and it is very. difficult to gauge or assess what the notions of society are in a given situation. There may be one section of society which may cry for a very deterrent sentence while another section of society may exhort upon the court to be lenient in the matter. To gauge such notions is to rely upon highly slippery imponderables and, in this case, we cannot be definite about the views of society. " [See also Ba/raj v. State ofU. P. , [1994] 4 SCC 29; and Jashubha Bharatsing Gohil and Ors. , [1994] SCC 353] Sentencing indisputably is a part of criminal jurisprudence. More importantly, in death penalty references sentencing issues requires serious deliberation.

Cases of this nature warrant objective evaluation of indicia and legal thresholds. In Union ofIndia (VO/) and Ors. v. Devendra Rai, [2006] 2 SCC 243 accused was awarded death sentence for having caused homicidal death of two army personnel and for having caused grievous injuries with the intent of causing murder of two others, in a court martial. The High Court upheld death penalty awarded. This Court, however, noticed : "8. What is culled put from the decisions noted above is that while deciding the question as to whether the extreme penalty of death sentence is to be awarded, a balance sheet of aggravating and mitigating circumstances has to be drawn up. ALOKE NATH DUTTA v. STATE OF WEST BENGAL [S. B. SINHA, J. ] 727 9. In the instant case, the High Court has not attempted to do that exercise and has come to an abrupt conclusion about the case being not covered by the rarest of rare category.

That is clearly contrary to the principles set out by this Court in the decisions noted above. We deem it appropriate to remit the matter to the High Court to consider the matter afresh and take the decision as to the appropriate sentence. The exercise has only to be limited to that aspect alone as the High Court itself has in the impugned judgment found that the conviction was well merited. " When a statute provides for death penalty, so long as the same is not ultra vires, application thereof cannot be altogether eliminated. But keeping in view the decision of the Constitution Bench of this Court, the jurisdiction 9f this Court in this behalf is limited. Death penalty can be awarded only if in the opinion of the court, the case answers the description of rarest of rare cases. What would constitute a rarest of rare cases must be determined in the fact situation obtaining in each case.

We have also noticed hereinbefore that different criteria have been adopted by different benches of this Court, although the offences are similar in nature. Because the case involved offences under the, same provision, the same by itself may not be a ground to lay down any uniform criteria for awarding death penalty or a lesser penalty as several factors therefor are required to be taken into consideration. No sentencing policy in clear cut terms has been evolved by the Supreme Court. What should we do? Does fact of this case make out the case to be one of rarest of rare cases? We are of the opinion that it does not. The manner of commission of offence may be gruesome. Biswanath was killed while he was in deep slumber, but the method applied cannot be said to be cruel. The reason for commission ofthe murder is greed ofmoney on the part of Aloke Nath which evidently arose out the result of his bad habits.

We have no doubt in our mind that he was pushed back to such a situation where he thought that he had no other option but to kill his brother. The prosecution has not brought out any. material to show that Aloke Nath had not been maintaining good relation with Biswanath. There might have difference ofopinion between the brothers in regard to the question of sale of house, but we have nothing before us to say one way or the other in this behalf. Aloke Nath was in need of money; Biswanath, an employee of a bank and being a bachelor probably did not require the same. He might have other idea e. g. he did not want to loose his place of abode. Aloke Nath had many vices, whereas Biswanath did not have any. But they had been living in the same premises for a long time. Both of them have been looking after their parents.

In fact, only it was the other brothers, namely, Amar Nath and Samar Nath had filed a suit against their mother as well as Aloke Nath and Biswanath, apprehending that their mother would bequeath the property in their favour, and, thus, excluding them from inheriting the same. We in the facts and circumstances of this case are also of the opinion that the prosecution having been failed to prove the case of conspiracy against Appellant herein, the case cannot be said to be one constituting rarest of rare cases. CONCLUSION For the reasons aforementioned, Criminal Appeal No. 867-868 of2005, as far as Shib Shankar Roy @ Babu Roy and Mamta Dutta are concerned, and Crl. Appeal No. 875 of2005 preferred by Mrinal Dutta, are allo