BISHNU PRASAD SINHA & ANR. v. STATE OF ASSAM

Citation: [2007] 1 S.C.R. 916

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

BISHNU PRASAD SINHA & ANR. v. STATE OF ASSAM.pdf

Judgment text

BISHNU PRASAD SINHA & ANR. v. STATE OF ASSAM jANUARY 16, 2007 [S. B. SINHA AND MARKANDEY KATJU, JJ. ] Penal Code, 1860: Sections 376(2)(g), 302 and 201134. Rape and murder-No eyewitnesses-Circumstantial evidence- Conviction based upon-Punishment of death sentence-Permissibility of-The deceased, a young girl aged 7 to 8 years, was travelling with her parents and younger brother in a private transport service-Accused No. I, the night chawkidar, advised them to stay in the waiting room of the travel complex for the night-At that time a bus arrived at the said Travel Comp/ex-Accused No. 2 was the 'handyman' of the said bus-While the Manager, Driver and the Conductor slept in the said bus, he did not-He was seen talking with the accused No. I-The mother ofthe deceased slept for a while but woke up as her son had cried out-She did not find the deceased child-On opening the septic tank the head ofa small child was found-During the course of investigation, the accused No.

I made a confessional statement before the Magistrate-He gave a vivid description as to how the offence was committed by him and the accused No. 2-The accused persons were convicted and sentenced to death-High Court affirmed the conviction-Validity of-Held: Accused No. I's involvement in the . offence stands proved beyond all reasonable doubts-Apart from his conduct, his confessional statement is a clear pointer to his guilt- Appellant No. 2's involvement is also proved-Their conduct, in particular the conduct ofthe accused No. I, is admissible under S. 8 ofthe Evidence Act-Conviction can be based solely on circumstantial evidence-The accused had rightly been found guilty of committing the offence-If the offence is proved by circumstantial evidence, ordinarily, death penalty ..... would not be awarded-Moreover, the accused No. I felt repentant while ·. making his statement under S. 313 Cr. P. C.

- Hence, death sentence modified to rigorous imprisonment for life-Criminal Procedure Code, : 1973, S. 313-Evidence Act, 1872, S. 30. According to the prosecution, the deceased, a young girl aged 7 to 8 f BISHNU PRASAD SINHA &ANR. v. STATE 917 ... , .. years, was travelling with her parents and younger brother in a private transport service. They reached the Travel Complex and were advised to stay over for the night. Appellant No. 1 was a night chawkidar of the waiting room ofthe said Travel Complex. He represented that they could stay there for the night and, therefore, should not have any apprehension in regard to their safety. The family went out for dinner and came back to the said waiting 1 room. The father and both his children slept. The mother ofthe deceased, however, kept on sitting. Appellant No. 1 insisted on her repeatedly that she should go to sleep stating that as the waiting room would be locked, there was nothing for her to worry about.

As she had not been sleeping, the appellant No. 1, allegedly, scolded her to do so. At that time a bus arrived at the said Travel Complex. Appellant No. 2 was the 'handyman' ofthe said bus. While the Manager, Driver and the Conductor slept in the said bus, he did not. He was seen talking with the appellant No. 1. -I The mother of the deceased slept for a while but woke up as her son had cried out. She did not find the deceased child. PW-2, the cashier of the transport service, was informed about the missing of the deceased. A complaint was lodged at the police station. A complaint was made that the. flush in the toilet was not working. PW-7 was asked by PW-2 to find out the reason therefor. He later on opened the septic tank and saw the head of a small child. He immediately reported the matter to PW-1 as well as PW-2. In the First Information Report, apart from the appellant No. 1, suspicion was raised about the involvement ofthe driver, conductor and the ,) 'handyman' (appellant No.

2) of the bus. During the course of investigation, the appellant No. 1 made a confessional statement before the Magistrate under Section 164 of the Code of Criminal Procedure, 1973. He gave a vivid description as to how the offence was committed by him and the appellant No. 2. . The appellants were charged with and convicted for commission of offences under Sections 376(2)(g), 302 and 201 read with Section 34 of the Penal Code, 1869 and sentenced to death. The High Court affirmed the conviction and sentence. Hence the appeal. . Dismissing the appeal, the Court HELD: 1. A confessional statement is admissible in evidence. It is a relevant fact. The Court may rely thereupon ifit is voluntarily given. It may also form the basis of the conviction, where for the Court may only have to satisfy itself in regard to voluntariness and truthfulness thereof and in given cases, some corroboration thereof.

A confession which is not retracted even at a later stage of the trial and even accepted by the accused in his examination under Section 313 of the Code ofCriminal Procedure, 1973 . . can be fully relied upon. (Para 33] [929-G-H, 930-A) 2. 1. Confession would not ordinarily be considered the basis for a conviction. However, this,is one ofthose rare cases where an appellant had stuck to his own confessional statements. He did not make any attempt to retract. He even did not state that it was not truthful or involuntary. [Para 35) (931-D-E) 2. 2. It is well settled that statements under Section 313 of the Code of Criminal Procedure cannot form the sole basis of conviction, but the effect thereof may be considered in the light ofother evidences brought on record. (Para 36] (931-F] Mohan Singh v. Prem Singh, [2002] 10 SCC 236; State of U. P. v. Lakshmi, (1998) 4 SCC 336; Rattan Singh v. State ofHP, (1997] 4 SCC 161; A/oke Nath Dutta v.

State of West Bengal, (2006) 13 SCALE 161; State (NCT ofDelhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SS 600 and Sidharth v. State ofBihar, (2005] 12 SCC 545, relied on. 2. 3. In a case where sufficient materials are brought on records to . II. (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 ofpersons ofa particular caste, community, or locality, are committed. (SCC p. 488, para 36) (5) When the victim of murder is an innocent child, or a ~ helpless woman or an 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. (SCC pp.

488-89, para 37) If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. (SCC .. p. 489, para 40)" 56. In State ofMP. v. Munna Choubey & Anr. , [2005] 2 SCC 710, it was observed as under : . G "Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public I= confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This I I .. ~ position was illuminatingly stated by this Court in Sevaka Perumal V. State of Tamil Naidu, [1991] 3 sec 471. " 57. In Sahdeo & Ors. v.

State of UP, [2004] 10 SCC 682, this Court opined : "As regards the sentence of death imposed on five accused persons by the sessions court, which was confirmed by the appellate court, the counsel for the appellants, Shri Sushi! Kumar submitted that in the absence of clear and convincing evidence regarding the complicity of the accused, these appellants could not be visited with the death penalty, while the counsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the common object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is no clear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus.

It is also pertinent to note that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and conductor of the bus, the failure to seize the bus and the absence of a proper 'mahzar', are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the court was not properly cross-examined regarding the nature of the injuries. Some more details could have been collected as to how the incid~nt might have happened inside the bus These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may not, in fact, have had an occasion to use the fire-arm, though they fully shared the common object of the unlawful assembly. Imposition of the death penalty on each of the five appellants may not be justified under such circumstances.

We take this view in view of the peculiar circumstances of the case and it should not be understood to mean that the accused persons are not to be convicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by I \ individual accused persons. In view ofthe nature and circumstances of the case, we commute the death sentence imposed on A-1 Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life. " 58. In Raju v. State ofHaryana, [2001] 9 SCC 50, it has been opined by this Court : "However, the next question is whether this would be a rarest '"" of rare cases where extreme punishment of death is required to be imposed. In the present case, from the confessional statement made by the accused, it would appear that there was no intention on the part of the accused to commit the murder of the deceased child.

He ' caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. It is true that learned Sessions Judge committed error in recording the evidence of SI Shakuntala, PW 15 with regard to the confessional statement made to her, but in any set of circumstances, the ~· evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty. " 59. Yet, recently in Amrit Singh v. State ofPunjab, (2006) AIR SCW 5712.

this Court, in a case where the death was not found to have been intended to be caused, was of the opinion that no case under Section 302 cf the Indian Penal Code was made out stating : " "Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to ~ be a rarest of rare cases. The manner in which the deceased was ~ raped may be brutal but it could have been a momentary lapse on ' the part of Appellant, seeing a 10nely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases. " 60. {See also Sheikh lshaque & Ors. v. State ofBihar, [1995] 3 SCC 392, Rony v. State ofMaharashtra, [1998] 3 SCC 625, Bachan Singh v. State ofPunjab, [1980] 2 SCC 684 and Machhi Singh (supra). } 61. This aspect of the matter has recently been considered at some length by this Court in Aloke Nath Dutta (supra). 62.

There is another aspect of this matter which cannot be overlooked. Appellant No. l made a confession. He felt repentant not only while making the confessional statement before the Judicial Magistrate, but also before the learned Sessions Judge in his statement under Section 313 of the Code ofCriminal Procedure. 63. It is, therefore, in our opinion, not a case where extreme death penalty should be imposed. We, therefore, are of the opinion that imposition of punishment of rigorous imprisonment for life shall meet the ends of justice. It is directed accordingly. Both the appellants, therefore, are, instead of being awarded death penalty, are sentenced to undergo rigorous imprisonment for life, but other part of sentence imposed by the learned Sessions Judge are maintained. 64. Subject to the modification in the sentence mentioned hereinbefore, this appeal is dismissed. 65. We must, before parting, however, express our appreciation for Ms.

Makhija who had rendered valuable assistance to us. v. s. s. Appeal dismissed.