Aloke Nath Dutta & Ors vs State Of West Bengal on 12 December, 2006
Aloke Nath allegedly broke down and made an extra judicial confession before them, as also Nandlal Singh and some tenants, that he had throttled Biswanath to death
16 July 2014
The said cistern was broken and dismantled. Foul smell came out therefrom and a human skeleton lying beneath the same was seen. The skeleton was said to have been identified to be that of Biswanath by Aloke Nath himself, which was seized and sent to morgue. Cause of the death, according to the autopsy report was asphyxia. Aloke Nath also made a confession leading to recovery of certain articles belonging to the deceased Biswanath from the rented premises which he had been occupying, as also a confession leading to recovery of some of the household articles
It is, however, disturbing to note that a confession has not been brought on records 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. We intend to point out that only that part of confession which is admissible would be leading to the recovery of dead body and/or recovery of articles of Biswanath, the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the court. [See State of Maharashtra v. Damu S/o Gopinath Shinde & Others (2000) 6 SCC 269 at p. 282 para 35] In Anter Singh v. State of Rajasthan [(2004) 10 SCC 657], it was stated : "11. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya v. Emperor in the following words, which have become locus classicus: (AIR p. 70, para 10) "It is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which[…]
Our attention has been drawn to a decision of this Court in Heramba Brahma and Another v. State of Assam [AIR 1982 SC 1595], wherein this Court opined : "18. We are at a loss to understand how the High Court accepted the evidence of this extra-judicial confession without examining the credentials of PW 2 Bistiram; without ascertaining the words used; without referring to the decision of this Court to be presently mentioned wherein it is succinctly stated that extra- judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed" The said decision was rendered on its own facts. A purported confession was made by the Appellant therein to another undertrial prisoner in jail. They were not known to each other. There had been no previous association between the witness and the other accused person. The court in the said factual backdrop, opined that it was highly improbable that such confession would be made-
In the case of Gagan Kanojia and Anr. v. State of Punjab [Criminal Appeal Nos. 561-62 and 563 of 2005, decided on 24.11.2006, this Court opined : "Extra-judicial confession, as is well-known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. Extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved can be relied upon by the courts
In his confession Aloke Nath takes the entire blame on himself. We are not persuaded to hold that the courts below erred in opining that extra judicial confession of Aloke Nath is in any way doubtful. On the aforementioned evidence, the involvement of Aloke Nath, in our opinion, is proved beyond any shadow of doubt-
Yet again in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 = (1984) 4 SCC 116], this Court laid down the law in the following terms : "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions
In Mousam Singha Roy and Others v. State of West Bengal [(2003) 12 SCC 377], this Court held : "27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is a`lways the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence-
Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. This Court in Shankaria v. State of Rajasthan [(1978) 3 SCC 435] stated the law thus : "22. This confession was retracted by the appellant when he was examined at the trial Under Section 313 Cr. P.C. on June 14, 1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded Under Section 164 Cr. P.C, the Court must apply a double test: (1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine quo non for its admissibility in evidence. If the confession appears to the[…
In Smt. Nandini Satpathy v. P.L. Dani and Another [AIR 1978 SC 1025], this Court stated the law thus : "57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter."
in State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru [(2005)11SCC 600] : "This Court rejected the contention advanced on behalf of the State that the two provisions, namely, Article 20(3) and Section 161, did not operate at the anterior stages before the case came to Court and the incriminating utterance of the accused, previously recorded, was attempted to be introduced. Noting that the landmark decision in Miranda v. Arizona [1966, 384 US 436] did extend the embargo to police investigation also, the Court observed that there was no warrant to truncate the constitutional protection underlying Article 20(3). It was held that even the investigation at the police level is embraced by Article 20(3) and this is what precisely Section 161 means."
The issue of evidentiary standards is a very delicate one and has a great bearing on the outcome of cases. But be it as it may, basic tenets of criminal law can not be lost sight of-
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-
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
If a public authority does not produce a document despite being called upon to do so; an adverse inference is to be drawn-
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. Hidayatullah, 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[…]
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 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 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 should 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-
It was reiterated in Machhi Singh and Others v. State of Punjab [(1983) 3 SCC 470]. The illustrative circumstances which were laid down in the aforementioned cases are : 1. 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-`-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 of a member of a 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 of extracting 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[…]
In Surendra Pal Shivbalakpal v. State of Gujarat [(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 of the 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-
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-
In Holiram Bordoloi v. State of Assam, [(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 of the 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) of Criminal Procedure Code, the accused stated that he had nothing to say on the point of sentence. The fact that the appellant remained silent would show that he has no repentance for the ghastly act he committed
22 July 2014 Start
In Gurmeet Singh v. State of Uttar 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 of the 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-
There are some precedents of this Court e.g. Sahdeo and Others etc. v. State of U.P. [(2004) 10 SCC 682- Para 9] and Sheikh Ishaqe and Others v. State of Bihar (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-
In Kishori v. State of Delhi [(1999) 1 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 of the crime"
