Supreme Court of India
ASHOK DEBBARMA @ ACHAK DEBBARMAversusSTATE OF TRIPURA
- Citation
- 2014 INSC 167
- Decided
- 4 March 2014
- Disposal
- Disposed off
- Bench
- K S RADHAKRISHNAN
Holding
The Supreme Court upheld the conviction under IPC sections 326, 436 and 302 r/w 34, found the evidence against the appellant reliable, set aside the conviction under the unconstitutional Section 27(3) of the Arms Act, and commuted the death sentence to life imprisonment plus 20 years without remission.
Summary
In 1997 a group of 30‑35 extremists set fire to houses in Jarulbachai village, Tripura, killing 15 people and injuring several others. Ashok (Achak) Debbarma was charged under IPC sections 326, 436 and 302 read with section 34 and under section 27(3) of the Arms Act; the latter charge was later set aside as unconstitutional. The trial court convicted him and sentenced him to death, a sentence affirmed by the High Court. The Supreme Court held that the eyewitness testimony, despite the absence of a test identification parade and the appellant’s omission from the Section 161 statements, was reliable and proved his participation, and that the Section 313 statements could be taken into account. However, the Court found that the appellant could not be said to have alone perpetrated the entire crime, that reasonable‑residual doubt existed, and that the "rarest of rare" test was not satisfied; consequently, the death sentence was commuted to life imprisonment with an additional 20‑year term without remission, and the conviction under the Arms Act was vacated.
Issues considered
- The admissibility of eyewitness identification without a test identification parade and despite the appellant’s non‑mention in Section 161 statements.
- Whether conviction under Section 27(3) of the Arms Act is valid after it was declared unconstitutional.
- Whether the death sentence satisfies the "rarest of rare" doctrine, applying the crime, criminal and RR tests.
- The existence of reasonable or residual doubt regarding the appellant’s sole participation in the crime.
- The effect of alleged ineffective assistance of counsel on the sentencing.
- The permissible use of statements made under Section 313 CrPC as evidence.
Legislation cited
- Arms Act, 1959s. 27(3)
- Code of Criminal Procedure, 1973s. 161, s. 232, s. 304, s. 313, s. 353(6), s. 366(1)
- Indian Evidence Act, 1872s. 138
- Indian Penal Code, 1860s. 302, s. 326, s. 34, s. 436
Subjects
murdergroup crimedeath penaltyrarest of rare doctrinereasonable doubtresidual doubttest identification paradeineffective counselArms ActSection 27(3) unconstitutionalityIPC sections 326 436 302 34life imprisonmentcapital punishmenttribal rightsextremist violence
Judgment
[2014] 4 S.C.R. 287
ASHOK DEBBARMA @ ACHAK DEBBARMA
v.
STATE OF TRIPURA
(Criminal Appeal Nos. 47-48 of 2013)
MARCH 4, 2014.
[K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]
PENAL CODE, 1860: ss.326, 436 and 302 rlw s.34 -
Murder - 30-35 members in a group set on fire a number of
houses' in a village - Shot dead 15 persons and seriously.
injured 4 persons - 11 persons charge sheeted for the
offences u/ss. 326, 436 and 302 r/w s. 34 - But charges framed
only against 5 persons - Out of them, 3 accused acquitted
for want of evidence and two accused including appellant held
guilty of charged offences - Conviction and death sentence
of appellant - On appeal, held: Courts below appreciated the
evidence of PWs regarding involvement of appellant in the
incident, including the fact that he had fired at various people,
which led to the killing of relatives of PW10 and PW13 - The
brother of PW-10 had died on the spot with bullet injuries -
His version that he had seen the appellant firing from his fire
arm remained wholly unshaken - The fact that the fire arms
were used in commission of the crime was fully corroborated
by medical evidence - PW1 O and PW13 identified the
appellant in open Court and such identification was not
shaken or contradicted - Since the appellant was known to
the witnesses and was identified by face, the fact that no Test
Identification Parade was conducted at the time of
investigation was of no consequence - The answers given by
appellant while examining him uls.313, fully corroborated the
evidence of PW10 and PW13 and, therefore, the offences
levelled against the appellant stood proved and the courts
below rightly found him guilty - Regarding sentence, courts
below put the entire elements of crime on the appellant and
287
288 SUPREME COURT REPORTS [2014] 4 S.C.R.
treated those elements as aggravating circumstances so as
to award death sentence - The crime perpetrated by a group
of people in an extremely brutal, grotesque and dastardly
manner, could not be thrown upon the appellant alone -
Appellant was a tribal, stated to be a member of the extremist
group raging war against the minority settlers, apprehending
perhaps they might snatch away their livelihood and encroach
upon their properties, and possibly such frustration and
neglect led them to take arms - Viewed in that perspective, it
is not a rarest of rare case for awarding death sentence -
Considering the gravity of the crime and the factors like
extreme social indignation, death sentence is altered to that
of imprisonment for life and the term of imprisonment as 20
years is fixed without remission, over and above the period
of sentence already undergone.
ARMS ACT, 1959: s.27(3) - Held: Was declared
unconstitutional in *State of Punjab v. Dalbir Singh.
Code of Criminal Procedure, 1973:
Test identification parade: Object of - Discussed.
s.161 - Statements made to the police during
investigation are not substantive piece of evidence and the
statements recorded u/s.161 CrPC can be used only for the
purpose of contradiction and not for corroboration - If the
evidence tendered by the witness in the witness box is
creditworthy and reliable, that evidence cannot be rejected
merely because a particular statement made by the witness
before the Court does not find a place in the statement
recorded uls.161 CrPC.
s.313 - Object of- Discussed.
CRIMINAL LAW: Reasonable doubt - Held: An accused
has a profound right not to be convicted of an offence which
is not established by the evidential standard of proof "beyond
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 289
STATE OF TRIPURA
reasonable doubt" - Law cannot afford any favourite other A
than truth and to constitute reasonable doubt, it must be free
from an overemotional response - Doubts must be actual
and substantial doubts as to the guilt of the accused persons
arising from the evidence, or from the lack of it, as opposed
to mere vague apprehensions - Criminal Courts, while B
examining whether any doubt is beyond reasonable doubt,
may carry in their mind, some "residual doubt", even though
the Courts are convinced of the accused persons' guilt beyond
reasonable doubt.
EVIDENCE ACT, 1872: s.138 - Held: s.138 specifically C
states that witness shall be first examined-in-chief, then (if the
adverse party so desires) cross-examined, then (if the party
calling him so desires) re-examined. Consequently, there is
no scope u/s. 138 to start with cross-examination of a witness,
who has not been examined-in-chief, an error committed by D
the trial Court.
SENTENCE/SENTENCING:
Death sentence - Mitigating circumstances - Counsel's E
ineffectiveness - Held: Right to get proper and competent
assistance is the facet of fair trial - It is a constitutional
guarantee conferred on the accused persons under Article
22(1) of the Constitution - When an accused challenges a
death sentence on the ground of prejudicially ineffective
F
representation of the counsel, the question is whether there
is a reasonable probability that, absent the errors, the Court
independently reweighs the evidence, would have concluded
that the balance of aggravating and .mitigating circumstances
did not warrant the death sentence - Applying the test to the
facts of this case, it cannot be said that the accused was not G
given proper legal assistance by the counsel appeared before
the trial Court as well as before the High Court.
Death sentence - Proportionality of sentence - Three
tests laid down are crime test, criminal test and RR test, not H
290 SUPRl;::ME COURT REPORTS [2014] 4 S.C.R.
A the "balancing test", while deciding the proportionality of the
sentence - To award death sentence, crime test has to be
fully satisfied and there should be no mitigating circumstance
favouring the accused, over and above the RR test.
8 The prosecution case was that an information was
received on the fateful day, that the extremists had set
on fire a number of houses at Jarulbachai village and
people had been shot dead and injured grievously.
Altogether 11 persons were charge sheeted for the
C offences under Sections 326, 436 and 302 r/w Section 34,
IPC and also Section 27(3) of the Arms Act, 1959. But
charges were framed only against 5 persons under
Sections 326, 436 and Section 302 r/w Section 34, IPC
and also Section 27(3) of the Arms Act, 1959. Out of them,
3 accused were acquitted for want of evidence and two
D accused including appellant were held guilty of charged
offences. The appellant was awarded death sentence.
The High Court set aside conviction under Section 27(3)
of the Arms Act, 1959, however, upheld conviction under
other offences and the death sentence. The instant
E appeal was filed challenging the order of the High Court.
Disposing of the appeals, the Court
HELD: 1. The High Court is right in holding that the
appellant was not guilty under Section 27(3) of the Arms
F Act, 1959, in view of the law declared in *State of Punjab
v. Dalbir Singh wherein Section 27(3) of the Arms Act
was declared unconstitutional. The facts clearly
indicated that 15 persons were brutally and mercilessly
killed and the houses of villagers with all household
G belongings and livestock were buried to ashes. PW1, an
injured person, had given a detailed picture of what had
happened on the fateful day and he was not cross-
examined by the defence. The evidence of PW1 was also
fully corroborated by PW2. PW18, the officer-in-charge
H of Police Station had visited the site since he got
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 291
STATE OF TRIPURA
information at the Camp. At about 4.00 a.m. the next day, A
he received a complaint from PW2. By the time, he had
already started investigation after getting information
from the Camp and on his personal visit to the site. In
other words, the police machinery had already been set
in motion on the basis of the information PW18 had B
already got and, it was during the course of investigation,
he had received the complaint from PW2. Though the
complaint received from PW2 was treated as the First
Information Report, the fact remained that even before
that PW18 had started investigation. Consequently, c
written information (Ex.1) received from PW2, at best,
could be a statement of PW2 made in writing to the police
during the course of investigation. Of course, it can be
treated as a statement of PW2 recorded under Section
161 Cr.P.C and the contents thereof could be used not
0
as the First Information Report, but for the purpose of
contradicting PW2. [para 11] [308-E-F; G-H; 309-A-D]
*State of Punjab v. Dalbir Singh (2012) 3 SCC 346: 2012
(4) SCR 608 - relied on.
E
2. PW20, the DSP (CID) was later entrusted with the
investigation because of the seriousness of the crime.
PW20 visited the place of occurrence and noticed that the
entire hutments were gutted by fire, 35 families were
affected by fire, 15 persons had been killed and four F
seriously injured. PW20, during investigation, received 15
post-mortem reports from the doctor-PW9 who
conducted the post-mortem on the dead bodies. PW20
had also forwarded one fire cartridge case to ballistic
expert for his opinion and, he received the expert opinion G
to the effect that it was around 7 .62 mm ammunition.
PW20 also deposed that the fire arm was AK47 rifle.
PW20 also asserted that the appellant was a person who
was known to the locality and he remained as an
absconder from the day of the occurrence. The evidence
H
292 SUPREME COURT REPORTS (2014] 4 S.C.R.
A of PW20 as well as the evidence tendered by PW9
indicated that the cartridge seized from the site was found
to be of 7.62 mm ammunition and the bullets were fired
from an automatic fire arm like SLR and, in the instant
case, the fire arm used was nothing but an AK 47 rifle.
B [para 12] (309-E-H]
3. Evidence of PWs 6, 7 and 8, Medical Officers
indicated that many of the persons, who had sustained
gunshot injuries, were treated in the hospital by them and
C they had submitted their reports which were also marked
in evidence. The fact that the fire arms were used in
commission of the crime was fully corroborated by the
evidence of PW20 read with evidence of PWs 6 to 9. [para
13] (310-B-C]
D 4. PW10 clearly stated in his deposition that the
appellant as well as the other convict (since absconding)
were firing with fire arins, due to which, his brother died
on the spot with bullet injuries. PW10 has further deposed
that there were around 30-35 members in the group, who
E had, either set fire to the huts or opened fire from their
fire arms. PW1 O, in his cross-examination, deposed that
he had stated before the police that he had seen the other
convict as well as the appellant opening the fires, which
statement was not effectively cross-examined. PW10's
F version that he had seen the appellant firing from his fire
arm remained wholly unshaken. PW10 asserted in his
cross-examination that he had stated before the police
that his brother died due to bullets fired by the appellant.
PW11 has also deposed that the extremists had killed 15
G persons, injured large number of persons and 23 houses
were gutted in fire. PW11, of course, did not name the
appellant as such, but has fully corroborated the
evidence tendered by PW10. PW11's evidence reinforced
the evidence of PW10 that the appellant was one of those
H persons who had attacked the villagers and set fire to the
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 293
STATE OF TRIPURA
houses and injured or killed large number of men, women A
and children. PW14, a resident of the locality also
corroborated the evidence of PW11. . PW13 was one of
the persons who got injured in the incident, lost both his
son and wife in the firing occurred on the fateful day.
PW13 was examined by the police on the night of the 8
incident but, of course, he did name the appellant then,
consequently, the appellant's name did not figure in the
FIR. PW13, in his evidence, deposed that his wife aged
around 30 years and his daughter aged about 5 years,
had died in the incident. PW13 deposed that the
miscreants had set fire to his house and when he wanted C
to come out of his house, 10-12 miscreants with fire arms
fired at him and he sustained injuries. PW13 identified the
accused in the Court. The trial Court and the High Court
have rightly appreciated their evidence and the
involvement of the appellant in the incident, including the D
fact that he had fired at various people, which led to the
killing of relatives of PW10 and PW13. Since the accused
persons were known ti) the witnesses and they were
identified by face, the fact that no Test Identification
Parade was conducted at the time of investigation, is of E
no consequence. The primary object of the Test
Identification Parade is to enable the witnesses to identify
the persons involved in the commission of offence(s) if
the offenders are not personally known to the witnesses.
The whole object behind the Test Identification Parade is . F
really to find whether or not the suspect is the real
offender. If the witnesses are trustworthy and reliable, the
mere fact that no Test Identification Parade was
conducted, itself, would not be a reason for discarding
the evidence of those witnesses. PW10 and PW13 have G
identified the accused in open Court which is the
substantiye piece of evidence and such identification by
the eye-witnesses has not been shaken or contradicted.
The trial Court examined in detail the oral evidence
tendered by those witnesses, which was accepted by the H
294 SUPREME COURT REPORTS (2014] 4 S.C.R.
A High Court and there was no error in the appreciation of
the evidence tendered by those witnesses. [Para 14 to 17)
[310-0-H; 311-A-F; 312-8-0, E-G]
Kanta Prashad v. Delhi Administration AIR 1958 SC 350:
1958 SCR 1218; Harbhajan Singh v. State of Jammu &
8 Kashmir (1975) 4 sec 480; Jadunath Singh and another v.
State of UP (1970) 3 SCC 518: 1971 (2) SCR 917; George
& Ors. v. State of Kera/a and Anr. (1998) 4 SCC 605: 1998
(2) SCR 303; Malkhansingh v. State of M.P. (2003) 5 SCC
746: 2003 (1) Suppl. SCR 443- relied on.
c
5. The mere fact that the appellant was not named in
the statement made before the police under Section 161
Cr.P.C. would not make the evidence of PW10 and PW13
tendered in the Court unreliable. Statements made to the
D police during investigation were not substantive piece of
evidence and the statements recorded under Section 161
CrPC can be used only for the purpose of contradiction
and not for corroboration. If the evidence tendered by the
witness in the witness box is creditworthy and reliable,
E that evidence cannot be rejected merely because a
particular statement made by the witness before the
Court does not find a place in the statement recorded
under Section 161 CrPC. PW10 lost his real brother and
PW13 lost his daughter as well as his wife and in such a
F time of grief, they would not be in a normal state of mind
to recollect who were all the miscreants and their names.
The witnesses may be knowing the persons by face, not
their names. Therefore, the mere fact that they had not 1
named the accused persons in Section 161 statement, at'
that time, that would not be a reason for discarding the
G oral evidence if their evidence is found to be reliable and
creditworthy. [para 18) [312-G-H; 313-A-D]
6. The object of Section 313 CrPC is to empower the
Court to examine the accused after evidence of the
H prosecution has been taken so that the accused is given
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 295
STATE OF TRIPURA
an opportunity to explain the circumstances which may A
tend to incriminate him. The object of questioning an
accused person by the Court is to give him an
opportunity of explaining the circumstances that appear
against him in the evidence. In the instant case, the
accused was examined in the Court by the Additional B
Sessions Judge. One of the question put to the accused
was that from the deposition of PW10, PW11, PW13, it had
come out in evidence that it was due to the firing of the
accused and his associates, some persons had
sustained severe bullet injuries, to which the answer C
given by the accused was "Yes". In other words, he has
admitted the fact that, in the incident, those persons had
sustained severe bullet injuries by the firing of the
accused and his associates. Further, for the question,
that from the· evidence of those witnesses and other
information, at that night, named victims were killed by D
the bullets of fire arms and fire; the accused kept silent.
Under Section 313 statement; if the accused admits that,
from the evidence of various witnesses, four persons
sustained severe bullet injuries by the firing by the
accused and his associates, that admission of. guilt in E
Section 313 statement cannot be brushed aside. The
answers given by the accused while examining him under
Section 31~, .fully corroborated the evidence of PW10 and
PW13 and hence the .offences levelled against the
appellant .stand proved and the trial Court and the High F
Court have rightly found him guilty for the offences under
Sections 326, 436 and 302 read with.Section 34 IPC. [Para
19, 20, 21, 23] [313-E-G; 314-F-H; 315-A-B, 613-B-C]
State of Maharashtra v. Sukhdev Singh and.Anr. (1992)
3 SCC 700: 1992(3) SCR 480; Narain Singh v. State of G
Punjab (1963) 3 SCR 678; Mohan Singh v. Prem Singh and
Anr. (2002) 10 SCC 236: 2002 (3) Suppl. SCR 5; Devender
Kumar Sing/a v. Baldev Krishan Sing/a (2004) 9 SCC 15;
Bishnu Prasad Sinha and Anr. v. State of Assam (2007) 11
SCC 467: 2007 (1) SCR 916 - relied on. H
296 SUPREME COURT REPORTS (2014] 4 S.C.R.
A ELEMENTS OF CRIME
7. He appellant alone could not have organized and
executed the entire crime. Eleven persons were originally
charge-sheeted out of 30-35 group of persons who,
according to the prosecution, armed with weapons like
8
AK47, Dao, Lathi, etc., had attacked the villagers, fired at
them and set ablaze their huts and belongings. The High
Court, while confirming the death sentence recognized
the accused as one of the "perpetrators of the crime", not
the sole, and then stated that they all acted in most cruel
C and inhuman manner and committed the offences.
Offences were committed by other so-called perpetrators
of the crime as well, but they could not be apprehended
or charge-sheeted. The appellant alone or the accused
absconding, though found guilty, were not solely
o responsible for all the elements of the crime, but other
perpetrators of the crime also, who could not be
apprehended. The Courts below put the entire elements
of crime on the accused and treated those elements as
aggravating circumstances so as to award death
E sentence, which cannot be sustained. [Para 26) [316-H;
317-A-B, D-G)
REASONABLE DOUBT AND RESIDUAL DOUBT
8. An accused has a profound right not to be
F con.victed of an offence which is not established by the
evidential standard of proof "beyond reasonable doubt".
Law cannot afford any favourite other than truth and to
·constitute reasonable doubt, it must be free from an
overemotional response. Doubts must be actual and
substantial doubts as to the guilt of the accused persons
G arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable
doubt is not an imaginary, trivial or a merely possible
doubt, but a fair doubt based upon reason and common
sense. It must grow out of the evidence in the case. [para
H 27) [317-G-H; 318-A-C]
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 297
STATE OF TRIPURA
9. In Indian criminal justice system, for recording A
guilt of the accused, it is not necessary that the
prosecution should prove the case with absolute or
mathematical certainty, but only beyond reasonable
doubt. Criminal Courts, while examining whether any
doubt is beyond reasonable doubt, may carry in their B
mind, some "residual doubt", even though the Courts are
convinced of the accused persons' guilt beyond
reasonable doubt. For instance, in the instant case, it was
pointed out that, according to the prosecution, 30-35
persons armed with weapons such as fire arms, dao, lathi c
etc., set fire to the houses of the villagers and opened fire
which resulted in the death of 15 persons, but only 11
persons were charge-sheeted and, out of which, charges
were framed only against 5 accused persons. Even out
of those 5 persons, 3 were acquitted, leaving the
0
appellant and another, who is absconding. Court, in such
circumstances, could have entertained a "residual
doubt" as to whether the appellant alone had committed
the entire crime, which is a mitigating circumstance to be
taken note of by the court, at least when the court is
considering the question whether the case falls under the E
rarest of rare category. [para 28] [318-F-H; 319-A-B]
Krishnan and another v. State represented by Inspector
of Police (2003) 7 SCC 56: 2003 (1) Suppl. SCR 771;
Ramakant Rai v. Madan Rai and Ors. (2002) 12 SCC 395 - F.
relied on.
Commonwealth v. John W Webster 5 Cush. 295, 3~0
(1850); Donald Gene Franklin v. James A. Lynaugh, Director,
Texas Department of Corrections 487 US 164 (1988) : 101
L Ed 2d 155; California v. Brown 479 U.S. 541 - referred G
to.
10. The prosecution has to prove its case beyond
reasonable doubt, but not with "absolute certainty". But,
in between "reasonable doubt" and "absolute certainty", H
298 SUPREME COURT REPORTS [2014] 4 S.C.R.
A a decision maker's mind may wander possibly, in a given
case, he may go for "absolute certainty" so as to award
death sentence, snort of that he may go for "beyond
reasonable doubt". So far as the instant case was
concerned, whether the appellant alone could have
B executed the crime single handedly, especially when the
prosecution itself says that it was the handiwork of a
large group of people. If that be so, the crime perpetrated
by a group of people in an extremely brutal, grotesque
and dastardly manner, could not have been thrown upon
c the appellant alone without charge-sheeting other group
of persons numbering around 35. All element test as well
as the residual doubt test, in a given case, may favc:>ur
the accused, as a mitigating factor. [para 31) [320~C-F]
COUNSEL'S INEFFECTIVENESS:
D
11. Right to get proper and competent assistance is
the facet of fair trial. It is a constitutional guarantee
conferred on the accused persons under Article 22(1) of
the Constitution. Section 304 Cr.P.C. provides for legal
E assistance to the accused on State expenditure. Right to
get proper legal assistance plays a crucial role in
adversarial system, since access to counsel's skill and
knowledge is necessary to accord the accused an ample
opportunity to meet the case of the prosecution. The
Court, in determining whether prejudice resulted from a
F
criminal defence counsel's ineffectiveness, must consider
the totality of the evidence. When an accused challenges
a death sentence on the ground· of prejudicially
ineffective representation of the counsel, the question is
G whether there is a reasonable probability that, absent the
errors, the Court independently reweighs the evidence,
would have concluded that the balance of aggravating
and mitigating circumstances did not warrant the death
sentence. Applying the test to the facts of this case, it
cannot be said that the accused was not given proper
H
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 299
STATE OF TRIPURA
legal assistance by the counsel appeared before the trial A
Court as well as before the High Court. There is clinching
evidence in this case of the involvement of the appellant.
The evidence tendered by the eye-witnesses is
trustworthy and. reliable. True, PW17 should not have
been subjected to cross-examination without being put B
to chief-examination. Section 138 of the Evidence Act
specifically states that witness shall be first examined-in-
ch ief, then (if the adverse party so desires) cross-
examined, then (if the party calling him so desires) re-
examined. Consequently, there is no scope under c
Section 138 of the Evidence Act to start with cross-
examination of a witness, who has not been examined-
in-chief, an error committed by the trial Court. (paras 33,
35-37) (321-D, F-G; 322-E-F; 323-C-H]
Madhav Hayawadanrao S. Hoskot v. State of D
Maharashtra (1978) 3 SCC 544: 1979 (1) SCR 192; State
of Haryana v. Darshana Devi and Ors. (1979) 2 SCC 236:
1979 (3) SCR 184; Hussainara Khatoon and Ors. (IV) v.
Home Secretary, State of Bihar, Patna (1980) 1 SCC 98:
1979 (3) SCR 532; Ranjan Dwivedi v. Union of India (1983) E
3 sec 307: 1983 (2) SCR 982 - relied on.
Charles E. Strickland, Superintendent, Florida State
Prison v. David Leroy Washington 466 US 668 (1984) -
referred to. F
12. Participation and involvement of the appellant, in
the instant crime, have been proved beyond reasonable
doubt. At the time of commission of the offence, he was
30 years of age, now 45. Facts would clearly indicate that
he is one of the members of group of extremist persons, G
waging war against the linguistic group of people in the
State of Tripura. Persons like the appellant armed with
sophisticated weapons like AK 47, attacked unarmed and
defenceless persons, which included women and
children. Prosecution has stated that the minority H
300 SUPREME COURT REPORTS [2014] 4 S.C.R.
A community in the State of Tripura is often faced with
some extremists' attacks and no leniency be shown to
such persons, at the peril of innocent people residing in
the State of Tripura. [Para 38) [324-H; 325-A-C]
13. Three tests were laid down - crime test, criminal
8
test and RR test, not the "balancing test", while deciding
the proportionality of the sentence. To award death
sentence, crime test has to be fully satisfied and there
should be no mitigating circumstance favouring the
accused, over and above the RR test. The hallmark of a
C sentencing policy, it is often said, that sufficiently guides
and attracts the Court is the presence of procedures that
require the Court to consider the circumstances of the
crime and the criminal before it recommends sentence.
It is extremely difficult to lay down clear cut guidelines or
D standards to determine the appropriate sentence to be
awarded. Even the ardent critics only criticize, but have
no concrete solution as such for laying down a clear cut
policy in sentencing. Only safeguard, statutorily and
judicially provided is to give special reasons, not merely
E "reasons" before awarding the capital punishment.
[paras 39, 40] [325-C-G]
14. Few circumstances which favoured the accused
in the instant case, to hold it as not a rarest of rare case,
F which are that the appellant alone could not have
executed such a crime, which resulted in the death of 15
persons and leaving so many injured and setting ablaze
23 houses, that is the entire elements of the crime could
not have been committed by the appellant alone. Further,
G the appellant is a tribal, stated to be a member of the
extremist group raging war against the minority settlers,
apprehending perhaps they might snatch away their
livelihood and encroach upon their properties, possibly
such frustration and neglect might have led them to take
arms, thinking they are being marginalized and ignored
H
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 301
STATE OF TRIPURA
by the society. Viewed in that perspective, this is not a A
rarest of rare case for awarding death sentence. All the
same, considering the gravity of the crime and the
factors like extreme social indignation, crimes against
innocent villagers, who are a linguistic minority, which
included women and children, it would be in the interest B
of justice to apply the principles laid down in **Swamy
Shradananada. The death sentence is altered to that of
imprisonment for life and the term of imprisonment as 20
years is fixed without remission, over and above the
period of sentence already undergone, which would meet C
the ends of justice. [paras 41, 42] [326-B-G]
Sukhwant Singh v. State of Punjab (1995) 3 SCC 367:
1995 (2) SCR 1190; Tej Prakash v. State of Haryana (1996)
7 SCC 322: 1996 (7) SCC 322; Santosh Kumar
Satisbhushan Bariyar v. State of Maharashtra (2009) 6 SCC D
498: 2009 (9) SCR 90; **Swamy Shradananada (2) v. State
of Kamataka (2008) 13 SCC 767: 2008 (11) SCR 93- relied
on.
Tahsildar Singh and another v. State of U. P. AIR 1959 E
SC 1012: 1959 Suppl. SCR 875; Shashidhar Purandhar
Hegde and another v. State of Kamataka (2004) 12 sec 492:
2004 (5 ) Suppl. SCR 536; Dana Yadav alias Oahu and
others v. State of Bihar (2002) 7 SCC 295: 2002 (2) Suppl.
SCR 363; Shamu Balu Chaugule v. State of Maharashtra F
(1976) 1 SCC 438; S. Harnam Singh v. State (Delhi Admn)
(1976) 2 SCC 819: 2009 (7) SCR 653; Ranvir Yadav v.
State of Bihar (2009) 6 SCC 595; Hate Singh Bhagat Singh
v. State of Madhya Bharat AIR 1953 SC 468 - referred to.
Case Law Reference: G
1959 Suppl. SCR 875 referred to Para 7
2004 (5) Suppl. SCR536 referred to Para 7
2002 (2) Suppl. SCR 363 referred to Para 8 H
i '
302 SUPREME COURT REPORTS [2014] 4 S.C.R.
A (1976) 1 sec 438 referred to Para 8
(2009) 6 sec 595 referred to Para 8
AIR 1953 SC 468 referred to Para 8
2012 (4) SCR 608 relied upon Para 11
B
1958 SCR 1218 relied upon Para 16
(1975) 4 sec 480 relied upon Para 16
1971 (2) SCR 917 relied upon Para 16
c 1998 (2) SCR 303 relied upon Para 16
2003 (1) Suppl. SCR 443 relied upon Para 17
1992 (3) SCR 480 relied upon Para 21
D (1963) 3 SCR 678 relied upon Para 21
2002 (3) Suppl. SCR 5 relied upon Para 22
(2004) 9 sec 15 relied upon Para 22
E 2007 (1) SCR 916 relied upon Para 22
2003 (1) Suppl. SCR 771 relied upon Para 27
c2002) 12 sec 395 relied upon Para 27
1979 (1) SCR 192 relied upon Para 33
F
1979 (3) SCR 184 relied upon Para 33
1979 (3) SCR 532 relied upon Para 33
1983 (2) SCR 982 relied upon Para 33
G 1995 (2) SCR 1190 relied upon Para 37
1996 (7) sec 322 relied upon Para 37
2009 (9) SCR 90 relied upon Para 40
H 2008 (11) SCR 93 relied upon Para 41
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 303
STATE OF TRIPUR/~,
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
No. 4 7-48 of 2013.
From the Judgment & Order dated 05.09.2012 of the High
Court of Gauhati Bench at Agartala in Criminal Reference No.
2 of 2005 and Criminal Appeal (J) No. 94 of 2005.
B
Venkita Subramoniam T.R., for the Appellant.
Gopal Singh, Ritu Raj Biswas for the Respondent.
The Judgment of the Court was delivered by
c
K.S. RADHAKRISHNAN, J. 1. We are, in this case,
concerned with a tragic incident in which a group of Armed
Extremists at Jarulbachai village in the night of 11.2.1997, set
fire to twenty houses belonging to a group of linguistic minority
community of Bengal settlers, in which 15 persons lost their D
lives, which included women and children and causing
extensive damage to their properties.
2. The Takarajala Police Station, West Tripura got
information about the incident at about 11.00 p.m. on 11.2.1997 E
from Jarullabachai DAR Camp stating that extremists had set
on fire a number of houses at Jarulbachai village and that the
people had been shot dead and injured grievously. Information
so received was entered into the General Diary at the
Takarajala Police Station in the form of Entry No.292 dated
F
11.2.1997. PW18 (Officer-in-Charge) of Takarajala Police
Station visited the Jarullabachai DAR Camp, cordoned off the
area, and conducted search. Most of the houses of the village
were found gutted by fire. On the very night of the occurrence,
as many as 13 dead bodies were found lying at various places
and three persons were found lying injured. A formal written G
information, as regards the occurrence, was received by the
investigating officer from one Gauranga Biswas (PW2) from the
place of occurrence. Based on the written information, which
was so received at the place of occurrence, Takarajala Police
H
304 SUPREME COURT REPORTS [2014] 4 S.C.R.
A Station Case No.12/97 under Sections 148/149/302/326/307I
436 IPC read with Section 27(3) of the Arms Act, 1959 was
registered. Later, more number of dead bodies were found and
number of dead persons increased to 15, so also the number
of injured persons. Dead bodies as well as injured persons
B were taken to GB Hospital at about 4.00 p.m. on 12.2.1997.
Inquests were held on the dead bodies and post-mortem
examinations were also conducted. PW.18, the Investigating
Officer, seized vide seizure list (Ex.11 ), two empty cartridges
and some ashes from the place of occurrence. Looking at the
c serious nature of the evidence, investigation was handed over
to the Criminal Investigation Department (CID) and PW20 (a
DSP) was entrusted with the investigation.
3. PW20, on completion of the investigation, filed a
charge-sheet under Sections 148/149/302/326/307/436 IPC
D read with Section 34 IPC and 27(3) of the Arms Act, 1959 read
with Section 34 IPC against 11 persons, including (1) Rabi Deb
Barma, (2) Gandhi Deb Barma, (3) Mantu Deb Barma, (4)
Sambhuram Deb Barma, (5) Budhraj Deb Barma. Charge-
sheet was also filed against some other accused, who were
E found absconding, namely, (1) Subha Deb Barma, (2) Sandhya
Deb Barma, (3) Samprai Deb Barma, (4) Falgoon Deb Barma,
(5) Bijoy Deb Barma, (6) Budh Deb Barma, (7) Mangal Deb
Barma, (8) Sankar Deb Barma, (9), Kaphur Deb Barma, (10)
Sandhyaram Deb Barma alias Phang and (11) Ashok Deb
F Barma (i.e. the Appellant herein). Out of the 11 persons named
in the charge-sheet, chargers were framed against five persons
under Sections 326, 436 and 302 read with Section 34 IPC
and also Section 27(3) of the Arms Act, 1959 read with Section
34 IPC, which included the Appellant herein. All the above-
G mentioned persons pleaded not guilty and claimed to be tried.
4. The prosecution, in order to establish its case,
examined 20 witnesses. Two accused persons, namely, Gandhi
Deb Barma and Ashok Deb Barma alias Ashok Achak (i.e. the
Appellant herein) were examined under Section 313 CrPC
H
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 305
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
and, in their examinations, they denied to have committed the A
alleged offences. Due to want of evidence, the trial Court
acquitted three persons vide its order dated 23.4.2005 under
Section 232 CrPC and only two accused persons, namely,
Gandhi Deb Barma and the Appellant herein were called upon
in terms of Section 232 CrPC to enter on their defenc~ and, B
accordingly, the defence adduced evidence by examining two
witnesses.
5. The Additional Sessions Judge, West Tripura, Agartala,
having found the Appellant and Gandhi Deb Barma guilty of the
offences under Sections 326, 436 and 302 read with Section C
34 IPC and also Section 27(3) of the Arms Act, 1959 read with
Section 34 IPC, declared both the accused guilty of the offences
aforementioned and convicted them accordingly vide judgment
dated 7.11.2005, on which date Gandhi Deb Barma was
absent since he was absconding. Judgment was, therefore, D
pronounced by the Sessions Judge in the absence of the co-
accused in terms of Section 353(6) CrPC. The Additional
Sessions Judge then on 10.11.2005, after hearing the
prosecution as well as the accused on the question of sentence,
passed an order sentencing the Appellant to death on his E
conviction under Sections 148/149/302/326/307/436 IPC read
with Section 27(3) of the Arms Act, 1959.
6. The Additional Sessions Judge in terms of provisions
contained in Section 366 (1) CrPC referred the matter to the
F
High Court for confirmation of death sentence awarded to the
Appellant, which was numbered as Criminal Reference No.02/
2005. The Appellant also preferred Criminal Appeal (J) 94/
2005. Both the Appeals as well as the Reference were heard
by the High Court. The High Court vide its judgment and order
dated 5.9.2012 set aside the conviction of the Appellant under G
Section 27(3) of the Arms Act, 1959. However, the death
sentence under Section 302 IPC read with Section 34 IPC, in
addition to the sentence passed for offence under Sections 326
and 436 read with Section 34 IPC, was sustained, against
which these Appeals have been preferred. H
306 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 7. Shri T.R. Venkita Subramoniam, learned counsel
appearing for the Appellant, submitted that the prosecution has
miserably failed to establish beyond reasonable doubt the
involvement of the Appellant in the incident in question. Learned
counsel pointed out that even though 20 witnesses were
B examined, only two witnesses viz. PW10 and PW13 in their
deposition in the Court had mentioned the name of the
Appellant, which is nothing but an improvement of the
prosecution case, especially when the Appellant was not
named in the FIR. Learned counsel also pointed out that PW10
C and PW13 had not mentioned the name of the Appellant in their
statements made to the Police under Section 161 CrPC.
Learned counsel placed reliance on the judgment ofthis Court
in Tahsildar Singh and another v. State of U.P. AIR 1959 SC
1012 and Shashidhar Purandhar Hegde and another v. State
of Karnataka (2004) 12 SCC 492 and submitted that the
D omission to mention the name of the Appellant in the FIR as
well as in the Section 161 statement was a significant omission
which may amount to contradiction and the evidence of those
witnesses should not have been relied upon for recording
conviction.
E
8. Learned counsel also pointed out that the prosecution
completely erred in not conducting the Test Identification Parade.
Consequently, no reliance could have been placed on the
statement of witnesses stating that they had seen the Appellant
F participating in the incident. Placing reliance on the judgment
of this Court in Dana Yadav alias Oahu and others v. State of
Bihar (2002) 7 sec 295, learned counsel pointed out that
ordinarily if the accused is not named in the FIR, his
identification by the witnesses in Court should not be relied
G upon. Learned counsel also submitted that the High Court has
committed an error in taking note of the fact that the Appellant
was absconding immediately after the incident. Such a
presumption should not have been drawn by the Court,
especially when the question regarding abscondance was not
H put on the Appellant in the statement recorded while examining
ASHOK DEBBARMA @ ACHAK OEBBARMA v. 307
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
him under Section 313 CrPC. Learned counsel placed reliance A
on the judgment of this Court in Shamu Batu Chaugule v. State
of Maharashtra (1976) 1 SCC 438, S, Harnam Singh v. State
(Delhi Admn.) (1976) 2 SCC 819, Ranvir Yadav v. State of
Bihar (2009) 6 SCC 595 and Hate Singh Bhagat Singh v.
State of Madhya Bharat AIR 1953 SC 468. Learned counsel B
submitted that, in any view, this is not a case which falls in the
category of rarest of rare case warranting capital punishment.
9. Learned counsel submitted that the appellant is a tribal
coming from lower strata ofthe society, totally alienated from
the main stream of the society and such extremist's upsurge C
might have occurred due to neglect and frustration. Further, it
was pointed out that, seldom, people like the appellant get
effective legal assistance and while applying the RR test, the
question whether the appellant had got proper legal assistance,
should also be examined. Learned counsel, after referring to D
few judgments of the U.S. Supreme Court, submitted that the
Court, while considering the question of death sentence, should
also examine whether there is any "residual doubt" over the guilt
of the .accused.
E
10. Shri Gopal Singh, learned counsel for the State,
highlighted the manner in which the entire operation was
executed by a mob consisting of 30 to 35 persons. Learned
counsel submitted that they mercilessly fired at women and
children and others with latest arms and ammunitions by killing
F
as many as 15 persons, leaving large number of persons
injured. Learned counsel pointed out that they set ablaze
various huts in which poor and illiterate persons were living.
Many of the persons who participated in the incident were
known to the locals and the prosecution has examined as many
as 20 witnesses.• of which the evidence tendered by PW1 O and G
PW13 was very crucial so far as the involvement of the
Appellant is concerned. Learned counsel pointed out that the
Courts have rightly believed the evidence of the above-
mentioned witnesses and the mere fact that the Appellant's
H
308 SUPREME COURT REPORTS (2014] 4 S.C.R.
A name did not figure in the initial complaint or in the statement
under Section 161 CrPC would not absolve him from the guilt,
since the involvement of the appellant has been proved beyond
reasonable doubt. Learned counsel also submitted that there
is no necessity of conducting the Test Identification Parade
B since the accused persons were known to the witnesses.
Learned counsel also submitted that all relevant incriminating
questions were put by the Court to the accused while he was
examined under Section 313 CrPC and the answers given by
the accused would be sufficient to hold him guilty of the charges
C levelled against him. Learned counsel also submitted that both
the trial Court as well as the High Court have correctly
appreciated the oral and documentary evidence adduced and
the Court rightly awarded death sentence, which falls under the
category of rarest of rare case.
D 11. We may indicate that though the trial Court as well as
the High Court have found that both Gandhi Deb Barma and
the Appellant were guilty of the various offences levied against
them, we are in this case concerned with the Appeal filed by
Ashok Deb Barma, who has also been awarded death
E sentence by the trial Court, which was confirmed by the High
Court. At the outset, we may point out that the High Court is
right in holding that the Appellant is not guilty under Section
27(3) of the Arms Act, 1959, in view of the law declared by this
Court in State of Punjab v. Dalbir Singh (2012) 3 SCC 346,
F wherein this Court held that Section 27(3) of the Arms Act is
unconstitutional. The fact that such dastardly acts referred to
earlier were committed in the Jarulbachai village in the night
of 11.2.1997, is not disputed. The question that we are called
upon to decide is with regard to the complicity of the accused/
G Appellant, who was found guilty by the trial Court as well as by
the High Court. The facts would clearly indicate that, in this case,
15 persons were brutally and mercilessly killed and the houses
of villagers with all household belongings and livestock were
buried to ashes. PW1, an injured person, had given a detailed
H picture of what had happened on the fateful d:ay and he was
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 309
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
not cross-examined by the defence. The evidence of PW1 was A
also fully corroborated by PW2. PW18, the officer-in-charge of
Takarajala Police Station, West Tripura, as already indicated,
had visited the site since he got information at the Jarullabachai
DAR Camp. At about 4.00 a.m. the next day, he had received
the complaint from PW2, by the time, he had already started B
investigation after getting information from Jarullabachai DAR
Camp and on his personal visit to the site. In other words, the
police machinery had already been set in motion on the basis
of the information PW18 had already got and, it was during the
course of investigation, he had received the complaint from c
PW2. Though the complaint received from PW2 was treated ·
as the First Information Report, the fact remains that even
before that PW18 had started investigation. Consequently,
written information (Ex.1) received from PW2, at best, could be
a statement of PW2 made in writing to the police during the o
course of investigation. Of course, it can be treated as a
statement of PW2 recorded under Section 161 Cr.P.C and the
contents thereof could be used not as the First Information
Report, but for the purpose of contradicting PW2.
12. PW20, the DSP (CID), as already indicated, was later E
entrusted with the investigation because of the seriousness of
the crime. PW20 visited the place of occurrence and noticed
that the entire hutments were gutted by fire, 35 families were
affected by fire, 15 persons had been killed and four seriously
injured. PW20, during investigation, received 15 post-mortem F
reports from Dr. Pijush Kanti Das of IGM Hospital (PW9), who
conducted the post-mortem on the d~ad bodies. PW20 had
also forwarded on 29.4.2011 one fire cartridge case to ballistic
expert for his opinion and, on 19.5.1997, he received the expert
opinion of the same date to the effect that it was around 7.62 G
mm ammunition. PW20 has also deposed that the fire arm was
AK47 rifle. PW20 has also asserted that,the Appellant was a
person who was known to the locality and he remained as an
absconder from the day of the occurrence. The evidence of
PW20 as well as the evidence tendered by PW9 would clearly H
310 SUPREME COURT REPORTS (2014) 4 S.C.R.
A indicate that the cartridge seized from the site was found to be
of 7.62 mm ammunition and the bullets were fired from an
automatic fire arm like SLR and, in the instant case, the fire
arm used was nothing but an AK 47 rifle.
8 13. Evidence of PWs6, 7 and 8, Medical Officers posted
in G.B. Hospital at Agartala, would indicate that many of the
persons, who had sustained gunshot injuries, were treated in
the hospital by them and they had submitted their reports which
were also n:iarked in evidence. The fact that the fire arms were
C used in commission of the crime was fully corroborated by the
evidence of PW20 read with evidence of PWs 6 to 9.
14. We may now refer to the crucial evidence of some of
the witnesses who had stated the involvement of the Appellant
in the instant case. PW10 has clearly stated in his deposition
D that the .accused as well as Gandhi Deb Barma (since
absconding) were firing with fire arms, due to which, his brother
died on the spot with bulletinjuries. PW10 has further deposed
that there were around 30-35 members in the group, who had,
either set fire to the huts or opened fire from their fire arms.
E PW10, in his cross~examination, deposed that he had stated
before the police that he had seen Gandhi Deb Barma as well
as the Appellant opening the fires, which statement was not
effectively cross-examined. PW1 O's version that he had seen
the Appellant firing from his fire arm remained wholly unshaken.
F PW1 O asserted in his cross-examination that he had stated
before the police that his brother died due to bullets fired by
the Appellant. PW11 has also deposed that the extremists had
killed 15 persons, injured large number of persons and 23
houses were gutted in fire. PW11, of course, did not name the
G appellant as such, but has fully corroborated the evidence
tendered. by PW10. PW11's evidence reinforces the evidence
of PW10 that the Appellant is one of those persons who had
attacked the villagers and set fire to the houses and injured or
killed large number of men, women and children. PW14, a
H resident of the locality, has also corroborated the evidence of
PW11.
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 311
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
15. PW13 is one of the persons who got injured in the A
incident, lost both his son and wife in the firing occurred on the
fateful day. PW13, it is reported, was examined by the police
on the night of the incident but, of course, he did name the
appellant then, consequently, the appellant's name did not figure
in the FIR. PW13, in his evidence, deposed that his wife, B
Saraswati, aged around 30 years and his daughter, Tulshi
aged about 5 years, had died in the incident. PW13 deposed
that the miscreants had set fire to his house and when he
wanted to come out of his house, 10-12 miscreants with fire
arms fired at him and he sustained injuries. PW13 identified c
the accused in the Court.
16. We have gone through the oral evidence of PW10 and
PW13 and, in our view, the trial Court and the High Court have
rightly appreciated their evidence and the involvement of the
Appellant in the above incident, including the fact that he had
0
fired at various people, which led to the killing of relatives of
PW10 and PW13. We are of the view that since the accused
persons were known to the witnesses and they were identified
by face, the fact that no Test Identification Parade was
conducted at the time of investigation, is of no consequence. E
The primary object of the Test Identification Parade is to enable
the witnesses to identify the persons involved in the commission
of offence(s) if the offenders are not personally known to the
witnesses. The whole object behind the Test Identification
Parade is really to find whether or not the suspect is the real F
offender. In Kanta Prashad v. Delhi Administration AIR 1958
SC 350, this Court stated that the failure to hold the Test
Identification Parade does not make the evidence of
identification at the trial inadmissible. However, the weight to
be attached to such identification would be for the Court to G
decide and it is prudent to hold the Test Identification Parade
with respect to witnesses, who did not know the accused before
the occurrence. Reference may also be made to the judgment
· of this Court in Harbhajan Singh v. State of Jammu & Kashmir
.(1975) 4 SCC 480, Jadunath Singh and another v. State of H
312 SUPREME COURT REPORTS [2014] 4 S.C.R.
A UP (1970) 3 SCC 518 and George & others v. State of Kera/a
and another (1998) 4 sec 605.
17. Above-mentioned decisions would indicate that while
the evidence of identification of an accused at a trial is
admissible as substantive piece of evidence, would depend on
8
, the facts of a given case as to whether or not such a piece of
evidence can be relied upon as the sole basis of conviction of
an accused. In Malkhansingh v. State of M.P. (2003) 5 sec
746, this Court clarified that the Test Identification Parade is
not a substantive piece of evidence and to hold the Test
C Identification Parade is not even the rule of law, but a rule of
prudence so that the identification of the accused inside the
Court room at the trial, can be safely relied upon. We are of
the view that if the witnesses are trustworthy and reliable, the
mere fact that no Test Identification Parade was conducted,
D itself, would not be a reason for discarding the evidence of
those witnesses. This Court in Dana Yadav alias Dahu (supra)
has examined the points on the law at great length and held
that the evidence of identification of an accused in Court by a
witness is substantive evidence, whereas identification in Test
E Identification Parade is, though a primary evidence, but not
substantive one and the same can be used only to corroborate
the identification of the accused by witness in the Court. So far
as the present case is concerned, PW10 and PW13 have
identified the accused in open Court which is the substantive
F piece of evidence and such identification by the eye-witnesses
has not been shaken or contradicted. The trial Court examined
in detail the oral evidence tendered by those witnesses, which
was accepted by. the High Court and we find no error in the
appreciation of the evidence tendered by those witnesses.
G
18. The mere fact that the Appellant was not named in the
statement made before the police under Section 161 CrPC
and, due to this omission, the evidence of PW10 and PW13
tendered in the Court is unreliable, cannot be sustained.
Statements made to the police during investigation were not
H
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 313
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
substantive piece of evidence and the statements recorded A
under Section 161 CrPC can be used only for the purpose of
contradiction and not for corroboration. In our view, if the
evidence tendered by the witness in the witness box is
creditworthy and reliable, that evidence cannot be rejected
merely because a particular statement made by the witness B
before the Court does not find a place in the statement
recorded under Section 161 CrPC. Police officer recorded
statements of witnesses in an incident where 15 persons lost
their lives, 23 houses were set ablaze and large number of
persons were injured. PW10 lost his real brother and PW13 C
lost his daughter as well as his wife and in such a time of grief,
they would not be in a normal state of mind to recollect who
were all the miscreants and their names. The witnesses may
be knowing the persons by face, not their names. Therefore,
the mere fact that they had not named the accused persons in
Section 161 statement, at that time, that would not be a reason D
for discarding the oral evidence if their evidence is found to be
reliable and creditworthy.
19. Learned counsel appearing for the accused has raised
the question that incriminating questions were not put to the E
accused while he was examined under Section 313 CrPC. The
object of Section 313 CrPC is to empower the Court to
examine the accused after evidence of the prosecution has
been taken so that the accused is given an opportunity to
explain the circumstances which may tend to incriminate him. F
The object of questioning an accused person by the Court is
to give him an opportunity of explaining the circumstances that
appear against him in the evidence. In the instant case, the
accused was examined in the Court on 23.4.2005 by the
Additional Sessions Judge, West Tripura, Agartala, which, inter G
a/ia, reads as follows :-
Question : It transpires from the evidence of PW No.10,
11 and 13 that they had recognized you
amongst the extremists. Is it true?
H
314 SUPREME COURT REPORTS [2014) 4 S.C.R.
A Answer : False.
Question : It transpires from the evidence of the above
witnesses that Dulal, Ajit, Saraswati and
Hemender sustained severe bullet injuries by
the firing of you and your associates?
B
What do you get to say regarding this?
Answer: Yes
Question : It is evident from the evidence of these
c witnesses and other information that at that
night Sachindra Sarkar, Archana Garkar,
Dipak Sarkar, Gautam Sarkar, Shashi
Sarkar, Prosenjit Sarkar, Saraswati Biswas,
Tulsi Biswas, Narayan Das, Mithu Das, Situ
D Das, Khelan Sarkar, Sujit Sarkar, Bipul
Sarkar and Chotan Sarkar were killed by the
bullets of fire arms and fire.
What do you get to say regarding this?
E
Answer : ................... (Blank).
20. The second question put to the accused was that, from ·
the deposition of PW10, PW11, PW13, it had come out in
evidence that it was due to the firing of the accused and his
F associates, Dulal, Ajit, Saraswati and Hemender had sustained
severe bullet injuries, to which the answer given by the accused
was "Yes". In other words, he has admitted the fact that, in the
incident, Dulal, Ajit, Saraswati and Hemender had sustained
severe bullet injuries by the firing of the accused and his
G associates. Further, for the question, that from the evidence of
those witnesses and other information, at that night, Sachindra
Sarkar, Archana Garkar, Dipak Sarkar, Gautam Sarkar, etc.
were killed by the bullets of fire arms and fire, the accused kept
silent.
H
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 315
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
21. We are of the view that, under Section 313 statement, A
if the accused admits that, from the evidence of various
witnesses, four persons sus.tained severe bullet injuries by the
firing by the accused and his associates, that admission of guilt
in Section 313 statement cannot be brushed aside. This Court
in State of Maharashtra v. Sukhdev Singh and another (1992) B
3 sec 700 held that since no oath is administered to the
accused, the statement made by the accused under Section
313 CrPC will not be evidence stricto sensu and the accused,
of course, shall not render himself liable to punishment merely
on the basis of answers given while he was being examined c
under Section 313 CrPC. But, Sub-section (4) says that the
answers given by the accused in response to his examination
under Section 313 CrPC can be taken into consideration in
such an inquiry or trial. This Court in Hate Singh Bhagat Singh
(supra) held that the answers given by the accused under
0
Section 313 examination can be used for proving his guilt as
much as the evidence given by the prosecution witness. In
Narain Singh v. State of Punjab (1963) 3 SCR 678, this Court
held that when the accused confesses to the commission of the
offence with which he is charged, the Court may rely upon the E
confession and proceed to convict him.
22. This Court in Mohan Singh v. Prem Singh and
another (2002) 10 sec 236 held that the statement made in
defence by accused under Section 313 CrPC can certainly be
taken aid of to lend credence to the evidence led by the F
prosecution, but only a part of such statement under Section
313 CrPC cannot be made the sole basis of his conviction. In
this connection, reference may also be made to the judgment
of this Court in Devender Kumar Sing/a v. Baldev Krishan
Sing/a (2004) 9 SCC 15 and Bishnu Prasad Sinha and G
another v. State of Assam (2007) 11 SCC 467. The above-
mentioned decisions would indicate that the statement of the
accused under Section 313 CrPC for the admission of his guilt
or confession as such cannot be made the sole basis for finding
the accused guilty, the reason being he is not making the H
316 SUPREME COURT REPORTS [2014] 4 S.C.R.
A statement on oath, but all the same the confession or admission
of guilt can be taken as a piece of evidence since the same
lends credence to the evidence led by the prosecution.
23. We may, however, indicate that the answers given by
B the accused while examining him under Section 313, fully
corroborate the evidence of PW1 O and PW13 and hence the
offences levelled against the Appellant stand proved and the
trial Court and the High Court have rightly found him guilty for
the offences under Sections 326, 436 and 302 read with
Section 34 IPC.
c
24. We shall now consider whether this is one of the rarest
of rare case, as held by the trial Co1Jrt and affirmed by the High
Court, so as to award death sentence to the accused.
D 25. In this case, altogether 11 persons were ctiarge-
sheeted for the offences under Sections 326, 436 and 302 read
with Section 34 IPC and also Section 27(3) of the Arms Act,
1959 read with Section 34 IPC, but charges were framed only
against 5 persons under Sections 326, 436 and 302 read with
E Section 34 IPC and also Section 27(3) of the Arms Act, 1959
read with Section 34 IPC. For want of evidence, three accused
persons Budhrai Deb Barma, Mantu Deb Barma and
Subhuram Deb Barma were acquitted on 23.4.2005 under
Section 232 CrPC and only two accused persons, Appellant
F and Gandhi Deb Barma were called upon in terms of Section
232 CrPC to enter on their defence. Out of 11 accused, we are
left with only two accused persons who were found guilty, out
of whom Gandhi Deb Barma is now absconding, hence, we are
concerned only with the Appellant. We will first examine whether
the appellant was solely responsible for all the elements of
G crime.
ELEMENTS OF CRIME
26. Appellant alone could not have organized and executed
H the entire crime. Eleven persons were originally charge-sheeted
ASHOK DEBBARMA @ ACHAK DEBBARMA-·· v. 317
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
out of 30-35 group of persons who, according to the A
prosecution, armed with weapons like AK47, Dao, Lathi, etc.,
had attacked the villagers, fired at them and set ablaze their .
huts and belongings. The High Court while affirming the death
sentence, stated as follows:
B
"The perpetrators of the crime, including the present
appellant, acted in most cruel and inhuman manner and
murders were committed in extremely brutal, grotesque
and dastardly manner, which is revolting and ought to be
taken to have vigorously shaken the collective conscience
of the society. The. victims, all innocent, were helpless when C
they were put to death or grievously injured or when their
houses and belongings were burnt to ashes. The case at
hand, therefore, squarely falls in the category of 'rarest of
rare cases', where death penalty could be the only
adequate sentenee." D
The High Court, therefore, while confirming the death
sentence recognized the accused as one of the "perpetrators
of the crime", not the sole, and then stated that they all acted in
most cruel and inhuman manner and committed the offences. E
Offences were committed by other so-called perpetrators of the
crime as well, but they could not be apprehended or charge-
sheeted. Appellant alone or the accused absconding, though
found guilty, are not solely responsible for all the elements of
the crime, but other perpetrators of the crime also, who could F
not be apprehended. The Courts below put the entire elements
of crime on the accused and treated those elements as
aggravating circumstances so as to award death sentence,
which cannot be sustained.
REASONABLE DOUBT AND RESIDUAL DOUBT G
27. An accused has a profound right not to be convicted
of an offence which is not established by the evidential standard
of proof "beyond reasonable doubr. This Court in Krishnan and
· another v. State represented by Inspector of Police (2003) 7 H
318 SUPREME COURT REPORTS [2014] 4 S.C.R.
A sec 56, held that the doubts would be called reasonable if they
are free from a zest for abstract speculation. Law cannot afford
any favourite other than truth and to constitute reasonable doubt,
it must be free from an overemotional response. Doubts must
be actual and substantial doubts as to the guilt of the accused
B persons arising from the evidence, or from the lack of it, as
opposed to mere vague apprehensions. A reasonable doubt
is not an imaginary, trivial or a merely possible doubt, but a fair
doubt based upon reason and common sense. It must grow out
of the evidence in the case. In Ramakant Rai v. Madan Rai
c and others (2002)12 sec 395, the above principle has been
reiterated.
28. In Commonwealth v. John W Webster 5 Cush. 295,
320 (1850), Massachusetts Court, as early as in 1850, has
explained the expression "reasonable doubt" as follows:
0
"Reasonable doubt ... is not a mere possible doubt;
because everything relating to human affairs, and
depending on moral evidence, is open to some possible
or imaginary doubt. It is that state of the case which, after
E the entire comparison and consideration of all the
evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction."
In our criminal justice system, for recording guilt of the
accused, it is not necessary that the prosecution should prove
F the case with absolute or mathematical certainty, but only beyond
reasonable doubt. Criminal Courts, while examining whether any
doubt is beyond reasonable doubt, may carry in their mind,
some "residual doubt", even though the Courts are convinced
of the accused persons' guilt beyond reasonable doubt. For
G instance, in the instant case, it was pointed out that, according
to the prosecution, 30-35 persons armed with weapons such
;:is fire aims, dao, lathi etc., set fire to the houses of the villagers
and opened fire which resulted in the death of 15 persons, but
only 11 persons were charge-sheeted and, out of which,
H charges were framed only against 5 accused persons. Even out
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 319
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
of those 5 persons, 3 were acquitted, leaving the appellant and A
another, who is absconding. Court, in such circumstances,
could have entertained a "residual doubt" as to whether the
appellant alone had committed the entire crime, which is a
mitigating circumstance to be taken note of by the court, at least
when the court is considering the question whether the case falls B
under. the rarest of rare category.
29. 'Residual doubt' is a mitigating circumstance,
sometimes, used and urged before the Jury in the United States
and, generally, not found favour by the various Courts in the C
United States. In Donald Gene Franklin v. James A. Lynaugh,
Director, Texas Department of Corrections 487 US 164 (1988)
: 101 L Ed 2d 155, while dealing with the death sentence, held
as follows:,
"Petitioner also contends that the sentencing procedures D
followed in his case prevented the jury from considering,
in mitigation of sentence, any "residual doubts" it might
have had about his guilt. Petitioner uses the phrase
"residual doubts" to refer to doubts that may have lingered
in the minds of jurors who were convinced of his guilt E
beyond a reasonable doubt, but who were not absolutely
certain of his guilt. Brief for Petitioner 14. The plurality and
dissent reject petitioner's "residual doubt" claim because
they conclude that the special verdict questions did not
prevent the jury from giving mitigating effect to its "residual F
doubt[s]" about petitioner's guilt. See ante at 487 U. S.
175; post at 487 U. S. 189. This conclusion is open to
question, however. Although the jury was permitted to
consider evidence presented at the guilt phase in the
course of answering the special verdict questions, the jury G
was specifically instructed to decide whether the evidence
supported affirmative answers to the special questions
"beyond a reasonable doubt." App. 15 (emphasis added).
Because of this instruction, the jury might not have thought
that, in sentencing petitioner, it was free to demand proof
of his guilt beyond a// doubt. H
320 SUPREME COURT REPORTS [2014] 4 S.C.R.
A 30. In California v. Brown 479 U.S. 541 and other cases,
the US Courts took the view, ""Residual doubt" is not a fact
about the defendant or the circumstances of the crime, but a
lingering uncertainty about facts, a state of mind that exists
somewhere between "beyond a reasonable doubt" and
B "absolute certainty." Petitioner's "residual doubt" claim is that
the States must permit capital sentencing bodies to demand
proof of guilt to "an absolute certainty" before imposing the
death sentence. Nothing in our cases mandates the imposition
of this heightened burden of proof at capital sentencing."
c 31. We also, in this country, as already indicated, expect
the prosecution to prove its case beyond reasonable doubt, but
not with "absolute certainty". But, in between "reasonable doubr
and "absolute certainty", a decision maker's mind may wander
possibly, in a given case, he may go for "absolute certainty"
D so as to award death sentence, short of that he may go for
"beyond reasonable doubt". Suffice it to say, so far as the
present case is concerned, we entertained a lingering doubt
as to whether the appellant alone could have executed the
crime single handedly, especially when the prosecution itself
E says that it was the handiwork of a large group of people. If
that be so, in our view, the crime perpetrated by a group of
people in an extremely brutal, grotesque and dastardly manner,
could not have been thrown upon the appellant alone without
charge-sheeting other group of persons numbering around 35.
F All element test as well as the residual doubt test, in a given
case, may favour the accused, as a mitigating factor.
COUNSEL'S INEFFECTIVENESS:
32. Can the counsel's ineffectiveness in conducting a
G criminal trial for the defence, if established, be a mitigating
circumstance favouring the accused, especially to escape from
the award of death sentence. Counsel for the appellant, without
causing any aspersion to the defence counsel appeared for the
accused, but to only save the accused from the gallows,
H
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 321
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
pointed out that the records would indicate that the accused was A
not meted out with effective legal assistance. Learned counsel
submitted that the defence counsel failed to cross examine
PW1 and few other witnesses. Further, it was pointed out that
the counsel also should not have cross examined PW17, since
he was not put to chief-examination. Learned counsel B
submitted that appellant, a tribal, coming from very poor
circumstances, could not have engaged a competent defence
lawyer to conduct a case on his behalf. Placing reliance on the
judgment of the US Supreme Court in Charles E. Strickland,
Superintendent, Florida State Prison v. David Leroy c
Washington 466 US 668 (1984), learned counsel pointed out
that, under Article 21 of our Constitution, it is a legal right of
the accused to have a fair trial, which the accused was deprived
of.
33. Right to get proper and competent assistance is the D
facet of fair trial. This Court in Madhav Hayawadanrao S.
Hoskot v. State of Maharashtra (1978) 3 SCC 544, State of
Haryana v. Darshana Devi and Others (1979) 2 SCC 236,
Hussainara Khatoon and others (IV) v. Home Secretary, State
of Bihar, Patna (1980) 1 SCC 98 and Ranjan Dwivedi v. E
Union of India (1983) 3 SCC 307, pointed out that if the
accused is unable to engage a counsel, owing to poverty or
similar circumstances, trial would be vitiated unless the State
offers free legal aid for his defence to engage a counsel, to
whose engagement, the accused does not object. It is a F
constitutional guarantee conferred on the accused persons
under Article 22(1) of the Constitution. Section 304 CrPC
provides for legal assistance to the accused on State
expenditure. Apart from the statutory provisions contained in
Article 22(1) and Section 304 CrPC, in Hussainara Khatoon G
case (supra), this Court has held that this is a constitutional right
of every accused person who is unable to engage a lawyer and
secure legal services on account of reasons, such as poverty,
indigence or incommunicado situation.
34. The question raised. in this case, is with regard to H
322 SUPREME COURT REPORTS [2014) 4 S.C.R.
A ineffective legal assistance which, according to the counsel,
caused prejudice to the accused and, hence, the same may
be treated as a mitigating circumstance while awarding
sentence. Few circumstances pointed out to show ineffective
legal assistance are as follows:
B
(1) Failure to cross-examine PW1, the injured first
informant which, according to the counsel, is a
strong circumstance of "ineffective legal
assistance".
c (2) The omission to point out the decision of this Court
in Dalbir Singh (supra), wherein this Court held that
Section 27(3) of the Arms Act was unconstitutional,
was a serious omission of "ineffective legal advice",
at the trial stage, even though the High Court has
D found the appellant not guilty under Section 27 of
the Arms Act, 1959.
(3) Ventured to cross examine PW17, who was not put
to chief-examination.
E 35. Right to get proper legal assistance plays a crucial role
in adversarial system, since access to counsel's skill and
knowledge is necessary to accord the accused an ample
opportunity to meet the case of the prosecution. In Charles E.
Strickland case (supra), the US Court held that a convicted
F defendant alleging ineffective assistance of counsel must show
not only that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment so as to provide
reasonable effective assistance, but also that counsel's errors
were so serious as to deprive the defendant of a fair trial. Court
G held that the defiant convict should a.Isa show that because of
a reasonable probability, but for counsel's unprofessional errors,
the results would have been different. The Court also held as
follows:
"Judicial scrutiny of counsel's performance must be highly
H
ASHOK DEBBARMA @ ACHAK DEBBARMA v. 323
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
deferential, and a fair assessment of attorney performance A
requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
time. A court must indulge a strong presumption that B
counsel's conduct falls within the wide range of reasonable
professional assistance. These standards require no
special amplification in order to define counsel's duty to
investigate, the duty at issue in this case." ·
36. The Court, in determining whether prejudice resulted C
from a criminal defence counsel's ineffectiveness, must
consider the totality of the evidence. When an accused
challenges a death sentence on the ground of prejudicially
ineffective representation of the counsel, the question is whether
there is a reasonable probability that, absent the errors, the D
Court independently reweighs the evidence, would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant the death sentence.
37. When we apply the above test to the facts of this case, · E
we are not prepared to say that the accused was not given
proper legal assistance by the counsel appeared before the trial
Court as well as before the High Court. As already discussed
in detail, there is clinching evidence in this case of the
involvement of the appellant. The evidence tendered by the eye- F
witnesses is trystworthy and reliable. True, PW17 should not
have been subjected to cross-examination without being put to
chief-examination. Section 138 of the Evidence Act specifically
states that witness shall be first examined-in-chief, then (if the
adverse party so desires) cross-examined, then (if the party G
calling him so desires) re-examined. Consequently, there is no
scope under Section 138 of the Evidence Act to start with
cross"examination of a witness, who has not been examined-
in-chief, an error committed by the trial Court. In Sukhwant Singh
v. State of Punjab (1995) 3 SCC 367, this Court held that after H
324 SUPREME COURT REPORTS [2014] 4 S.C.R.
A amendment of CrPC, tendering of witness for cross
examination is not permissible. Under the old Code, such
tendering of witnesses was permissible, while the committing
Magistrate used to record the statement of witnesses, which
could be treated at the discretion of the trial Judge as
B substantial evidence of the trial. In that case, this Court further
held as follows:
"Section 138 Evidence Act, envisages that a witness
would first be examined-in-chief and then subjected to
cross examination and for seeking any clarification, the
c witness may be re-examined by the prosecution. There is
no meaning in tendering a witness for cross examination
only. Tendering of a witness for cross examination, as a
matter of fact, amounts to giving up of the witness by the
prosecution as it does not choose to examine him in chief."
D
Later, in Tej Prakash Ii. State of Haryana (1996) 7 SCC
322, this Court, following its earlier judgment in Sukhwant Singh
(supra), held as follows:
"18. As far as Dr O.P. Poddar is concerned, he was only
E
tendered for cross-examination without his being
examined-in-chief. Though, Dr O.P. Poddar was not
examined-in-chief, this procedure of tendering a witness
for cross-examination is not warranted by law. This Court
in Sukhwant Singh v. State of Punjab (1995) 3 SCC 367
F held that permitting the prosecution to tender a witness for
cross-examination only would be wrong and "the effect of
their being tendered only for cross-examination amounts
to the failure of the prosecution to examine them at the
trial". In the present case, however, non-examination of Dr
G O.P. Poddar is not very material because the post-mortem
report coupled with the testimonies of Dr K.C. Jain PW 1
and Dr J.L. Bhutani PW 9 were sufficient to enable the
courts to come to the conclusion about the cause of death."
H 38. Participation and involvement ofthe appellant, in the
. ASHOK DEBBARMA @ ACHAK DEBBARMA v. 325
STATE OF TRIPURA [K.S. RADHAKRISHNAN, J.]
instant crime, have been proved beyond reasonable doubt. At A
the time of commission of the offence, he was 30 years of age,
now 45. Facts would clearly indicate that he is one of the
. members of group of extremist persons, waging war against
the linguistic group of people in the State of Tripura. Persons
like the appellant armed with sophisticated weapons like AK B
47, attacked unarmed and defenceless persons, which included
women and children. Prosecution has stated that the minority
community in the State of Tripura is often faced with some
extremists' attacks and no leniency be shown to such persons,
at the peril of innocent people residing in the State of Tripura. c
39. We have laid down three tests - crime test, criminal
test and RR test, not the "balancing test", while deciding the
proportionality of the sentence. To award death sentence, crime
test has to be fully satisfied and there should be no mitigating
circumstance favouring the accused, over and above the RR D
test. The hallmark of a sentencing policy, it is often said, that
sufficiently guides and attracts the Court is the presence of
procedures that require the Court to consider the circumstances
of the crime and the criminal before it recommends sentence.
E
40. Arbitrariness, discrimination and inconsistency often
loom large, when we analyze some of judicial pronouncements
awarding sentence. Of course, it is extremely difficult to lay
down clear cut guidelines or standards to determine the
appropriate sentence to be awarded. Even the ardent critics F
only criticize, but have no concrete solution as such for laying
down a clear cut policy in sentencing. Only safeguard, statutorily
and judicially provided is to give special reasons, not merely
"reasons" before awarding the capital punishment In Santosh
Kumar Satisbhushan Bariyar v. State of Maharashtra (2009)
6 SCC 498, this Court highlighted the fact that the arbitrariness G
in sentencing under Section 302 may violate the idea of equal
protection clause under Article 14 and the right to life under
Article 21 of the Constitution. Many times, it may be
remembered that the ultimate sentence turns on the facts and
H
326 SUPREME COURT REPORTS [2014] 4 S.C.R.
A circumstances of each case. The requirement to follow the three
tests, including the necessity to state "special reasons" to some
extent allay the fears expressed in Santosh Kumar
Satisbhushan Bariyar case (supra).
8 41. We have already explained few circumstan~es which
favoured the accused in the instant case, to hold it as not a
rarest of rare case, which are that the appellant alone could not
have executed such a crime, which resulted in the death of 15
persons and leaving so many injured and setting ablaze 23
C houses, that is the entire elements of the crime could not have
been committed by the appellant alone. Further, the appellant
is a tribal, stated to be a member of the extremist group raging
war against the minority settlers, apprehending perhaps they
might snatch away their livelihood and encroach upon their
properties, possibly such frustration and neglect might have led
D them to take arms, thinking they are being marginalized and
ignored by the society. Viewed in that perspective, we are of
the view that this is not a rarest of rare case for awarding death
sentence. All the same, considering the gravity of the crime and
the factors like extreme social indignation, crimes against
E innocent villagers, who are a linguistic minority, which included
women and children, we feel it would be in the interest of justice
to apply the principles laid down in Swamy Shradananada (2)
v. State of Kamataka (2008) 13 SCC 767.
F 42. Consequently, while altering the death sentence to that
of imprisonment for life, we are inclined to fix the term of
imprisonment as 20 years without remission, over and above
the period of sentence already undergone, which, in our view,
would meet the ends of justice. Ordered accordingly.
G 43. The Appeals are, accordingly, disposed of.
D.G. Appeals disposed of.
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