Supreme Court of India
RABINDRA KUMAR PAL @ DARA SINGHversusREPUBLIC OF INDIA
- Citation
- 2011 INSC 63
- Decided
- 21 January 2011
- Disposal
- Dismissed
Holding
The Supreme Court upheld the life sentences of Dara Singh and Mahendra Hembram, affirmed the acquittal of the other accused, and dismissed all appeals.
Summary
The case concerns the 1999 arson and murder of Australian missionary Graham Staines and his two sons by a mob in Orissa. The trial court convicted fourteen accused, sentencing Dara Singh (A‑1) to death and the others to life imprisonment; the High Court modified Dara Singh's sentence to life imprisonment and acquitted eleven accused. On appeal, the Supreme Court examined the admissibility of eyewitness identification without a test identification parade, the voluntariness of confessional statements recorded under Section 164 CrPC, and whether the crime qualified as a "rarest of rare" case warranting death. The Court held that identification of A‑1 and A‑3 was corroborated by slogans and letters, while identification of the other accused lacked sufficient corroboration and could not support conviction. It also found procedural lapses in the recording of confessions of several accused, rendering those statements inadmissible, but accepted the confessions and letters of A‑3 as reliable. Consequently, the Court upheld life imprisonment for Dara Singh and Mahendra Hembram (A‑3) and affirmed the acquittal of the remaining accused, dismissing all appeals.
Issues considered
- The admissibility and evidentiary value of eyewitness identification made for the first time in court without a prior test identification parade (TIP).
- The voluntariness and procedural compliance of confessional statements recorded under Section 164 of the CrPC, especially when made after police custody.
- Whether the murder of the missionary and his sons constitutes a "rarest of rare" case justifying the death penalty.
- The sufficiency of corroborative evidence to sustain convictions of accused other than A‑1 and A‑3.
- The legality of taking specimen signatures and writings of an accused during investigation.
- The application of secularism principles in the context of communal violence.
Legislation cited
- Code of Criminal Procedure, 1973s. 164, s. 313
- Indian Evidence Act, 1872s. 162, s. 29, s. 30, s. 8
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 435, s. 436
Subjects
murderarsonidentification paradeconfessional statementsSection 164 CrPCrarest of rare doctrinedeath penaltysecularismtribal violencereligious persecution
Judgment
(2011] 1 S.C.R. 929
RABINDRA KUMAR PAL @ DARA SINGH A
v.
REPUBLIC OF INDIA
Criminal Appeal No. 1366 of 2005
JANUARY 21, 2011
B
[P. SATHASIVAM ANIJ DR. B. S. CHAUHAN, JJ.]
~
Penal Code, 1860 - s. 302 - Rioting, arson and mufdt}r
of three persons - Christian Missionary from Australia,
engaged in propagating cmd preaching Christianity in the c
tribal area, burnt to death afongwith his two minor sons by 50-
60 miscreants - Victims also prevented from escaping from
the vehicle - Conviction and sentence of 14 accused - High
Court modifying death se ntence awarded to A-1 to life
1
imprisonment and upheld life imprisonment.Jmpos~d on A-3 D
and acquitted the others - On appeal, held: Letters addressed
by A-3 to the trial judge wherein he confessed his guilt, in the
course of trial lend ample corroboration to his identification
before the trial court by P~V-23, even th6ugh no I/P was
conducted by Judicial Magistrate - A-3 also addressed a [
letter to his sister-in-law, inculpating himself and A-L- A-3
though denied the letters b'ut it amounts to confession and
lend support to the evidence in identification before the trial
court for the first time - Testimony of witnesses that miscreants
raised slogans in the name of A-1 which co"oborates the F
identification before the trial court for the first time - All the
witnesses mentioned about th,9 blowing of whistle by A 1 - A-
3 in his statement u/s. 313 Cr.P.C. admitted to have set fire
to the vehicles and confessed his guilt - Abscondence of A-
3 soon after the incident and c.1voiding of a"est, is a relevant
"'j ·l! G
conduct to prove his guilt - Death of the victims by setting
fire by the miscreants cannot be ruled out - Even in the midst
of uncertainties, witnesses specified the role of A-1 and A-3
- However, more than 12 yeam having elapsed since the act
929 H
930 SUPREME COURT REPORTS [2011) 1 S.C.R.
A was committed, life sentence awarded by the High Court not
enhanced - Conviction of A-1 and A-3 and the sentence of
life imprisonment imposed on them by the High Court,
maintained - As regards the other accused, testimony of the
eye-witnesses about their identification before the trial court
B for the first time without corroboration by previous Test
Identification Parade, not credible - In view of absence of
acceptable materials and various infirmities in the
prosecution case, order of acquittal of accused other than A- _.._
1 and A-2 upheld - Sentence/Sentencing - Evidence - Test
c identification parade.
Identification - Photo identification and identification of
the accused by the witnesses done for the first time before the
trial court without being corroborated by Test Identification
Parade or any other material - Evidentiary value - Held:
D Though such identification is permissible but cannot be given
credence without further corroborative evidence - On facts, for
many days, t:ye-witnesses never came forward before the /Os
and the police personnel claiming that they had seen the
occurrence - As such, their teslim'ony about the identification
E of the accused other than A-1 and A-3 before the trial court
for the first time without corroboration by previous TIP, not
credible -As regards A-1 and A-3, they were identified which
was also corroborated by the 'evidence of slogans given in
their name and each one of the witnesses asserted the said
.~f aspect, thus, their identification can be relied upon - Test
identification parade
Code of Criminal Procedure, 1963 - s. 164 - Recording
of confessions and statements - Procedure to be followed by
G the Magistrate - Reiterated - On facts, procedural lapse on
the part of the Judicial Magistrate in recording confessional 1 '
statements - Accused in their confessional statements, made
exculpatory statements - Thus, confessional statements with
regard to accused other than A-1 and A-3, not admissible.
H Appeal - Appeal against acquittal - When two views are
RABINDRA KUMAR PAL @ DARA SINGH v. 931 ·
REPUBLIC OF INDIA ~
possible, the one in favour of the accused should be . A
accepted - Presumption of innocence is a fundamental
principle of criminal jurisprudence - On facts, absence of
definite assertion from the prosecution side, about the specific
role and involvement of the acquitted accused who are all
. poor tribals - Thus, not safe to convict them - Order of s
acquittal of these accused upheld - Criminal jurisprudence.
Sentence/Sentencing - Conviction u/s. 302 /PC - Award
-"' of Punishment - Held: Normal rule is to award punishment
of life imprisonment - Punishment of death should be
resorted to only for the rclfest of rare cases which is to be C
examined with reference to the facts and circumstances of
each case - Court to take note of the aggravating as well as
mitigating circumstances ~ Penal Code, 1860.
Secularism - Concept of - Held: State will have no D
religion - It shall treat all religions and religious groups equally
and with equal respect without in any manner interfering with
their individual right of religion, faith and worship - There is
no justification for interferin17 in someone's religious belief by
any means - Constitution of India, 1950. E
The prosecution case was that 'GS', a Christian
Missionary from Australia, was engaged in propagating
and preaching Christianity in the tribal area of Orissa. On
the fateful day, the Missionary team conducted different
programmes in the village 11ear the church and retired for F
the day. 'GS' and his two minor sons slept in a vehfole.
At mid-night, a mob of 60-70 people set fire to the vehicle
and prevented 'GS' and his sons to escape from vehicle.
As a result GS' and his two sons were burnt to death. The
local police and the State Crime Branch failed to conduct G
the investigation satisfactorily and as such the
investigation was transferred to CBI. The charge sheet
was filed against 14 accust~d persons. The prosecution
examined 55 witnesses and the defence examined 25
witnesses. The trial court convicted all the accused and H
932 SUPREME COURT REPORTS [2011) 1 S.C.R.
A sentenced them for offences punishable under various
Sections. 'OS'- A-1 was awarded death sentence and the
others were awarded sentence of life imprisonment. The
High Court holding that the witnesses are not trustworthy
and no credence should be given to their statement and
B confessional statements were procured by the
investigating agency under threat and coercion, modified
the death sentence awarded to A-1 into life imprisonment
and upheld the sentence of life imprisonment awarded to
· 'MH'-A-3 and acquitted the other accused. Therefore, the
c instant appeals were filed by A-1, A-3 and CBI.
Dismissing the appeals, the Court
HELD: 1. The analysis of entire materials clearly
shows that the High Court was right in arriving at its
D conclusion. In the instant case, there is no material to
prove conspiracy charge against any of the accused.
Even in the midst of uncertainties, the witnesses have
specified the role of A-1 and A-3 which is accepted and
confirmed. The conviction of the appellant A-1 and A-3
E and the sentence of life imprisonment imposed on them,
is maintained. In the absence of acceptable materials and
in view of the various infirmities in the prosecution case
as pointed out by the High Court, the order of acquittal
of others who are all poor tribals is concurred with. [Para
F 48] [995-G-H; 996-A-B]
2.1 In the absence of any independent corroboration
like Test Identification Parade held by judicial Magistrate,
the evidence of eye-witnesses as to the identification of
the appellants/accused for the first time before the trial
G court generally cannot be accepted. If the case is
supported by other materials, identification of the
accused in the dock for the first time would be
permissible subject to confirmation by other
corroborative evidence, which are lacking in the instant
H case, except for A-1 and A-3. The High Court rightly
RABINDRA KUMAR PAL @ DARA SINGH v. 933
REPUBLIC OF INDIA
observed that for a long number of days, many of these A
eye-witnesses never came forward before the IOs and the
police personnel visiting the village from time to time,
claiming that they had seen the occurrence. Thus, no
importance need to be attached on the testimony of these
eye-witnesses about their identification of the appellants B
other than A1 and A-3 before the trial court for the first
.time without corroboration by previous TIP held by the
Magistrate in accordance with the procedure established.
[Para 11] [960-C-G]
2.2 Showing photographs of the miscreants and
c
identification for the first time in the trial court without
being corroborated by TIP held before a Magistrat~ or
without any other material may not be helpful to the
prosecution case. The evidence of witness given in the
court as to the identification may be accepted only if he D
identified the same persons in a previously held TIP in
jail. It is true that absence of TIP may not be fatal to the
. prosecution. In the instant case, A-1 and A-3 were
identified and also corroborated by the evidence of
sloga~s given in his name and each one of the witnesses · E
asserted the said aspect in~ofar as they are concerned.
None of these witnesses named the offenders in their
statements except few recorded by IOs in the course of
investigation. Though an explanation was offered that out
of fear they did n9t name the offenders, the fact remains, F
on the next day of the incident, Executive Magistrate and
top level police officers were camping the village for quite
some time. Inasmuch as evidence of the identification· of
the accused during trial for the first time is inherently
weak in character, as a safe rule of prudence, generally G
~ "" it is desirable to look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
TIP. Though some of them were identified by the
photographs except A-1 and A-3, no other corroborative H
934 SUPREME COURT REPORTS [2011) 1 S.C.R.
• A material was shown by the prosecution. Thus, it is clear
that identification of accused persons by witness in dock
for the first time though permissible but cannot be given
credence without further corroborative evidence. Though
some of the witnesses identified some of the accused in
B the dock without corroborative evidence, the dock
identification alone cannot be treated as substantial
evidence, though it is permissible. [Paras 12 and 15] [960-
H; 961-A-E; 966-D-E]
C Manu Sharma vs. State (NCT of Delhi) (201 O) 6 SCC 1
- relied on.
Umar Abdul Sakoor Sorathia vs. Intelligence Officer,
Narcotic Control Bureau AIR 1999 SC 2562; Jana Yadav vs.
State of Bihar (2002) 7 SCC 295 - referred to.
D
3. If the witnesses are seen through microscope, it
is true that the contradictions would be visible and clear
but by and large they explained the prosecution case
though they could not identify all the accused persons
E with clarity except A-1 and A-3. By virtue of these minor
contradictions, their testimony cannot be rejected in toto.
But, by and large, there are minor contradictions in their
statements. In the face of the difference in the evidence
of prosecution witnesses with regard to light, clothing,
number of accused persons, fog, faces covered or not,
F it is not acceptable in toto except certain events and
incidents which are reliable and admissible in evidence.
[Para 17] [967-D-Fl
4.1 The following principles emerge with regard to
G Section 164 Cr.P.C.:-
(i) The provisions of Section 164 Cr.P.C. must be
complied with not only in· form, but in essence.
(Ii) Before proceeding to record the confessional
H
RABINDRA KUMAR PAL @ DARA SINGH v. 935
REPUBLIC OF INDIA
statement, a searching enquiry must be made from A
the accused as to the custody from which he was
produced and the treatment he had been receiving
in such custody in order to ensure that there is no
scope for doubt of any sort of extraneous influence
proceeding from a source interested in the s
prosecution.
(iii) A Magistrate should ask the accused as to why
he wants to make a statement which surely shall go
against his interest in the trial.
c
· (iv) The maker should be granted sufficient time for
reflection.
(v) He should be assured of protection from any sort
of apprehended torture or pressure from the police 0
in case he declines to make a confessional
statement.
•
(vi) A judicial confession not given voluntarily is
unreliable, more so, when such a confession is
retracted, the conviction cannot be based on such E
retracted judicial confession.
... (vii) Non-compliance of Section 164 Cr.P.C. goes to
the root of the Magistrate's jurisdiction to record the
confession .and renders the confession unworthy of F
credence.
(viii) During the time of reflection, the accused should
be completely out of police influence. The judicial
officer, who is entrusted with the duty of recording
. '(
confession, must apply his judicial mind to ascertain
and satisfy his conscience that the statement of the
G
accused is not on account of any extraneous
influence on him.
(ix) At the time of recording the statement of the· H
936 SUPREME COURT REPORTS [2011] 1 S.C.R.
A accused, no police or police official shall be present
in the open court.
"
(x) Confession of a co-accused is a weak type of
evidence.
B (xi) Usually the Court requires some corroboration
from the confessional statement before convicting
the accused person on such a statement. [Para 29]
[980-G-H; 981-A-H; 982-A] _..__
c Bhagwan Singh and Ors. vs. State of M.P. (2003) 3 SCC
21; Shivappa vs. State of Kamataka (1995) 2 SCC 76; Dagdu
and Ors. vs. State of Maharashtra (1977) 3 SCC 68; Davendra
Prasad Tiwari vs. State of U.P. (1978) 4 SCC 474; Kalawati
and Ors. vs. State of Himachal Pradesh 1953 SCR 546; State
D · thr. Superintendent of Police, CBI/SIT vs. Nalini and Ors.
(1999) 5 SCC 253; State of Maharashtra vs. Damu (2000) 6
~
sec 269 - relied on.
4.2 The analysis of evidence of Judicial Magistrates
- PW-29 who recorded the confessional statement of
E 'RS' and 'TH' and PW-34 who recorded the confessional
statement of 'MM', 'UK' and 'DP', shows that many of the
confessional statements were recorded immediately after
production of the maker after long CBI custody and in
some cases after such statements were made and
F recorded by the Judicial Magistrate, the maker was
remanded to police custody. Though the Magistrates
have deposed that the procedure provided under Section
164 Cr.P.C. has been complied with, various warnings/
cautions required to be given to the accused before
·G . recording such confession, have not been fully adhered
)I •
to by them. The High Court strongly observed about the
procedural lapse on the part of PWs-29 and 34. Their
statements and requirements in terms of Section 164
. Cr.P.C. are verified. In the certificate, there is no specific
H reference about the nature of the custody from which
RABINDRA KUMAR PAL @ DARA SINGH v. · 937
REPUBLIC OF INDIA
these persons were produced nor about the assurance A
that they would not be remanded to police custody if they
declined. Section 164 Cr~P.C. requires strict and faithful
compliance of sub-sections 2 to 4, the failure to observe
safeguards not only impairs evidentiary value of
confession but cast a doubt on nature and voluntariness B
of confession on which no reliance can be placed. No
exceptional circumstances could be brought to the
notice by the prosecution in respect of the appellants
other than A-1 and A-3. [Paras 32 and 33] [983-H; 984-A-
H] C
4.3 Under sub-section (3) of Section 164 Cr.P.C., if
any accused refuses_ to make any confessional
statement, such Magistrate shall not authorize detention
of the accused in police custody. Remanding 'RS' to
police custody after his statement was recorded under D
Section 164 Cr.P.C. is not justified. The High Court rightly
observed that the possibility of coercion, threat or
inducement to the accused 'RS' to make the confession
cannot be ruled out. In the same manner, confession of
accused 'TH' was also recorded by the very same E
Magistrate. The High Court pointed out that he was not
cautioned that if he made any confession, same may be
used against him in evidence and on that basis he may
be sentenced to death or imprisonment for life; and that
if he refused to make the confessional statement, he F
would not be remanded to police custody. Both of these
accused, in their confessional statements, made
exculpatory statements. PW-34, Judicial Magistrate,
recorded the confessional statement of accused 'MM'
immediately after his production before him from the G
• .,,, police custody. It was noted that he was given only 10
minutes' time for reflection after his production from
police custody. The other accused who made the
confessional statement is 'DP! whose statement was
recorded by PW-34~ The High Court, on corroboration of H
938 .
SUPREME COURT REPORTS [2011] 1 S.C.R.
A the confessional statement, had found that the entire
confessional statement is exculpatory and he also .\
retracted from the confession. It was further found that
this confessional statement was made long after the
charge-sheet was filed. [Paras 31 and 32] [983-D-H; 984-
B A-C]
5. The procedure adopted by the investigating
agency with regard to taking of the signature/writings of
A-3 or examination by the expert was analyzed and ..I,_
approved by the trial court and confirmed by the High
c Court, and cannot be faulted with. In view of oral report
of PW-4 which was reduced into writing, the evidence of
PW-23, two letters dated 01.02.2002 and 02.02.2002
addressed by A-3 to the trial judge facing his guilt
coupled with the other materials, the submission that
D there is deficiency in the prosecution case insofar as A-
3, cannot be accepted and the conclusion arrived by the
High Court is confirmed. [Para 35] [989-B-C]
The State of Bombay vs. ·Kathi Kalu Oghad and Ors.
E (1962) 3 SCR 10; M.P. Sharma and Ors. vs. Satish Chandra,
District Magistrate, Delhi and Ors. (1954) SCR 1077 - relied
on.
6.1 With regard to the role of A-3, the prosecution
very much relied on the letters by A-3 addressed to the
F Sessions Judge wherein he confessed his guilt. Though
a serious objection was taken about the admissibility of
these two letters, the contents of these two letters in the
course of trial lend ample corroboration to his
identification before the trial court by PW-23 and the same
G could be safely relied upon. Even in his case, it is true
y ~
that there was no TIP conducted by Judicial Magistrate.
[Para 36] [989-E-F]
6.2 The prosecution also relied on a letter said to
H have been addressed by A-3 to PW-9, his sister-in-law.
• RABINDRA KUMAR PAL @ DARA SINGH v.
REPUBLIC OF INDIA
c
939
The said letter is a confessional statement of accused A- A
1-- 3 inculpating himself and A-1. A-3 in said letter confessed
that he along with A-1 burnt the 'Jisu' (Christian
Missionary). All the ocular witnesses have testified that
after setting fire to vehicles and burning 'GS' and his two
sons alive, the miscreants. raised slogans "Jai Baj rang B
Bali" and "Dara Singh Zindabad". The entire contents of
letter were used by the trial judge which was rightly
).. accepted by the High Court. [Paras 38 and 41) [990-F-G;
1
992-D]
6.3 A-3 in his statement recorded under Section 313 C
Cr.P.C. on 04.02.2002, admitted to have set fire to the
vehicles and in his statement recorded under Section 313
Cr.P.C. on 24.03.2003 has admitted to have filed petitions
pleading guilty and to have stated in his earlier
examination under Section 313 Cr.P.C. that he had set fire D
to the vehicles. There is no impediment in relying on a
portion of the statement of the accused and finding him
guilty in consideration of the other evidence against him
as laid by the prosecution. [Para 39) [991-8-C)
E
6.4 It is clear that A-3 though denied the letters written
by him, the contents of the said two letters amount to
confession, or in any event admission of important
incriminating materials. He had been identified before the
trial court by PW-23 as a participant in the crime. The High F
Court rightly observed that the contents of the two letters
lend support to the evidence in identification before the
trial court for the first time as narrated by PW-23. In this
way, his identification for the first time in the trial court is
an exceptional case and even in the absence of further G
corroboration by way of previously held TIP, his
involvement in the crime is amply corroborated by the
said letters written by him. [Para 40] [991-D-F]
6.5 Though an objection was raised as to the manner
H •
0
940 SUPREME COURT REPORTS [2011) 1 S.C.R.
A in which the trial judge questioned A-3 with reference to
contents of his letters dated 01.02. 2002 and 02.02.2002,
addressed to the Sessions Judge wherein he confessed
his guilt, it is relevant to point out that when the person
facing trial insisted to look into the contents of his letter&,
B the presiding officer concerned has to meet his
requirement subject to the procedure established. The
trial judge accepted the entire contents of the admission
made by A-3 and affording reasonable opportunity and
by following the appropriate procedure coupled with the
c corroborative evidence of PW-23, upheld his involvement
and participation in the crime along with A-1 which
resulted in rioting, arson and murder of three persons.
Also A-3 absconded soon after the incident and avoided
arrest and this abscondence being a conduct under
Section 8 of the Evidence Act, 1872 should be taken into
0
consideration along with other evidence to prove his
guilt. The fact remains that he was not available for quite
sometime till he was arrested which fact has not been
disputed. Before accepting the contents of the two letters
and the evidence of PW-23, the trial Judge afforded him
E required opportunity and followed the procedure which
was rightly accepted by the High Court. [Para 41) [992-
A-F]
7.1 Though several inconsistencies were noticed in
F the prosecution evidence and the accused persons were
not specifically identified except A-1 and A-3, the fact
remains that the Van in which 'GS' and his two children
were sleeping were set on fire and burnt to death due to
the cause of the miscreants. The death of these three
G persons by setting fire by the miscreants cannot be ruled
out. There is no material to conclude that the fire
emanated from inside of the vehicle and then spread to
rest of the vehicle after the fuel tank caught fire. There is
no basis for such conclusion though the prosecution.
RABINDRA KUJMAR PAL @ DARA SINGH v. 941
' R~PUBLIC OF INDIA
witnesses could not pin-point and identify the role of A
" each accused. [P~ra 34] [985-C-E]
7 .2 All the : eye,.witnesses examined by the
prosecution conststently stated that during occurrence
the miscreants rai ed slogans in the name of A-1 as "Dara
8
Singh Zindabad' . The story of this slogan was also
~entioned i. n the1 first information report lodged soon
after the occurref'lce. This slogan is in the name of A-1,
,,.. borroborates the itlentification before the trial court for the
first time. In addi~ion to the same, some of the witnesses
identified A-1 by photo identification. In addition to the C
same, all the witnesses mentioned about the blowing of
whistle by A-1. [Para 42] [992-G-H; 993-A-C]
•
8. The submission
'
that
-
only :after
i
the intervention of
PW-55, 1.0. from CBI, seve ral persons made a
1
D
confessional statement· by applying strong arm tactics
that were used by the investigating agency, the entire
case of the prosecution has to be rejected, cannot be
accepted. Some of the witnesses did not mention
anything about the incident to the local police or· the E
District Magistrate or the higher level police officers who
were camping from the next day of the incident. However,
regarding the fresh steps taken by the Officer of the CBI,
particularly, the efforts made by PW-55, though there are
certain deficiencies in the investigation, the same cannot F
be under estimated. The young children were being
coerced into being witness to the occurrence whereas
the elder family members were never joined as witness
by the prosecuting agency. The prosecution could have
examined elders and avoided persons like PW-5 who was
a minor on the date of the incident. [Para 44] [993-H; 994- G
A-E]
9. On conviction under Section 302 IPC, the normal
I
rule is to award punishment of life imprisonment and the
punishment of death should be resorted to only for the H
942 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A rarest of rare casei. Whether a case falls within the rarest
of rare case or not, has to be examined with reference to "
the facts and circumstances of each case and the court
has to take note of the aggravating as well as mitigating
circumstances and conclude whether there was
s something uncommon about the crime which renders the
sentence of imprisonment for life inadequate and calls for
death sentence. However, more than 12 years has
elapsed since the act was committed, the life sentence j._
awarded by the High Court need not be enhanced in view
c of the factual position. [Para 43) [993-E-G]
Bachan Singh vs. State of Punjab AIR 1980 SC 898;
Machhi Singh vs. State of Punjab (1983) 3 SCC 470; Kehar
Singh vs. State (DelhiAdministration) (1988) 3 SCC 609 -
relied on.
D
10.1 Insofar as the appeals filed by the CBI against t
the order of acquittal by the High Court in respect of
certain persons, it was pointed out that when two views·
are possible, the one in favour of. the accused should be
E accepted. The presumption of innocence is a fundamental
principle of criminal jurisprudence. Further, presumption
of innocence is further reinforced, reaffirmed and
strengthened by the judgment in his favour. [Para 45)
[994-E-F]
F
•
RABINDRA KUMAR PAL @ DARA SINGH v. 943
REPUBLIC OF INDIA
High Court insofar as the order relating to acquittal of A
certain accused persons, is concurred with. [Para 45) ·
·~
[995-A-B]
11. In a country like India where discrjmination on the
ground of caste or religion is a taboo, taking lives of B
persons belonging to another caste or religion is bound
to have a dangerous and reactive effect on the society
at large. It strikes at the very root of the orderly society
,,. ;.ii. which the founding fathers of our Constitution dreamt of.
The concept of secularism is that the State will have no
religion. The State shall treat all religions and religious
c
· groups equally and with equal respect without in any
manner interfering with their individual right of religion,
faith and worship. It is hoped that the vision of religion
playing a positive role in bringing _India's nu_merous
religion and communities into an integrated prosperous D
y nation be realized by way of equal respect for all religions.
There is no justification for interfering in someone's
religious belief by any means. [P~ras. 46 and 47] [995-C-
F] '
E
Case Law Reference:
(201 O) 6 sec 1 Relied on Para 11
AIR 199~ SC 2562
.......
-;
Referred to Para 14
(2002) 1 sec 295 Referred to Para 15 F
(2003) 3 sec 21 Relied on Para 22
(1995) 2 sec 76 Relied on Para 23
(1977) 3 sec 68 Relied on Para 24 G
,,_ "
(1978) 4 sec 474 Relied ori Para 25
1953 SCR 546 Relied on · Para 26
(1999) 5 sec 253 Relied on Para 27
H
944 SUPREME COURT REPORTS [2011] 1 S.C.R. •
A (2000) 6 sec 269 Relied on Para 28
(1962) 3 SCR 10 Relied on Para 35
(1954) SCR 1077 Relied on Para 35
AIR 1980 SC 898 Relied on Para 43
B
. (1983) 3 sec 470 Relied on Para 43
(1983) 3 sec 609 Relied on Para 43
(2009) 14 sec 501 Relied on Para 45
c (2008) 11 sec 186 Relied on Para 45
(2003) 1 sec 398 Relied on Para 45
(2002) 3 sec 57 Relied on Para 45
D CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1366 of 2005.
From the Judgment & Order, dated 19.05.2005 of the
High Court of Orissa at Cuttack in Criminal Appeal No. 239 of
E 2003.
WITH
Crl. Appeal Nos. 1259 of 2007 & 1357-1365 of 2005.
Vivek K. Tankha, KTS Tulsi, Katnakar Dash, A.
F Mariyaputham, Mrinmayee Sahu, Sibo Sankar Mishra, Raj
Kumar Parashar, Priyanka Agarwal, Sumeer Sodhi, Pratul
Shandilya, Vaibhav Srivastava, D. Kumanan, R. Sancheti, K.
·Sudhakar, S. Wasim, A Quadri, Arvind Kumar Sharma for the
appearing parties.
G
The judgment of the Court was delivered by
P. SATHASIVAM, J. 1. These appeals relate to a
sensational case of triple murder of an Australian Christian
H Missionary - Graham Stuart Staines and his two minor sons,
RABINDRA KUMAR PAL @ DARA SINGH v. 945
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
namely, Philip Staines, aged about 10 years and Timothy A
Staines aged about 6. years.
2. Criminal Appeal No. 1366 of 2005 is filed by Rabindra
Kumar Pal @ Dara Singh against the final judgment and order
dated 19.05.2005 passed by the High Court of Orissa at 8
Cuttack in Criminal Appeal No. 239 of 2003 whereby the High
Court dismissed the appeal of the appellant upholding the
conviction and commuting the death sentence passed by the
trial Court into that of life imprisonment. Against the same
judgment, Criminal Appeal No. 1259 of 2007 is filed by
Mahendra Hembram challenging his life imprisonment awarded C
by the trial Court and confirmed by the High Court. Against the
acquittal of rest of the accused by the High Court, the Central
Bureau of Investigation (in short "the CBI") filed Criminal Appeal·
Nos. 1357-1365 of 2005. Since all the appeals arose from the D
common judgment of the High Court and relating to the very
same incident that took place in the midnight of 22.01.1999/
23.01.1999, they are being disposed of by this judgment.
3. The case of the prosecution is as under:
i E
(a) Graham Stuart Staines, a Christian Missionary from
Australia, was Working among the tribal people especially
lepers of the State of Orissa. His two minor sons, namely,
Philip Staines and Timothy Staines were burnt to death along
with their father in the midnight of 22.01.1999/23.01.1999. The
deceased-Graham Staines was engaged in propagating and
F
preaching Christianity in the tribal area of interior Orissa.
Manoharpur is. a re.mote tribal village under the Anandapur
Police Station of the District Keonjhar of Orissa. Every year,
soon after the Makar Sankranti, the said missionary used to
come to the village to conduct the Jungle Camp. Accordingly, G
·on 20.01.1999, the deceased-Staines, along with his two minor
sons Philip and Timothy and several other persons came to the
village Manoharpur. They conducted the camp for next two
days by hosting a series of programmes.
H
J.
946 SUPREME COURT REPORTS [2011) 1 S.C.R.
A (b) On 22.01.1999, the Missionary Team, as usual
conducted different programmes in the village near the Church
and retired for the day. Graham Staines and his two minor sons
slept in their vehicle parked outside the Church. In the mid-
night, a mob of 60-70 people came to the spot and set fire to
B the vehicle in which the deceased persons were sleeping. The
mob prevented the deceased to get themselves out of the
vehicle as a result of which .all the three persons got burnt in
the vehicle. The local police was informed about the incident
on t~e next day.
c (c) Since the local police was not able to proceed with the
investigation satisfactorily, on 23.04.1999, the same was
handed over to the State Crime Branch. Even the Crime Branch
failed to conduct the investigation, ultimately, the investigation
was transferred to CBI.
D
(d) On 03.05.1999, the investigation was taken over by the
CBI. After thorough investigation, charge sheet was filed by
the CBI on 22.06.1999. On the basis of charge sheet, as many
as 14 accused persons w~re put to trial. . Apart from these
E accused, one minor was tried by Juvenile Court.\ ,
(e) The prosecution examined as many as 55 witnesses
whereas in defence 25 witnesses were examined. Series of
documents were exhibited by the prosecution. By a common .....
F judgment and order dated 15.09.2003 and 22.09.2003,
Sessions Judge, Khurda convicted all the accused and
sentenced them for offences punishable under various sections.
The death sentence was passed against Dara Singh-appellant
in Criminal Appeal No. 1366 of 2005 and others were awarded
sentence of life imprisonment.
G
(f) The death reference and the appeals filed by the
convicted persons were heard together by the High Court and
·were disposed of by common judgment dated 19.05.2005
concluding that the witnesses are not trustworthy and no
. H credence should be given to their statements and confessional
- RABINDRA KUMAR PAL @ DARA SINGH v.
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
statements were procured by the investigating agency under
947
A
:J..
threat and coercion. The High Court, by the impugned judgment,·
modified the death sentence awarded to Dara Singh into life
imprisonment and confirmed the life imprisonment imposed__ on
Mahendra Hembram and acquitted all the other accused
persons. Questioning the conviction and sentence of life B
impri~onment, Dara Singh and Mahendra Hembram filed
Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007
respectively and against the acquittal of rest of the accuse~.
CBI filed .Criminal Appeal Nos. 1357-65 of 2005 before this
Court. c
4. Heard Mr. KTS Tulsi and Mr. Ratnakar Dash, learned
senior counsel for the accused/appellants and Mr. Vivek K.
Tankha, learned Addi. Solicitor General for the CBI.
· 5. Mr. K.T.S. Tulsi, learned senior counsel appearing for D
Rabindra Kumar Pal @ Dara Singh (A 1) and other accused in
the appeals against acqui~al filed by the CBI, after taking us
through all the relevant materials has raised the following
contentions:-
E
· (i) Confessions of various accused persons, particularly,
Rabi Soren (A9), Mahadev Mahanta (A11) and Turam Ho {A12)
under Section 164 of the Code of Criminal Procedure, 1973
{hereinafter referred to as 'Cr.P.C.') cannot be considered to
be voluntary on account of the fact that all the co-accused
persons were produced before the Magistrate from the police F
custody and were remanded back to police custody. Similarly,
Dayanidhi Patra@ Daya (A14) was produced from the police
custody for confession while Umakant Bhoi (A 13) made his
statement while on bail. Besides all confessions being
exculpatory and made after conspiracy ceased to be operative G
and inadmissible.
· (ii) Inasmuch as recording of confessions of various
accused persons was done after the investigation was taken
.over by Jogendra Nayak (PW 55), 1.0. of the CBI which shows H
948 SUPREME COURT REPORTS [2011) 1 S.C.R.
A the extent to which strong arm· tactics were used by the
-
investigating agency. '
(iii) The statements of eye-witnesses are contradictory to
each other on all material points.
B · (iv) There are several circumstances which are
inconsistent with the fire started by arson from outside and
several circumstances consistent with the fire emanating from
inside of the vehicle and then spread to rest of the vehicle after
fuel tank caught fire.
c
(v) This Court in cases of appeals against acquittal has
held that when two views are possible, one in favour of the
accused should be accepted.
6. Mr. Dash, learned senior counsel appearing for the
0 accused Mahendra Hembram (A3) reiterating the above
submissions of Mr. Tulsi also pinpointed deficiency i"n the
prosecution case insofar as (A3) is concerned.
7. Mr. Vivek Tankha, learned Addi. Solicitor General, after
E taking us through oral and documentary evidence, extensively
refuted all the contentions of the learned senior counsel for the
accused and raised the following submissions:-
(i) The High Court committed an error in altering the death
F sentence into life imprisonment in favour of (A 1) and acquitting
all other accused except (A3). He pointed out that the
appreciation of the evidence by the High Court is wholly
perverse and it erroneously disregarded the testimony of twelve
eye-witnesses.
G (ii) The High Court failed to appreciate the fact that the
three accused, namely, Mahendra Hembram (A3), Ojen @
Suresh Hansda (A7) and Renta Hembram (A10) belonging to
the same village were known to the eye-witnesses and,
therefore, there is no requirement to conduct Test Identification
H Parade (in short 'TIP').
- RABINDRA KUMAR PAL @ DARA SINGH v.
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
949
(iii) The High Court erred in acquitting 11 accused persons A
on the sole ground that TIP was not conducted and, therefore,
identification by the eye-witnesses was doubtful.
(iv) The evidence of identification in Court is substantive ·
evidence and that of the identification in TIP is of corroborative
B
value.
(v) The High Court committed a serious erro.r in law in
~
disregarding the confessional statements made under Section
164 of the Cr.P.C. as well as the extra-jud.icial confessions
made by Dara Singh (A 1) and Mahendra Hembram (A3). c
(vi) The High Court wrongly held inculpatory confessional
statements as exculpatory and on that ground rejected the
same. The High Court failed to appreciate that in their
confessional statements (A9), (A11), (A12), (A13) and (A14)
D
have clearly admitted their plan for committing the crim~.
(vii) The adverse observations against (PW 55) the
Investigating Officer of CBI, by the High Court are not warranted
and in any event not supported by any material.
E
(viii) Inasmuch as it was Dara Singh (A 1) who originated
and organized the heinous act and also prevented ~e
-"J deceased persons from coming out of the burning vehicle, the
High Court ought to have confirmed his death sentence.
~ F
(ix) The reasons given by the High Court in acquitting 11
persons are unacceptable and the judgment to that extent is
liable to be set aside.
8. We have considered the rival submissions and perused
all the oral and documentary evidence led by the prosecution G
~'"""
and defence.
9. With the various materials in the form of oral and ·
.documentary evidence, reasoning of the trial Judge a.nd the
ultimate decision ofthe High Court, we have to find out wh~ther
H
950 SUPREME COURT REPORTS [2011) 1 S.C.R.
A the conviction and sentence of life imprisonment imposed on
-
Dara Singh (A1) and Mahendra Hembram (A3) is sustainable -""
and whether prosecution has proved its case even against the
accused who were acquitted by the High Court.
Eye witnesses
B
10. According to the learned senior counsel for the
accused, the statements of eye-witnesses are corltradictory to
each other on all material points. It is his further claim that
exaggerated and improved version of the incident makes it
C difficult to place implicit reliance on the statements of any of
those witnesses. On the other hand, it is the claim of the
prosecution that the statements of eye-witnesses are reliable
and acceptable and it was rightly considered by the trial Court
and erroneously rejected except insofar as against Dara Singh
D (A 1) and Mahendra Hembram (A3) by the High Court.
(i) PW2, Basi Tudu, one of the prime eye-witness,
identified in dock the previously known accused of her village
Ojen Hansda. She was not examined by local police, however,
examined by the CID on 04.02.1999 and by the CBI on
E 05.06.1999. In herevidence, she stated that she is a Christian
by faith. Before the court, she deposed that her house is
located near the place of occurrence. She also stated that
Graham Staines along with his two sons came at Manoharpur
church after Makar Sankranti and stayed there in the night. He ·
F along with his two sons slept inside the vehicle. Inside the court,
during her deposition, she first wrongly identified accused Rajat
Kumar Das as accused Ojen Hansda. However, when she had
a better view of the accused in the court, she correctly identified
. Ojen Hansda as the person whom she saw among 60 persons
G holding torch lights and lathis going towards the church. She
stated that in the midnight, on hearing barking of dogs, she
woke up from sleep and came out of the house. .She found
about 60 persons going towards the church where the vehicles
of Graham Staines were parked. Those persons did not allow
H her to proceed further. Therefore, she went to the thrashing floor
RABINDRA KUMAR PAL@ DARA SINGH v. 951
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
from where she found that people had surrounded the vehicle A
of Graham Staines. Thereafter, she found the vehicle on fire.
The wheels of vehicle in which Graham Staines and his two
sons were sleeping, bursted aloud, and they were burnt to
death. The people who surrounded the vehicles raised slogans
"Jai Bajarang Bali" and "Dara Singh Zindabad". It is clear that B
she could identify only Ojen @ Suresh Hansda by face for the
first time before the trial Court. No TIP was held to enable her
._,..._,,. to identify him. It shows that her identification of Ojen @ Suresh
Hansda by face during trial was not corroborated by any
- previously held TIP. It is also clear that though she was c
examined by the State Police/CID, she never disclosed the
name of Ojen @ Suresh Hansda. Though she claims to have
identified Ojen @ Suresh Hansda by the light of the lamp (locally
called Dibri) which she had kept in the Verandah, it must be
noted that it was midnight during the peak winter season and D
there is no explanation for keeping the lamp in the Verandah
during midnight. In her cross-examination, she ~dmitted that she
could not identify any of the persons who had surrounded the
vehicle of Graham Staines and set it ablaze.
(ii) The next eye-witness examined on the side of the E
prosecution is PW3, Paul Murmu. He admitted that he was
converted to Christianity in the year 1997. He identified
accused Dara Singh in dock. He was examined by the local
police on 23.01.1999, by CID on 10.02.1999 and by the CBI
on 20.04.1999. He used to accompany Graham Staines at F
different places. He last accompanied Graham Staines .on his ·
visit to Manoharpur on 20.02.1999. He stated that Graham
· Staines with his tWo sons was in a separate vehicle and the
witness along with other three persons was in another vehicle.
In the night of 22.01.1999, Graham Staines along with his two G
sons slept in his vehicle, which was parked in front of the church.
The witness slept in a hut, which was raised behind the church.
In the midnight, Nimai Hansda (driver of vehicle) woke him up.
He heard the sound of beating of the vehicles parked in front
of the church. He along with Nimai Hansda went near the H
952 SUPREME COURT REPORTS [2011] 1 S.C.R.
A chruch and found 60-70 persons putting stra,w beneath the
vehicle of Graham Staines and setting it on fire. Three persons
broke the glass panes of the vehicle in which Graham Staines .
and his two sons were sleeping and gave strokes to them with
sticks. They were focusing the torch into the vehicles. One of
B them was having a beard. The witness pointed out to the
accused Dara Singh (A1) on the dock saying that the bearded
man resembled like him. The witness was unable to identify
the other two persons who were in the dock. However, he also
asserted the hearing of slogans saying "Dara Singh Zindabad"
c which corroborates his identification.
(iii) The next eye-witness examined by the prosecution is
PW4, Rolia Soren. It was he who lodged FIR. He was
examined by the local police on 23.01.1999, by the CID on
03.02.1999 and by the CBI on 09.04.1999. He is a resident
D of Manohapur Village (the place of occurrence) and Graham
Staines was well known to him. He stated that Graham Staines
along with his two sons and other persons visited Manoharpur
on 20.01.1999. In the night of 22.01.1999, Graham Staines and
his two sons slept in the vehicle bearing No. 1208 which was
E parked in front of the church. Another vehicle No. 952 was also
parked in front of the church. The house of witness was situated
in the south of church, four houses apart and the vehicles parked
in front of church were visible from the road in front of his house.
In the night of 22.01.1999, his wife woke him up and said that
F she found large number of people with lathis and torches going
towards the church. After walking about 100 ft. towards the
vehicles, he found a large number of people delivering lathis
blow on the vehicle in which Graham Staines and his two sons
were sleeping and the other vehicle bearing No. 952 was
G already set on fire. Three-four persons belonging to the group
caught hold of him by collar and restrained him from proceeding
towards the vehicle. The witness could not recognize them as
their heads were covered with caps and faces by mufflers:. The
witness went towards the village and called Christian people .
. H When along with these persons, the witness reached near the
RABINDRA KUMAR PAL @ DARA SINGH v. 953
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
church, he found both the vehicles burnt. Graham Staines and A
.>· his two sons were also burnt to death. The next day, at about
9 P.M., the Officer-In-Charge (OIC) Anandpur PS showed his
written paper and said that was the FIR and he had to lend his
signature and accordingly, he lend his signature thereon. The
witness had identified his sign;:itures during his deposition in B
the court. Though he mentioned large number of miscreants,
· but they were not chargesheeted. In the FIR itself it was stated
----. by this witness that at the time pf occurrence miscreants raised
slogans saying "Bajrang Bali Zindabad" and "Dara Singh.
Zindabad".. c
(iv) Singo Marandi (PW5) was examined as next eye-
witness. Though he named accused Ojen Hansda, in his
deposition stated that he belonged to his village and in. the dock
tie could not identify him with certainty. His statement was not
-,. recorded by the local police but recorded by the CID on D
03.02.1999 and by the CBI on 07.06.1999. Thts witness is a
resident of Manoharpur (the place of occurrence). He stated
that on Saraswati Puja day of 1999, after witnessing the Nagin
dance along with his mother, he slept in Verandah ofGalu and
her mother was sitting by his side. At about midnight, his E
mother woke him up. He saw something was burning near the
church and found a vehicle moving towards the road. Ojen and
Chenchu of his village carrying torch and lathis came to them
and warned them not to go near the fire as some people were
killing the Christians there. Thereafter, he heard sounds of F
blowing of whistles thrice and raising slogans saying "Dara
Singh Zindabad". It is seen from his evidence that at that time
he was prosecuting his studies at Cuttack and his mother was
working as a labourer in Bhadrak. It is also not clear as to what
I
was the need for him to sleep in Verandah of another person G
with his mother sitting beside him till midnight during peak of
the winter.
(v) The next eye-witness examined by the prosecution is
Nimai Hansda (PW10}. He was examined by the local police
H
954 SUPREME COURT REPORTS [2011] 1 S.C.R.
A on 23.01.1999, by the CID on 11.02.1999 and by the CBI on
20.04.1999. He did not identify any of the accused.He was the
driver of Graham Staines. Vehicle No. 1208 was driven by him.
He along with Graham Staines and others came to the place
of occurrence on 20.01.1999. Graham Staines and his two
B sons used to sleep in the said vehicle. He stated that in the
midnight of 22.01.1999, on hearing bursting sounds, he woke
up. He heard the sound of beating the vehicles parked in front
of church in which Graham Staines and his two sons were
sleeping. He ran towards the vehicles and found some people
c beating the vehicles with lathis. They first broke the glass pane
of vehicle No. 952. Thereafter, a boy set the vehicle on fire.
Before setting the vehicle on fire, he put bundle of straw at front
right wheel of vehicle. When the witness raised a noise of
protest, those people assaulted him. He went to call the people
D but nobody came. When he came back to the place of
occurrence, he found both the vehicles on fire. The witness
stated that there were about 30-40 people armed with lathis
and holding torches. They raised slogan 'Jai Bajarang Bali'
and 'Dara Singh Zindabad. The fire was extinguished at 3 a.m.
By that time, both the vehicles were completely burnt. Graham
E Staines and his two sons were completely charred and burnt
to death. The witness could not identify any of the miscreants
who set the vehicles on fire.
(vi) PW11, Bhakta Marandi was next examined on the
F side of the prosecution as eye-witness. He identified accused
Dara Singh and Rajat Kumar Das in dock. His statement was
neither recorded by local police nor by tne ClD but recorded
by the CBI on 05.06.1999. He belongs to Village Manoharpur
(the place of occurrence). His house is situated two houses
G apart from the church. He stated that the deceased Graham )>-· -+
Staines was known to him. He last visited Manoharpur on
20.01.1999 along with his two sons and others in two vehicles.
Graham Staines and his two sons used to sleep in the night
inside the vehicle parked in front of the church. As usual in the
H night of 22.01.1999, Graham Staines and his two sons had
RABINDRA KUMAR PAL @ DARA SINGH v. 955
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
slept in a vehicle. In the midnight, the witness was woken up A
by his wife on hearing bursting sounds. He came out of his
house and found 4/5 persons standing in front of his house
holding torches and lathis. They were threatening that they will
kill the persons who will dare to come in their way. One of them
threw a baton like stick at him. He retreated to his house and B
went to the house of another person situated one house apart
from the church. A slim and tall man was holding an axe. They
set on fire one of the vehicles: Some of them brought straw and
put the same on the vehicle. They set fire both the vehicles and
both the vehicles were burnt. They raised the slogans "Jai c
Bajarang Bali" and "Dara Singh Zindabad". The witness pointed
accused Dara Singh (A1) and accused Rajat Kumar Das in the
dock as two of those persons beating the vehicles and setting
fire on the vehicles. The witness identified accused Dara Singh
(A1) as slim and tall fellow holding the axe and guiding the D
miscreants. The witness further stated that the CBI wh.ile
interrogating him showed photographs of some persons and
he had identified two of the photographs as that of miscreants.
He had signed on those photographs. About the admissibility
of the identification of the accused persons with the
photographs can be considered at a later point of time. He E
did not report the incident to the Collector or any other police
officer camping at the site.
(vii) The next eye-witness examined was Mathai Marandi
(PW15). He identified accused Uma Kant Bhoi (A 13) in the F
TIP. He also identified accused Dara Singh (A1), Dipu Das
(A2), Ojen @ Suresh Hansda and Mahadev. Out of these
accused, Ojen Hansda was previously known to him, belonging
to the same street of his village. In his evidence, it is stated
that he is native of Manoharpur village and the church (Place G
of occurrence) is located adjacent to his house. Deceased
Graham Staines was well known to him as he used to visit his
village for the last 15-16 years. He stated that Graham Staines
last visited their village on 20.01.1999. He along with his two
sons and other persons came there in two vehicles. He further H
956 SUPREME COURT REPORTS [2011] 1 S.C.R.
A stated that in the night of 22.01.1999, on hearing bursting
sound, his wife woke him up. After coming out of the house,
he found 40-50 persons gathered near the vehicles parked in
front of the church and beating the vehicles by lathis. Those
miscreants were holding lathis, axe, torches, bows and arrows.
B He heard cries raised by the minor sons of Graham Staines.
He went near the vehicle, but 3 to 4 persons threatened him
with lathis and, therefore, he retreated to his house. Thereafter,
he went to the huts raised behind the church and called the
persons staying there and went to the place of occurrence and
C found the vehicles set on fire. The miscreants put the straw
inside the vehicle and set it on fire. They first set the empty
vehicle on fire and thereafter the vehicle in which Graham
Staines and his sons were sleeping. Both the vehicles caught
fire and were burnt. The witness identified accused Dara Singh
(A 1), Dipu Das (A2), Ojen @ Suresh Hansda and Mahadev as
D the miscreants present at the scene of occurrence and taking
part in the offence. The witness further stated that Ojen Hansda
and Mahendra Hembram belonged to his village. He had
identified accused Uma Kanta Bhoi in the TIP conducted at
Anandpur Jail as one of the persons setting fire on th~ vehicle.
E He further stated that after the vehicles were burnt, the
miscreants blew whistle thrice and raised slogan •Jai Bajarang
Bali" and "Dara Singh Zindabad". However, it is relevant to
note that his omission to mention all important aspects in his
evidence including names of the appellants and his previous
F statements recorded by three Investigating Officers creates a
doubt about his veracity.
(viii) Joseph Marandi (PW23) was examined as another
eye-witness to the occurrence. He belonged to village.
G Manoharpur (Place of occurrence) and his house is located
near the church. He identified accused Renta Hembram,
Mahendra Hembram, Dara Singh and Rajat Kumar Dass @
Dipu. Out of these, two accused - Renta Hembram and
Mahendra Hembram, were previously known to him as they
H belonged to his village. He was examined by the local police
RABINDRA KUMAR PAL @ DARA SINGH v. 957
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
on 02.02.1999, by the CID on 06.02.1999 and by the CBI on A
;> 03.06.1999. He stated that Graham Staines along with his two
sons and other persons came to Manoharpur on 20.01.1999
. on two vehicles. On 22.01.1999 deceased Graham Staines
and his two sons slept in a vehicle parked in front of the church
and other persE>ns slept in the huts raised ~ehind the church. B
In the mid-night, he heard the sound of beating of vehicles and
woke up. When he came out of the house, 3 to 4 persons
...-.... holding lathis and torches restrained and threatened him to
assault if he proceeds further. Thereafter, he stood in a lane
between his hous-e and the church. He saw that about 20-22 c
persons had surrounded the vehicle in. which deceased
Graham .Staines and his two sons were sleeping. Some people
were setting the vehicle on fire by putting straw beneath it and
igniting it by match stick~. After the vehicle caught fire and was
burnt, somebody·blew whistle thrice and they shouted slogan D
,_ •Jai Bajarang Bali" and "Dara Singh Zindabad"~ The other
vehicle was not visible to the·witness. The witness identified
accused Renta Hembram and Mahendra Hembram of his
village who were among the miscreants. The witness also
identified accused Dara Singh (A 1) and accused Rajat Kumar
E
Das @Dipu (A2) as the miscreants who among others had set
fire to the vehicles. The witness further stated that the CBI
officers had shown him 30-40 photographs out of which he
~ identified the photographs of the accused Renta Hembram,
Mahendra Hembram, Dara Singh (A1) and Rajat Kumar Das
@ Dipu (A2). He is also a witness to the seizure of some F
articles seized from the place of occurrence
.
and
.
he has proved
the seizure list. Admittedly, he did not disclose the names of
these persons before either of the aforesaid three I.Os.
(ix) Raghunath Dohari (PW36), one of the eye-witnesses, G
"'"' -<: identified ac;:cused Dara Singh, Harish Chandra, Mahadev and
Turam Ho. ~is statement was not recorded by local police and
the CID but it was recorde~ by the CBI on 04.12.1999. He
belongs to village Manoharpur (place of occurrence), He stated
that about 3 years before his deposition (1999) during H
958 SUPREME COURT REPORTS (2011] 1 S.C.R.
A Saraswati puja, Graham Staines visited their village. In the night,
he heard the sound of beating. He got up and went to the
church, where there was a gathering of 60-70 persons in front
of the Church and they were beating the vehicles with sticks.
They brought straw and set fire to the vehicles by burning straw.
B The witness identified accused Dara Singh (A 1), Harish
Chandra, Mahadev and Turam Ho as the miscreants who were
in the gatherings and set fire to the vehicles. It is relevant to
point out that apart from the police party, the Collector and other
Police Officers though were camping at the place of
C occurrence, the fact remains that this witness did not report the
incident either to the concerned Investigating Officer or to the
Collector for about four months. However, the fact remains that
he identified some of the appellants before the trial Court for
the first time. As stated earlier, the legality or otherwise of dock
D identification, for the first time, would be dealt with in the later
part of the ju~gment.
(x) Another eye-witness PW39, Soleman Marandi
identified accused Dara Singh, Rajat Kumar Dass, Surtha Naik,
Harish Chandra, Ojen Hansda and Kartik Lahar. Out of these
E accused, Ojen Hansda was known to him being resident of his
village. His statement was not recorded by the local police but
recorded by the CID on 03.02.1999 and by the CBI on
30.05.1999. He is a resident of village Manoharpur (place of
occurrence). He stated that Graham Staines visited Manhorpur
F last time about 3 years back i.e. in the year 1999 after Makar
Sankranti. He came there with his two sons and other persons
in two vehicles. In the third night of his stay, he along with his
two sons slept in the vehicle during night. The vehicles were
parked in front of the church. In the midnight, the witness heard
G the sound of beating of vehicles. He came out of the house and
went near the church. He found that about 30-40 persons had
surrounded the vehicles and some of them were beating the
vehicles in which Graham Staines along with his two sons was
sleeping. He heard the cries of two sons of Graham Staines
H coming from the vehicle. These people set fire to the second
RABINDRA KUMAR PAL @ DARA SINGH v. 959
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
vehicle parked near the vehicle of Graham Staines. When the A
vehicle caught fire, the vehicle moved towards the road. Three
of those miscreants put a log of wood preventing the vehicle
moving further. The witness identified accused Dara Singh as
(A1}, Rajat Kumar Das, Suratha Naik, Harish Mahanta, Ojen
Hansda and Kartik Lahar amongst the accused persons in the B
dock as the miscreants who had set fire to the vehicles.
Accused Ojen Hansda belonged to his village. The witness
further stated that CBI showed him number of photographs·
among which he identified photographs of 5 persons who had
taken part in the occurrence. He identified Dara Singh (A 1} C
without any difficulty and it is also corroborated by the slogan
he heard which miscreants raised in the name of Dara Singh.
(xi} The last eye-witness examined on the side of the
prosecution is PW43, Labial Tudu. He identified accused Dara D
Singh, Turam Ho, Daya Patra and Rajat Kumar Das. His
statement was not recorded by local police and by the CID but
recorded by the CBI on 03.06.1999. He is also a resident of
Manoharpur village and his house is located near the Church
(the place of occurrence}. He stated that Graham Staines visited
their village about three years before his deposition in the Court · E
(January, 1999). He came there on Wednesday and stayed till .
Friday. On Friday night, Graham Staines and his two sons slept
in a vehicle parked in front of the church. In the midnight, his
mot~er (PW2) heard the beating sounds of vehicle and woke
him up. He found 50-60 persons beating the vehicle by lathis F
in which Graham Staines and his two sons had slept. Three-
four of them put the straw beneath the empty vehicle and lit the
·straw by matchsticks. After setting the empty vehicle ablaze,
those persons put straw beneath the vehicle of Graham Staines
and his two sons and ignited the same. Those two vehicles G
caught fire and began to burn. The witness identified four
persons, namely, Dara Singh (A1), Turam Ho (A12), Daya
Patra (A14} and Rajat Das (A2) as the persons beating the
vehicle and setting on fire. .The fact remains that admittedly
H
960 SUPREME COURT REPORTS [2011] 1 S.C.R.
A he did not report the incident to his mother about what he had
seen during the occurrence. He also admitted that there was
a police camp from the next day of the incident. However, he
did not make any statement to the State Police and only for the
first time his statement was recorded by the CBI i.e., five months
s after the occurrence.
11. It is relevant to note that the incident took place in the
midnight of 22.01.1999/23.01.1999. Prior to that, number of
investigating officers had visited the village of occurrence.
Statements of most of the witnesses were recorded by PW 55,
C an officer of the CBI. In the statements recorded by various
IOs, particularly, the local police and State CID these eye
witnesses except few claim to have identified any of the
miscreants involved in the incident. As rightly observed by the
High Court, for a long number of days, many of these eye-
D witnesses never came forward before the IOs and the police
personnel visiting the village from time to time claiming that they
had seen the occurrence. In these circumstances, no
importance need to be attached on the testimony of these eye-
witnesses about their identification of the appellants other than
E Dara Singh (A 1) and Mahendra Hembram (A3) before the trial
Court for the first time without corroboration by previous TIP
held by the Magistrate in accordance with the procedure
established. It is well settled principle that in the absence of
any independent corroboration like TIP held by judicial
F Magistrate, the evidence of eye-witnesses as to the
identification of the appellants/accused for the first time before
the trial Court generally cannot be accepted. As explained in
Manu Sharma vs. State (NCT of Delhi) (2010) 6 SCC 1 case,
that if the case is supported by other materials, identification
G of the accused in the dock for the first time would be
permissible subject to confirmation by other corroborative
evidence, which are lacking in the case on hand except for A 1
and A3.
12. In the same manner, showing photographs of the
H
RABINDRA KUMAR PAL @ DARA SINGH v. 961
REPUBLIC OF INDIA [P. SATHASIVAM, J.)
miscreants and identification for the .first time in the trial Court .A
~ without being corroborated by TIP held before a Magistrate or
without any other material may not be helpful to the prosecution
case. To put it clear, the evidence of witness given in the court
as to the identification may be accepted only if he identified
the same persons in .a previously held TIP in jail. It is true that. B
absence of TIP may not be fatal to the prosecution. In the case
on hand, (A1) and (A3) were identified and also corroborated
by the evidence of slogans given in his name and each one of
the witnesses asserted the said aspect insofar as they are
concerned. We have also adverted to the fact that none of these c
witnesses named the offenders in their statements except few
recorded by 10s in the course of investigation. Though an
explanation was offered that out of fear they did not name the
offenders, the fact remains, on the next day of the incident,
Executive Magistrate and top level police officers were camping 0
the village for quite some time. Inasmuch as evidence of the
identification of the accused during trial for the first time is
inherently weak in character, as a safe rule· pf- prudence,
generally it is desirable to look for corroboration of the sworn
testimony of witnesses in court as to the identity,of the accused E
who are strangers to them, in the form of earlier TIP. Though
some of them were identified by the photographs except (A 1)
and (A3), no other corroborative material was shown by the
prosecution.
13. Now let us discuss the evidentiary value of photo F
identification and identifying .the accused in the dock for the first
time. Learned Addi. Solicitor General, in support of the ·
prosecution case about the photo identification parade and
dock identification, heavily relied on the decision of this Court
in Manu Sharma (supra). It was argued in that case that PW G
- ·~ 2 Shyan Munshi had left for Kolkata and thereafter, photo
identification was got done when SI Sharad Kumar, PW 78
wentto Kolkata to get the identification done by picking up from
the photographs wherein he identified the accused Manu
Sharma though he refused to sign the same. However, in the H
court, PW 2 Shyan Munshi refused to reco~~ise him. In any
962 SUPREME COURT REPORTS [2011) 1 S.C.R.
A case, the factum of photo identification by PW 2 as witnessed
by the officer concerned is a relevant and an admissible piece ~
of evidence. In para 254, this Court held:
"Even a TIP before a Magistrate is otherwise hit by Section
162 of the Code. Therefore to say that a photo identification
B
is hit by Section 162 is wrong. It is not a substantive piece
of evidence. It is only by virtue of Section 9 of the Evidence
Act that the same i.e. the act of identification becomes
admissible in court. The logic behind TIP, which will include
photo identification lies in the fact that it is only an aid to
c investigation, where an accused is not known to the
· witnesses, the 10 conducts a TIP to ensure that he has got
the right person as an accused. The practice is not borne
out of procedure, but out of prudence. At best it can be
brought under Section 8 of the Evidence Act, as evidence
D of conduct of a witness in photo identifying the accused in
the presence of an 10 or the Magistrate, during the course
of an investigation."
It was further held:
E
It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position
in law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
F persons, are relevant under Section 9 of the Evidence Act.
As a general·r-ule, the substantive evidence of a witness
is the statemenfmade in court. The evidence of mere
identificaUon of the accused person at the trial for the first!
time is from its'very nature inherently of a weak character.
G The purpose of a prior test identification, therefore, is to
test and strengthen the trustworthiness of that evidence. I~
is, accordingly, considered a safe rule of prudence to
generally look for corroboration of the sworn testimony o
witnesses in court as to the identity of the accused whol
H are strangers to them, in the form of earlier identificationi
RABINDRA KUMAR PAt. @ DARA SINGH v. 963
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
proceedings. This rule of prudence, however, is subject to A
exceptions, when, for example, the court is impressed by
a particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification
parades belong to the stage of investigation, and there is
no provision in the Code which obliges the investigating B
agency to hold or confers a right upon the accused to claim
a test identification parade. They do not. constitute
substantive evidence and these parades are essentially
governed by Section 162 of the Code. Failure to hold a
test identification parade would net make inadmissible the c
evidence of identification in court. T~e weight to be
attached to such identification should be a matter for the
courts,of fact. In appropriate cases it may accept the
evidence of identification even without insisting on
corroboration.
D
It was further held that "the photo identification and TIP are only
aides in the investigation and do not form substantive evidence.
The substantive evidence is the evidence in the court on oath".
14.. In Umar Abdul Sakoor Sorathia vs. Intelligence E
Officer, Narcotic Control Bureau, AIR 1999 SC 2562, the
following conclusion is relevant:
"12. In the present case prosecution does not say that they
would rest with the identification made by Mr. Mkhatshwa
when the photograph was shown to him. Prosecution has F
to examine him as a witness in the court and he has to
identify the accused in the court. Then alone it would
become substantive evidence. But that does not mean that
at this stage the court is disabled from considering the
prospect of such a witness correctly identifying the G
appellant during trial. In so considering the court can take
into account the fact that during investigation the
photograph of the appellant was shown to the witness and
he identified that person as the one whom he saw at the
relevant time" H
964 SUPREME COURT REPORTS [2011) 1 S.C.R.
A 15. In Jana Yadav vs. State of Bihar, (2002) 7 SCC 295,
para 38, the following conclusion is relevant: ~
"Failure to hold test identification parade does not make
the evidence of identification in court inadmissible, rather .t
the same is very much ~dmissible in law, but ordinarily
B
identification of an accused by a witness for the first time
in court should not form the basis of conviction, the same
being from its very nature inherently of a weak character ..-'
unless it is corroborated by his previous identification in
the test identification parade or any other evidence. The
c previous identification in the test identification parade is
a check valve to the evidence of identification in court of
an accused by a witness and the same is a rule of
prudence and not law.
D It is clear that identification of accused persons by witness in
dock for the first-time though permissible but cannot be given ...
credence without further corroborative evidence. Though some
of the witnesses identified some of the accused in the dock as
mentioned above without corroborative evidence the dock
.E identification alone cannot be treated as substantial evidence,
though it is permissible.
16. Mr. Tulsi, learned senior counsel for the accused
heavily commented on the statements of eye-witnesses which, --
according to him, are contradictory to each other on material
F points. He highlighted that exaggerated and improved version
of the incident makes it difficult to place implicit reliance on the
statements of any of these witnesses. He cited various
instances in support of his claim.
G (a) As regards the number of persons who have allegedly ~ -
attacked the vehicles, it was pointed out that PW 23 - Joseph
Marandi (brother of PW 15)/Christian/15 years at the time of
incident) has stated that 20-22 persons surrounded the vehicle.
On the other hand, PW 39 - Soleman Marandi and PW 10 -
H Nimai Hansda deposed that 30/40 persons surrounded the
RABINDRA KUMAR PAL @ DARA SINGH v. 965 .
. REPUBLIC OF INDIA [P. SATHASIVAM, J.]
vehicle. PW 15 - Mathai Marandi found 40/50 persons were A
beating with lathis. PW 43 - Labial Tudu (son of PW 2)
deposed that 50/60 persons were beating the vehicle whereas ·
PW 2 - Basi Tudu found 60 persons going towards the church.
PW 3, Paul Murmu found 60/70 persons putting straw beneath
the vehicle and setting fire. PW 36 - Raghunath Oohal · B
mentioned that about 60-70 people gathered in front of the
church.
(b} As regards straw being kept on the roof of the vehicle
s to prevent cold, PWs 31 10, 11, 15, 36, 39, 43, 45 and 52 C
mentioned different versions.
(c} With regard to whether there was a light or not which
is vital for identification of miscreants prior to vehicle caught
fire, PW 2 has stated that Moon had already set and he
identified Chenchu and A 7 in the light of lamp (dibri} put in the D
verandah. On the other hand, PW 5, who was 11 years old at
the time of evidence has mentioned that it was dark night. PW
11 has stated that he had not seen any lamp burning in the
verandah of neighbours but saw some miscreants due to
illumination of fire. PW 43 has stated that there is no electricity E· I
supply in the village and stated that they do not keep light in
verandah while sleeping inside the house during night.
(d) About chilly wintry night, PW3 has stated it was chilly
night with dew dropping whereas PW15 has stated that he
cannot say whether there was fog at the night of occurrence F
and PW 36 has stated it was wintry night and PW52 has stated
fog occurs during the month of December and January and he
could not say if there was any fog at the night of occurrence.
(e) With regard to clothes worn by attackers, PW36 has G
stated that A 1 was wearing a Punjabi Kurta, A3 and A 12 were
wearing a banian. PW19 has stated that he saw 9 persons
out of which 8 were wearing trousers and shirts and one person
who was addressed as Dara was wearing a lungi and Punjabi
Kurta. PW39 has stated that during winter season people H
966 SUPREME COURT REPORTS [2011) 1 S.C.R.
A usually come with their body covered. PW52 has stated that
usually people wear winter clothing during December and •
January.
(f) With regard to the aspect whether the accused persons
B had covered. their faces, PW 4 who is the informant has stated
that the faces of the accused were covered. On the other hand,
PWs 11, 15 and 36 have asserted that none covered their
faces.
(g} As regard to who lit the fire, PW3 has stated that a sh.art
C person lit fire. PW1 O has mentioned that he did not see anyone
whereas PW11 has stated that number of people set fire.
PW32 has mentioned that there was no gathering near the
vehicles when they caught fire. PW 36 has stated not seen any
villager in between the house of the PW4 and the Church· and
D PW39 has stated he had not seen any female nearthe place
of occurrence.
(h} As regard to whether Nagin dance was over or not, PW
32 had deposed that when the vehicle caught fire, Nagin dance
E was being performed whereas PW 39 has deposed that dance
continued throughout the night.
(i} Whether Nagin dance was visible from the place of
occurrence, PW 3 has stated that it was not visible due to
darkness. PW 4 has stated the distance between Nagin dance
F and Church is 200 ft. PW 5 has stated that Church was not
visible from the place of Nagin dance and the distance was
200 ft. PW 6 has mentioned that Church was visible from the
place of Nagin dance and distance was 200 ft and finally PW
32 has stated the church was visible from the place of Nagin
G dance.
(j} With regard to distance between place of occurrence
and Nagin dance, PW 15 has mentioned the distance is 200
ft. PW 32 has stated that vehicles were visible from the place
H of Nagin dance, PW 36 has stated Nagin dance staged 10-12
RABINDRA KUMAR PAL @· DARA SINGH v. 967
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
houses apart from Church at front side whereas PW 39 has A
stated Nagin dance staged 4 houses apart from Chruch and
PW 43 has stated that it was staged 5 houses apart from
church and he admitted that he was not sure of the distance
between church and the place of Nagin dance.
B
(k) With regard to their arrival at the place of occurrence,
PW 11 has stated that PWs 4, 15 and 23 came to the place of
occurrence an hour after the miscreants left the place whereas
they deposed that they were present there from the beginning.
PW 10 has stated that he woke up on hearing bursting and C
beating sound. PW 15 has deposed that he went to the huts
behind the church and called PWs 10, 3 and others. PW 3 has
stated that he was woken up by PW 10.
17. By pointing out these contradictions, Mr. Tulsi
submitted that the presence of these witnesses becomes D
doubtful. However, if we see these witnesses through
microscope, it is true that the above mentioned contradictions
would be visible and clear but by and large they explained the
prosecution case though they could not identify all the accused
persons with clarity except Dara Singh (A1) and Mahendra E
Hembram (A3). By virtue of these minor contradictions, their
testimony cannot be rejected in toto. But, by and large, there
are minor contradictions in their statements as demonstrated
by Mr. Tulsi. In the face of the above-mentioned difference in
the evidence of prosecution witnesses with regard to light, F
clothing, number of accused persons, fog, faces covered or not,
it is not acceptable in toto except certain events and incidents
which are reliable and admissible in evidence.
CONFESSIONS:
G
18. It was submitted that confessions of various accused
persons, namely, A9, A 11 and A 12 under Section 164 Cr.P.C.
cannot be considered to be voluntary on account of the fact that
all the co-accused persons were produced before the
Magistrate from police custody and were remanded back to H
968 SUPREME COURT REPORTS [2011] 1 S.C.R.
A police custody. It was further highlighted that accused No. 14
was produced from police custody for recording his confession ...._
while A 13 made his statement when he was on bail and in no
case the Magistrate ensured the accused persons that if they
decline they would not be sent to police custody. It was further
B highlighted that illiterate accused persons cannot be expected
to have knowledge of finest nuances of procedure. It was
pointed that besides all confessions being exculpatory and
made after conspiracy ceases to be operative are inadmissible.
Finally, it was stated that Section 164 Cr.P.C. requires faithful
.,....
c compliance and failure impairs their evidentiary value.
19. Section 164 Cr.P.C. speaks about recording of
confessions and statements. It reads thus:
"164. Recording of confessions and statements. (1)
D Any Metropolitan Magistrate or Judicial Magistrate may,
whether or not he has jurisdiction in the case, record any _.,
confession or statement made to him in the course of an
investigation under this Chapter or under any other law for
the time being in force, or at any, time afterwards before
E the commencement of the inquiry or trial:
Provided that any confession or statement made under this
sub-section may also be recorded by audio-video
electronic means in the presence of the advocate of the
person accused of an offence:
-
F
Provided that no confession shall be recorded by a police
officer on whom any power of a Magistrate has been
conferred under any law for the time being in force.
G
(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it may
be used as evidence against him; and the Magistrate shall
-
not record any such confession unless, upon questioning
the person making it, he has reason to believe that it is
H
bear, made voluntarily.
RABINDRA KUMAR PAL @ DARA SINGH v. 969
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
(3) If at any time before the confession is recorded, the A
person appearing before the Magistrate states that he is
not willing to make the confession, the Magistrate shall not
authorize the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner B
. provided in section 281 for recording the examination of
an accused person and shall be signed llY the person
....... ~ making the confession; and the Magistrate shall make a
memorandull) at the foot of such record to the following
effect.
c
"I have explained to {name} that he is not bound to
make a confession and that, if he does so, any
confession he may make may be used as evidence
against him and I believe that this confession was
voluntarily made. It was taken in my presence and D
hearing, and was read over to the person making
it and admitted by him to be correct, and it contains
a full and true account of the statement m"'de by
him.
E
{Signed} AB.
Magistrate
(5) Any statement {other than a confession) made under
sub-section (1) shall be recorded in such manner F
hereinafter provided for the recording of evidence as is,
in the opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have
power to administer oath to the person whose statement
...... is so recorded. · G
(6) The Magistrate recording a confession or statement
under this section shall forward it to the Magistrate by
whom the case is to be inquired into or tried. •
20. While elaborating non-compliance of mandates of H
970 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Section 164 Cr.P.C., Mr. Tulsi, learned senior counsel
appearing for the accused cited various instances.
(a) Accused No. 9, Rabi Soren, was arrested by the
investigating agency and remanded to police custody for 7 days
8 i.e. from 20.05.1999. It is their claim that on 18.05.1999,
Accused No.9 made a statement under Section 164 Cr.P.C.
and thereafter remanded back to police custody. It was also
pointed out thatin his statement under Section 313 Cr.P.C. the
accused person stated that he was beaten by the investigating
C agency.
(b) Another instance relates to Mahadev Mahanta, Accused
No. 11 who was arrested on 01.07.1999 by the investigating
agency and he was remanded to police custody. However, on
08.07.1999, Accused No. 11 made a statement under Section
D 164 Cr.P.C. PW 55, 1.0. has stated that the statement of the
accused was recorded under Section 164 Cr.P.C. that he was
under police custody and he was remanded back to police
custody. In his statement under Section 313 Cr.P.C. he also
stated that he was beaten by the investigating agency.
E
(c) In the case of Turam Ho Accused No. 12, he was
arrested on 13.05.1999 by the Investigating Agency and from
19.05.1999 to 23.05.1999 the accused person was in custody
of the investigating agency. While so, on 21.05,1999, the
accused No. 12 made a statement under Section 164 Cr.P.C
F and thereafter remanded back to police custody. It was pointed
out that he also stated in his statement under Section 313
Cr.P.C. that he was beaten by the investig!'lting agency.
(d) The next instance relates to Umakanta Bhoi, Accused
, G No. 13 who refused to make a statement under Section 164
Cr.P.C prayed by 1.0. to be put for 16.03.1999 for recording
statement. It was directed to jail authority to keep the accused
under calm and cool atmosphere. A 13 was produced from
. Judicial Custody for recording statement under Section 164
H
RABINDRA KUMAR PAL @ DARA SINGH v. 971
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
I
Cr.P.C. and he refused to make a statement. However, on A
31.08.1999, he made a confessional statement.
(e) In the case of Dayanidhi Patra, Accused No. 14, on
21.09.1999, he was arrested by the Investigating Agency. On
24.09.1999, Learned ASJ granted police remand for 7 days B
i.e. on 01.10.1999 and that cm that day A 14 made a statement
under Section 164 Cr.P.C. It was pointed out that in his
statement under Section 313 Cr.P.C. the accused person
stated that he was beaten by the investigating agency.
21. Before analyzing the confessional statements of C
various accused persons and its applicability and the procedure
followed by the Magistrate in recording the statement, let us
consider various decisions touching these aspects.
22. In Bhagwan Singh and Ors. vs. State of M.P. (2003)
0
3 sec 21, while considering these issues, it was held:
"27 ...... The first precaution that a Judicial Magistrate is
required to take is to prevent forcible extraction of
confession by the prosecuting agency (see State of U.P.
v. Singhara Singh, AIR 1964 SC 358). It was also held by E
this Court in the case of Shivappa v. State of Karnataka,
(1995) 2 SCC 76 that the provisions of Section 164 CrPC
~- must be complied with not only in form, but in essence.
Before proceeding to record the confessional statement,
a searching enquiry must be made from the accused as F
to the custody from which he was. produced and the
treatment he had been receiving in such custody in order
to ensure that there is no scope for doubt of any sort of
extraneous influence proceeding from a source interested
in the prosecution. G
28. It has also been held that the Magistrate in particular
should ask the accused as to why he wants to make a
.statement which surely shall go against his interest in the
trial. He should be granted sufficient time for reflection. He
972 SUPREME COURT REPORTS [2011) 1 S.C.R.
A should also be assured of protection from any sort of
apprehended torture or pressure from the police in case
he declines to make a confessional statement.
Unfortunately, in this case, the evidence of the Judicial
Magistrate (PW 1) does not show that any such precaution
8 was taken before recording the judicial confession.
29. The confession is also not recorded in questions-and-
answers form which is the manner indicated in the criminal
court rules. • _.
c 30. It has been held that there was custody of the accused
Pooran Singh with the police immediately preceding the
making of the confession and it is sufficient to stamp the
confession as involuntary and hence unreliable. A judicial
confession not given voluntarily is unreliable, more so
D when such a confession is retracted. It is not safe to rely
on such judicial confession or even treat it as a
corroborative piece of evidence in the case. When a
judicial confession' is found to be not voluntary and more
so when it is retracted, in the absence of other reliable
E evidence, the conviction cannot be based on such retracted
judicial confession. (See Sh<mkaria v. State of Rajasthan,
(1978) 3 sec 435 (para 23)"
23. In Shivappa vs. State of Kamataka (1995) 2 SCC 76, ·
while reiterating the same principle it was held:-
F
"6. From the plain language of Section 164 CrPC and the
rules and guidelines framed by the High Court regarding
the recording of confessional statements of an accused
under Section 164 CrPC, it is manifest that the said
provisions emphasise an inquiry by the Magistrate to
G
ascertain the voluntary nature of the confession. This inquiry
appears to be the most significant and an important part
-- /
of the duty of the Magistrate recording the confessional
statement of an accused under-Sed:ion 164 CrPC. The
failure of the Magistrate to put such questions from which
H
RABINDRA KUMAR PAL @ DARA SINGH v. 973
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
he could ascertain the voluntary nature of the confession /:(
-+· detracts so materially from the evidentiary value of the
confession of an accused that it would not be safe to act ·
upon the same. Full and adequate compliance not merely
in form but in essence with the provisions of Section 164
. CrPC and the rules framed by the High Court is imperative B
and its non-compliance goes to the root of the
Magistrate's jurisdiction to record the confession anc:l
..~ ....
renders the confession unworthy of credence. Before
proceeding to record the confessional statement, a
searching enquiry must be made from the accused as to c
the custody from which he was produced and the treatment
he had been receiving in such custody in order to ensure
that there is no scope for doubt of any sort of extraneous
influence proceeding from a source interested in the
prosecution still lurking in the mind of an accused. In case D
the Magistrate discovers on such enquiry that there is
ground for such supposition he should give the accused
sufficient time for reflection before he is asked to make
his statement and should assure himself that during the
time of reflection, he is completely out of police influence:
E
An accused should particularly be asked the reason why
he wants 'o make a statement which would surely go
against his self-interest in course of the trial, even if he
'--<!'' contrives subsequently to retract the confession. Besides
administering the caution, warning specifically provided for
in the first part of sub-section (2) of Section 164 namely, F
a
that the accused is not bound to make statement and
that if he makes one it may be· used against him as
evidence in relation to his complicity in the offence at the
trial, that is to follow, he should also, in plain language, be
assured of protection from any sort of apprehend~d torture G
-c
or pressure from such extraneous agents as the police or
the like in case he declines to make a statement and be
given the assu.rance that even if he declined to make the
confession, he shall not be remanded to police custody.
H
974 SUPREME COURT REPORTS [2011] 1 S.C.R.
A 7. The Magistrate who is entrusted with the duty of
recordirig confession of an accused coming from police
custody or jail custody must appreciate his function in that
behalf as one of a judicial officer and he must apply his
judicial mind to ascertain and satisfy his conscience that
B the statement the accused makes is not on account of any
extraneous influence on him. That indeed is the essence
of a 'voluntary' statement within the meaning of the
provisions of Section 164 CrPC and the rules framed by ~-· .......
the High Court for the guidance of the subordinate courts.
c Moreover, the Magistrate must not only be satisfied as to
the voluntary character of the statement, he should also
make and leave such material on the record in proof of the
compliance with the imperative requirements of the
statutory provisions, as would satisfy the court that sits in
judgment in the case, that the confessional statement was
D
made by the accused voluntarily and the statutory
i'
provisions were strictly complied with.
8. From a perusal of the evidence of PW 17, Shri
Shitappa, Additional Munsif Magistrate, we find that
E though he had administered the caution to the appellant
that he was not bound to make a statement and that if he
did make a statement that may be used against him as
evidence but PW 17 did not disclose to the appellant that
he was. a Magistrate and that the confession was being
F recorded by him in that capacity nor made any enquiry to
find out whether he had been influenced by anyone to make
the confession. PW 17 stated during his deposition in court:
"I have not stated to the accused that I am a Magistrate"
and further admitted: "I have not asked the accused as to
G whether the police have induced them (Chithavani) to give
·-r--
the statement." The Magistrate, PW 17 also admitted that
"at the time of recording the statement of the accused no
police or police officials were in the open court. I cannot
tell as to whether the police or police officials were present
H in the vicinity of the court". From the memorandum 1
RABINDRA KUMAR PAL @ DARA SINGH v. 975
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
prepared by the Munsif Magistrate, PW 17 as also from A
...... his deposition recorded in court it is further revealed that
the Magistrate did not lend any assurance to the appellant
that he would not be sent back to the police custody in
case he did not make the confessional statement. Circle
Police Inspector Shivappa Shanwar, PW 25 admitted that B
the sub-jail, the office of the Circle Police Inspector and the
police station are situated in the same premises. No
,...., . contemporaneous record has been placed on the record
to show that the appellant had actually been kept in the
sub-jail, as ordered by the Magistrate on 21-7-1986 and c
that he was out of the zone of influence by the police
·keeping in view the location of the sub-jail and the police
station. The prosecution did not lead any evidence to show
that any jail authority actually produced the appellant on 22-
7-1986 before the Magistrate. That apart, neither on 21- D
7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW
17 question the appellant as to why he wanted to make
the confession or as to what had prompted him to make
the confession. It appears to us quite obvious that the
Munsif Magistrate, PW 17 did not make any serious
E
attempt to ascertain the voluntary character of the
confessional statement. The failure of the Magistrate to
make a real endeavour to ascertain the voluntary character
"'T of the confession, impels us to hold that the evidence on
the record does not establish that the confessional
statement of the appellant recorded under Section 164 F
CrPC was voluntary. The cryptic manner of holding the
enquiry to ascertain the voluntary nature of the confession
has left much to be desired and has detracted materially
from the evidentiary value of the confessional statement. It
' ..._,-'
would, thus, neither be prudent nor safe to act upon the G
confessional statement of the appellant.. .. ."
24. In Dagdu and Others vs. State of Maharashtra, (1977)
CC 68, the following paragraph is relevant:-
H
976 SUPREME COURT REPORTS [2011) 1 S.C.R.
A "51. Learned Counsel appearing for the State is right that
the failure to comply with Section 164(3) of the Criminal ·~
Procedure Code, or with the High Court Circulars will not
render the confessions inadmissible in evidence.
Relevancy and admissibility of evidence have to be
B determined in accordance with the provisions of the
Evidence Act. Section 29 of that Act lays dow.n that if a
confession is otherwise relevant it does not become
irrelevant merely because, inter alia, the accused was not
warned that he was not bound to make it and the evidence
c of it might be given against him. If, therefore, a confession
does not violate any one of the conditions operative under
Sections 24 to 28 of the Evidence Act, it will be admissible
in evidence. But as in respect of any other admissible
evidence, oral or documentary, so in the case of
confessional statements which are otherwise admissible,
D
the Court has still to consider whether they can be
accepted as true. If the facts and circumstances
surroundiny the making of a confession appear to cast a
doubt on the veracity or voluntariness of the confession,
the Court may refuse to act upon the confession even if it
E is admissible in evidence. That shows how impbrtant it is
for the Magistrate who records the confession to satisfy
himself by appropriate questioning of the qonfessing
accused, that the confession is true and voluntary. A strict
and faithful compliance with Section 164 of the Code and
F with the instructions issued by the High Court affords in a
large measure the guarantee that the confession is
voluntary. The failure to observe the safeguards prescribed
therein are in practice calculated to impair the evidentiary
value of the confessional statements."
G
25. Davendra Prasad Tiwari vs. State of U.P. (1978) 4 Y' ~
sec 474, the following conclusion arrived at by this Court is
relevant:-
"13 ..... It is also true that before a confessional statement
H
RABINDRA KUMAR PAL @ DARA SINGH v. 977
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
made under Section 164 of the Code of Criminal •A ./
Procedure can be acted upon, it must be shown to be
voluntary. and free from police influence and that the
confessional statement made by the appellant in the
instant case cannot be taken into account, as it suffers from
serious infirmities in that (1) there is.no contemporaneous B
record to show that the appellant was actually kept in jail
as ordered on September 6, 1974 by Shri R.P. Singh,
Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who
recorded the so called confessional statement of the
appellant did not question him as to why he was making c
the confession and (3) there is also nothing in the statement
of the said Magistrate to show that he told the appellant .
that he would not be remanded to the police lock-up even
if he did not confess his guilt. It cannot also be gainsaid
that the circumstantial evidence relied upon by the 0
prosecution must be complete and incapable of
explanation of any other hypothesis than that of the guilt of
the accused."
26. In Kalawati & Ors. vs. State of Himachal Pradesh,
53 SCR 546 at 631, this Court held: E
• ... In dealing with a criminal case where the prosecution
relies upon the confession of one accused person against
another accused person, the proper approach to adopt is
to consider the other evidence against such an accused F
person, and if the said evidence appears to be satisfactory
and the court is inclined to hold that the said evidence may
sustain the charge framed against the said accused
person, the court turns to the confession with a view to
assure itself that the conclusion which it is inclined to draw G
from the other evidence is right."
27. In State thr. Superintendent of Police, CBI/SIT vs.
lini and Others (1999) 5 SCC, 253 at 307, the following
-agraphs are relevant which read as under:-
H
978 SUPREME COURT REPORTS [2011] 1 S.C.R.
A "96. What is the evidentiary value of a confession made
by one accused as against another accused apart from ~
Section 30 of the Evidence Act? While considering that
aspect we have to bear in mind that any confession, when
it is sought to be used against another, has certain inherent
B weaknesses. First is, it is the statement of a person who
claims himself to be an offender, which means, it is the
version of an accomplice. Second is, the truth of it cannot
be tested by cross_.examination. Third is, it is not an item
' .....
of evidence given on oath. Fourth is, the confession was
c made in the absence of the co-accused against whom it
is sought to be used.
97. It is well-nigh settled, due to the aforesaid weaknesses,
that confession of a co-accused is a weak type of
evidence. A confession can be used as a relevant ~
D evidence against its maker because Section 21 of the
_.,
Evidence Act permits it under certain conditions. But there
is no provi::;ion which enables a confession Jo be used as
a relevant evidence against another person. It is only
Section 30 of the Evidence Act which at least permits the
E court to consider such a confession as against another
person under the conditions prescribed therein. If Section
30 was absent in the Evidence Act no confession could
ever have been used for any purpose as against another
co-accused until it is sanctioned by another statute. So, if
F Section 30 of the Evidence Act is also to be excluded by
virtue of the non obstante clause contained in Section 15(1)
of TADA, under what provision can a confession of one
\ accused be used against another co-accused at all? It
must be remembered that Section 15(1) of TADA does
G not say that a confession can be used against a co-
accused. It only says that a confession would be admissible
in a trial of not only the maker thereof but a co-accused,
abettor or conspirator tried in the same case.
y-
•
98. Sir John Beaumont speaking for five Law Lords of the
H
RABINDRA KUMAR PAL @ DARA SINGH v. 979
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
Privy Council in Bhuboni Sahu v. R., AIR 1949 PC 257 A
had made the following observations:
"Section 30 seems to be based on the view that an
admission by an accused person of his own guilt affords
some sort of sanction in support of the truth of his
B
confession against others as well as himself. But a
confession of a co-accused is obviously evidence of a very
weak type. It does not indeed come within the definition
.,,_ '
of 'evidence' contained in Section 3, Evidence Act. It is
not required to be given on oath, nor in the presence of
the accused, and it cannot be tested by cross-examination. c
It is a much weaker type of evidence than the evidence of
an approver which is not subject to any of those infirmities.
Section 30, however, provides that the court may take the
confession into consideration and thereby, no doubt,
makes it evidence on which· the court may act; but the D
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." E
99. The above observations had since been treated as the
approved and established position regarding confession
vis-a-vis another co-accused. Vivian Bose, J., speaking for
a three-Judge B~nch in Kashmira Singh v. State of M.P., F
AIR 1952 SC 159 had reiterated the same principle after
quoting the aforesaid observations. A Constitution Bench
of this Court has followed it in Haricharan Kurmi v. State
of Bihar, AIR 1964 SC 1184."
' ·-y 28. In State of Maharashtra vs. Damu (2000) 6 SCC 269, G
same principles had been reiterated which read as under:-
"19. We have considered the above reasons and the
arguments addressed for and against them. We have
H
980 SUPREME COURT REPORTS [2011) 1 S.C.R.
A realised that those reasons are ex facie fragile. Even
otherwise, a Magistrate who proposed to record the ~
confession has to ensure that the confession is free from
police interference. Even if he was produced from police
custody, the Magistrate was not to record the confession
B until the lapse of such time, as he thinks necessary to
extricate his mind completely from fear of the police to have
the confession in his own way by telling the Magistrate the
true facts. '~
25. We may make it clear that in Kashmira Singh .this Court
c has rendered the ratio that confession cannot be made the
foundation of conviction in the context of considering the
utility of that confession as against a co-accused in view
.of Section 30 of the Evidence Act. Hence the observations
in that decision cannot be misapplied to cases in which
D confession is considered as against its maker. The legal
position concerning ·confession vis-a-vis the confessor +
himself has been well-nigh settled by this Court in Sarwan
Singh Rattan Singh v. State of Punjab as under:
E "In law it is always open to the court to convict an accused
on his confession itself though he has retracted it at a later
stage. Nevertheless usually courts· require some
corroboration to the confessional statement before
convicting an accused person on such a statement. What
F amount of corroboration would be necessary in such a
case would always be a question of fact to be determined
in the light of the circumstances of each case."
This has been followed by this Court in Kehar Singh v.
State (Delhi Admn.)"
G
29. The following principles emerge with regard to Section
164 Cr.P.C.:-
(i) The provisions of Section 164 Cr.P.C. must be complied
with not only in fonn, but in essence.
H
RABINDRA KUMAR PAL @ DARA SINGH v. 981
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
(ii) Before proceeding to record the confessional A
statement, a searching enquiry must be made from the accused
as to the custody from which he was produced .and the
treatment he had been receiving in such custody in order to
ensure that there is no scope for doubt of any sort of extraneous
influ~nce proceeding from a source interested in the B
prosecution.
(iii) A Magistrate should ask the accused as to why he
wants to make a statement which surely shall go against his
interest in the trial.
c
(iv) The maker ~hould be granted sufficient time for
reflection.
(v) He should be assured of protection from any sort of
· apprehended torture or pressure from the p9li,ce in case he D
._. declines to make a confessional statement.
I
(vi) A judicial confession not given voluntarily is unreliable,
more so, when such a confession is retracted, the conviction
cannot be based on such retracted judicial confession.
E
(vii) Non-compliance of Section 164 Cr.P.C. goes to 'he
root of the Magistrate's jurisdiction to record the confession
and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be
F
completely out of police influence. The judicial officer, who is
entrusted with the duty of recording confession, must apply his
judicial mind to ascertain and satisfy his conscience that the
statement of the accused is not on account of any extraneous
influence on him.
G
(ix) At the time of recording the statement of the accused,
no police or police official shall be present in the open court.
(x) Confession of a co-accused is a weak typeof evidence.
H
982 SUPREME COURT REPORTS (2011] 1' S.C.R.
A (xi) Usually the Court requires some corroboration from the
confessional statement before convicting the accused person
on such a statement.
Judicial Magistrates (PWs-29 & 34)
B 30. Ashok Kumar Agrawal, PW29 and Tojaka Bharti,
PW34, Judicial Magistrates recorded the confessional
statements of some of the accused. Judicial Magistrate, PW29
recorded the confessional statement of Rabi Soren and Turam
Ho and PW34, Judicial Magistrate recorded the confessional
C statement of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi
Patra. It is the claim of Mr. K.T.S. Tulsi, learned senior counsel
for the accused, that the evidence of PW29 and PW34, Judicial
Magistrates shows that they were blissfully unaware of the
stringent responsibility cast on them by Section 164 Cr.P.C.
0 According to him, their evidence create an impression that they
were not aware of the difference between the police custody +
and judicial custody nor do they seem to understand the
significance of Section 164 Cr.P.C. He pointed out that why
the first four pages in case of each of the accused persons is
E not signed by the accused is not explained. They neither asked
any searching questions regarding the nature of custody either
from the accused persons or from police nor did they scrutinize
the records to ascertain the same from remand orders. He also
pointed out that none of the accused who have confessed had
F been given the assurance that if they refuse to make any
confession, they would not be remanded to police custody. This
assurance is required for an accused to make an informed
...r decision being fully aware of the consequences of refusing .
31. It is seen from the evidence of PW29, who recorded
G the confession of Rabi Soren, that at the relevant time the
accused was in the custody of CBI and from that custody he
was produced before the Addi. Chief Judicial Magistrate on
18.05.1999. Though PW29 had asked the accused many
things about the voluntariness, the High Court, on analysis of
H his .entire evidence, came to a conclusion that only a rou.tine
RABINDRA KUMAR PAL @ DARA SINGH v. 983
REPU_BLIC OF INDIA [P. SATHASIVAM, J.]
statutory certificate as required under Section 164 Cr.P.C. was A
~ given by him. The High Court also pointed out that he did not
caution that if the accused Rabi Soren refused to make any
confession, he would not be remanded to C.B.I. or Police
custody. He was not informed that if he confessed, such
confession may be used in evidence against him and on that B
basis there was possibility of his being sentenced to.death or
life imprisonment. It was also pointed out that his body was
>-, not checked to find out as to whether he was subjected to
torture when he was in police custody. It was also pointed out
by the High Court that five hours' time was given for reflection c
during which period he was in the custody of his Bench Clerk
in his Chamber. PW29, after recording confessional statement
of Rabi Soren on 18.05.1999, agai"°'remanded him to the
custody of police, i.e. C.B.I. till 20.05.1999. This is clear from
the evidence of PW55 (1.0.). It is relevant to point out that under 0
~ sub-section (3) of Section 164 Cr.P.C. that if ~my accused
refuses to make any confessional statement, such Magistrate
shall not authorize detention of the accused in police custody.
Remanding Rabi Soren to Police custody after his statement
was recorded under Section 164 Cr.P.C. is not justified. As
rightly observed by the High Court, possibility of coercion, threat E
or inducement to the accused Rabi Soren to make the
confession cannot be ruled out. In the same manner,
~ confession of another accused Turam Ho was also recorded
by the very same Magistrate. Here again, the High Court
pointed out that he was not cautioned that if he made any F
confession,. same may be used against him in evidence and
on that basis he may be sentenced to death or imprisonment
for life. Equally he was not cautioned by PW29 that if he
refused to make the confessional statement, he would not be
'""'< remanded to police custody. It is further seen that both of these G
accused, in their confessional statements, made exculpatory
statements. ·
. 32. PW34, Judicial Magistrate, recorded the confessional ·
statement of accused Mahadev Mahanta on 08.07 .1999 H
984 SUPREME COURT REPORTS [2011] 1 S.C.R.
A immediately after his production before him from the police
custody. PW34 was directed by the Addi. C.J.M. to record the
confessional statement of Mahadev Mahanta. It was noted that
he was given only 10 minutes' time for reflection after his .,
production from police custody. The other accused who made
B the confessional statement is Dayanidhi Patra whose statement
was recorded by PW34. The High Court, on corroboration of
the confessional statement,. had found that the entire
confessional statement is exculpatory and he also retracted
from the confession. It was further found that this confessional
c statement was made long after the charge-sheet was filed i.e.
on 22.06.1999. The analysis of evidence of PWs 29. & 34 -
Judicial Magistrates shows that many of the confessional
statements were recorded immediately after production of the
maker after long CBI custody and in some cases after such ·
statements were made and recorded by the Judicial Magistrate,
0
the maker was remanded to police custody. Though the
Magistrates have deposed that the procedure provided under
Section 164 Cr.P.C. has been complied with, various warnings/
cautions required to be given to the accused before recording
E such confession, have not been fully adhered to by them.
33. Apart from the strong observation of the High Court
ab9ut procedural lapse on the part of PWs 29 & 34, we also
verified their statements and requirements in terms of Section
164 Cr.P.C. In the certificate, there is no specific reference
F about the nature of the custody from which these persons were
produced nor about the assurance that they would not be
remanded to police custody if they declined. We have already
pointed out that Section 164 Cr.P.C. requires strict and faithful
compliance of sub-sections 2 to 4, the failure to observe
G safeguards not only impairs evidentiary value of confession but
cast a doubt on nature and voluntariness of confession on which
no reliance can be placed. As rightly observed by the High
Court, no exceptional circumstances could be brought to our
notice by the prosecution in respect of the appellants other than
H A1 and A3.
RABINDRA KUMAR PAL @ DARA SINGH v. 985
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
34. It was next argued that the inCident could not have been A
happened as suggested by the prosecution. According to the
learned senior counsel for the accused the reason of possibility
of the incident which took place in the dead of the night as a
result of the accident from burning of the stove etc. for
generating heat on cold wintry night cannot be ruled out. In B
support of the above contention, he pointed out several
circumstances which are inconsistent with the fire starting by
arson from outside. On going through the entire materials, we
are unable to accept the said contention. Though we noticed
several inconsistencies in the prosecution evidence and the c
accused persons were not specifically identified except A 1 and
A3, the fact remains that the Van in which Graham Staines and
his two children were sleeping were set on fire and burnt to
death due to the cause of the miscreants. In other words, death
of these three persons by setting fire by the miscreants cannot
0
be ruled out. There is no material to conclude that the fire
emanated from inside of the vehicle and then spread to rest of
the vehicle after the fuel tank caught fire. There is no basis for
such conclusion though the prosecution witnesses could not pin-
point and identify the role of each accused.
E
35. Another question which we have to consider is whether
the Police (CBI) had the power under the Cr.P.C. to take
specimen signature and writing of A3 for examination by the
expert. It was pointed out that during investigation, even the ·
Magistrate cannot direct the. accused to give his specimen F
signature on the asking of the police and only in the amendment
of the Cr.P.C. in 2005, power has been given to the Magistrate
to direct any person including the accused to give his specimen
signature for the purpose of investigation. Hence, it was pointed
out that taking of his signature/writings being per se illegal, the . G
report of the expert cannot be used as evidence against him.
To meet the above claim, learned Addi. Solicitor General.
heavily relied on a 11-Judge Bench decision of this Court in
The State of Bombay vs. Kathi Ka/u Oghad and Ors., (1962)
=
3 SCR 1O AIR 1961 SC 1808. This larger Bench was H
986 SUPREME COURT REPORTS [2011) 1 S.C.R.
A constituted in order to re-examine some of the propositions of
law laid down by this Court in the case of M.P. Sharma and ,~
Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors.,
(1954) SCR 1077. After adverting to various factual aspects,
the larger Bench formulated the following questions for
B consideration:
"2 ....... On these facts, the only questions of constitutional
importance that this Bench has to determine are; (1)
whether by the production of the specimen handwritings -
Exs. 27, 28, and 29 - the accused could be said to have
c been 'a witness against himself within the meaning of
Article 20(3) of the Constitution; and (2) whether the mere
fact that when those specimen handwritings had been
given, the accused person was in police custody could, by
·itself, amount to compulsion, apart from any other
D circumstances which could be urged as' vitiating the
consent of the accused in giving those specimen
handwritings. . .. . ..
4 ....... The main question which arises for determination
E in this appeal is whether a direction given by a Court to
an accused person present in Court to give his specimen
writing and signature for the purpose of comparison under
the provisions of section 73 of the Indian Evidence Act
infringes the fundamental right enshrined in Article 20(3)
F of the Constitution.
The following conclusion/answers are relevant:
10. . .. ... Furnishing evidence" in the latter sense could
not have been within the contemplation of the Constitution-
G makers for the simple reason that - though they may have
intended to protect an accused person from the hazards
of self-incrimination, in the light of the English Law on the
subject - they could not have intended to put obstacles in
the way of efficient and effective investigation into crime
H and of bringing criminals to justice. The taking of
RABINDRA KUMAR PAL @ DARA SINGH v. · 987
'
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
impressions or parts of the body of an accused person very A
.~ often becomes necessary to help the investigation of a
crime. It is as much necessary to protect an accused
person against being compelled to incriminate himself, as
to arm the agents of law and the law courts with legitimate
powers to bring offenders to justice. . . . . .•. B
11 ....... When an accused person is called upon by the
Court or any other authority holding an investigation to give
-,. . his finger impression or signature or a specimen of his
handwriting, he is not giving any testimony of the nature of
a 'personal testimony'. The giving of a 'personal testimony'
c
must depend upon his volition. He can make any kind of
statement or may refuse to make any statement. But his
finger impressions or his handwriting, in spite of efforts at
concealing the true nature of it by dissimulation cannot
change their intrinsic character. Thus, the giving of finger D
impressions or of specimen writing or of signatures by an
accused person, though it may amount to furnishing
evidence in the larger sense, is not' tr.eluded within the
expression 'to be a witness'.
E
12....... A specimen handwriting or signature or finger
impressions by themselves are no testimony at all, being
wholly innocuous because they are unchangeable except
in rare cases where the ridges of the fingers or the style
of writing have been tampered with. They are only F
materials for comparison in order to lend assurance to the
Court that its inference based on other pieces of evidence
is reliable.· They are neither oral nor documentary evidence
but belong to the third category of mat~rial evidence which
is outside the limit of 'testimony'.
G
--4 'Y
16. In view of these considerations, we have come to the
following conclusions :-
(1) An accused person cannot be said to have been
compelled to be a witness against himself simply because H
988 SUPREME COURT REPORTS [2011) 1 S.C.R.
A he made a statement while in police custody, without
__ anything more. In other words, the mere fact of being in
police custody at the time when the statement in question
was made would not, by itself, as a proposition of law, lend
itself to the inference that the accused was compelled to
B make the statement, though that fact, in conjunction with
other circumstances disclosed in evidence in a particular
case, would be a relevant consideration in an enquiry
whether or not the accused person had been compelled
.~
to make the impugned statement.
c (2) The mere questioning of an accused person by a police
officer, resulting in a voluntary statement, which may
ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing
D evidence' in its widest ~ignificance; that is to say, as
including not merely making of oral or written statements
but also production of documents or giving materials which
may be relevant at a trial to determine the guilt innocence
of the accused.
E
(4) Giving thumb impressions or impressions of foot or
palm or fingers or specimen writings or showing parts of
the body by way of identification are not included in the
expression 'to be a witness'.
F (5) 'To be a witness' means imparting knowledge in
respect of relevant facts by an oral statement or a
statement in writing, made or given in Court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense
G means giving oral testimony in Court. Case law has gone
beyond this strict literal interpretation of the expression
which may now bear a wider meaning, namely, bearing
testimony in Court or out of Court by a person accused of1
an offence, orally or in writing.
H (7) To bring the statement in question within the prohibition
RABINDRA KUMAR PAL @ DARA SINGH v. 989
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
of Article 20(3), the person accused must have stood in A
_,;... the character of an accused person at the time he made
the statement. It is not enough that he should become an
accused, any time after the statement has been made."
In view of the above principles, the procedure adopted by the s.
investigating agency, analyzed and approved by the trial Court
and confirmed by the High Court, cannot be faulted with. In view
of oral rep'ort of Rolia Soren, PW 4 which was reduced into
,,.. . writing, the evidence of PW 23, two letters dated 01.02.2002
and 02.02.2002 addressed by Mahendra Hembram (A3) to the
trial Judge facing his guilt coupled with the other materials, we
c
are unable to accept the argument of Mr. Ratnakar Dash,
learned senior counsel for Mahendra Hembram (A3) and we
confirm the conclusion arrived by the High Court.
Additional factors-Mahendra Hembram (A3). D
-I;
36. Coming to the role of Mahendra Hembram A3, the
prosecution very much relied on his letters dated 01.02.2002
and 02.02.2002 addressed to the Sessions Judge wherein he
confessed his guilt. Though a serious objection was taken about
E
the admissibility of these two letters, the contents of these two
letters addressed to the Sessions Judge in the course of trial
lend ample corroboration to his identification before the trial
~
Court by Joseph Marandi, PW 23. Even in his case, it is true
that there was no TIP conducted by Judicial Magistrate.
F
However, inasmuch as when he was facing trial, he sent the
above-mentioned two letters to the Sessions Judge which lend
corroboration to his identification in the trial court by PW 23 and
rightly observed by the High Court, the same can be safely relied
-
upon. The evidence reveals that Rolia Soren (PW 4)
accompanied by PW 23 soon after. the incident proceeded to G
! inform the same to the police and finding the police to have
already left for Manoharpur, returned back and finally on the oral
report of PW 4, the Officer In-charge of Anandapur P.S. (PW
52) prepared FIR (Ext. 1/1) and registered a case under
Sections 147, 148, 435, 436 and 302 read with 149 IPC against H
990 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Dara Singh (A 1) and five others. The prosecution has also
relied on a letter (Ext.2 after it was translated to English marked
as Ext. 49) said to have been addressed by Mahendra
Hembram (A3) to Kapura Tudu (PW 9) which, according to the
prosecution, contains his admission of involvement in the
B incident.
37. An excerpt from the letter of Mahendra Hembram may
be translated into English as under:-
. -.-::
"You may be knowing the Manoharpur incident. No one
C ever thought that such a thing will happen in the village. I
had not told any of my family members that such a work
will be done. Dara Singh stayed in our house and did the
work. I also did the work as I had quarrel with the 'Jisu'. 1.
had not disclosed the identity of Dara Singh even to my
D mother. The conspiracy to kill Manoharpur 'Jisu' was
hatched at HOROHND for which I took leave during training /-
period and stayed in our house with Dara Singh for five
days and went to the forest thereafter. The villagers know
that I have done this work as I have got cordial relationship
E with Dara Singh."
This is a confessional statement of accused Mahendra
Hembram (A3) inculpating himself and Dara Singh (A 1).
38. Accused Mahendra Hembram, in his letter dated
F 10.02.1999 (Ex. 2) addressed to his sister-in-law, Kapura Tudu
(PW9), confessed that he along with Dara Singh burnt the 'Jisu'
(Christian Missionary). All the ocular witnesses have testified
that after setting fire to vehicles and burning Graham Staines
and his two sons alive, the miscreants raised slogans "Jai
G Bajrang Bali" and "Dara Singh Zinda bad".
39. Joseph Marandi, PW23 has testified that accused
Mahendra Hembram amongst others set fire to the vehicles.
Mahendra Hembram, in his statement recorded under Section
H 313 Qr.P.C., on 04.02.2002 has stated that he may be the
RABINDRA KUMAR PAL @ DARA SINGH v. 991
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
short statured person. Accused Mahendra Hembram in his A
letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law,
Kapura Tudu (PW9) had confessed to have burnt the Christian
missionary along with Dara Singh. In the course of trial, he filed
· petitions on 01.02.2002 and 02.02.2002 pleading guilty and
. confessing to have set fire to the vehicl.es. In his statement B
recorded under Section 313 Cr.P.C. on 04.02.2002, he has
admitted to have set fire to the vehicles and in his statement
..,. . recorded under Section 313 Cr.P.C. on 24.03.2003 has
admitted to have filed petitions pleading guilty and to have
stated in his earlier examination under Section 313 Cr.P.C. that c
he had set fire to the vehicles. There is no impediment in
relying on a portion of the statement of the accused and finding
him guilty in consideration of the other evidence against him
as laid by the prosecution.
40. It is clear that the letters marked as (Ex. 213) were D
written by Mahendra Hembram though denied by him, contents
of the said two letters ·amount to confession, or in any event
. admission of important incriminating materials. He had been
identified before the trial Court by Joseph Marandi (PW23) as
a participant in the crime. As rightly observed by the High Court, · E
contents of these two letters lend support to the evidence in
identification before the trial Court for the first time as narrated
by PW23. In this way, his identification for the first time in the
trial Court is an exceptional case and even in the absence of
. further corroboration by way of previously held TIP, his F
involvement in the crime is amply corroborated by the above
said letters written by him.
41. Learned Addi. Solicitor General has pointed out that
insofar as Mahendra Hembram is concerned, three types of G
evidence are available against him: a) Confession; b) testimony
of eye-witnesses/identification in court/PW 23 Joseph Marandi;
and c) absconding of the accused. Learned Addi. Solicitor
General while advancing his argument besides referring to the
evidence of PW 23 laid more emphasis on the statement of H
!
992 SUPREME COURT REPORTS [2011) 1 S.C.R.
A the appellant. Though an objection was raised as to the manner
in which the trial Judge questioned A3 with reference to contents
of his letters dated 01.02. 2002 and 02.02.2002, it is relevant
to point out that when the person facing trial insisted to look
into the contents of his letters, the presiding officer concerned
B has to meet his requirement subject to the procedure
established. The learned trial Judge accepted the entire
contents of the admission made by A3 and affording
reasonable opportunity and by following the appropriate .....
procedure coupled with the corroborative evidence of PW 23,
c upheld his involvement and participation in the crime along with
A 1 which resulted in rioting, arson and murder of three persons.
Though learned senior counsel appearing for A3 was critical
on relying upon the letter Ex. 49 said to have been written by
A3 to his Sister-in-law PW 9, it shows that A3 confessed to
D have participated in the incident along with A 1. It is seen that
the entire contents of letter were used by the trial Judge which
was rightly accepted by the High Court. The other circumstance
urged by the prosecution was that A3 absconded soon after
the incident and avoided arrest and this abscondence being a
conduct under Section 8 of the Indian Evidence Act, 1872
E should be taken into consideration along with other evidence
to prove his guilt. The fact remains that he was not available
for quite sometime till he was arrested which fact has not been
disputed by the defence counsel. We are satisfied that before
accepting the contents of the two letters and the evidence of
F PW 23, the trial Judge afforded him required opportunity and
followed the procedure which was rightly accepted by the High
Court.
Additional factors - Dara Singh (A1)
G
42. In addition to what we have highlighted and elicited from
the materials placed, it is relevant to point out that all the eye- •
witnesses examined by the prosecution consistently stated that '
during occurrence the miscreants raised slogans in the name
H of Dara Singh as "Dara Singh Zindabad". The story of this
RABINDRA KUMAR PAL @ DARA SINGH v. 993
-- REPUBLIC OF INDIA [P. SATHASIVAM, J.]
slogan was also mentioned. in the first information report lodged A
soon after the occurrence.' This slogan is in the name of Dara
Singh, corroborates the identification before the trial Court for .
the first time. In addition to the same, some of the witnesses
identified Dara Singh by photo identification. We have already
highlighted the evidentiary value of photo identification and B
identifying the person in the dock. In other words, we have
pointed out that those materials coupled with the other
corroborative evidence are permissible. In addition to the
same, all the witnesses mentioned about the blowing of whistle
by Dara Singh. c
43. Though the trial Court awarded death sentence for
Dara Singh, the High Court after considering entire materials
and finding that it is not a rarest ofrare case, commuted the .
death sentence into life imprisonment. The principles with .·
regard to awarding punishment of death have been well settled D
by judgments of this Gou.rt in Bachan Singh vs. State of
Punjab AIR 1980 SC 898, Machhi Singh' vs. State of Punjab
(1983) 3 SCC 470, Kehar Singh vs. State (Delhi
Administration) (1988) 3 SCC 609. It is clear from the above
decisions that on conviction under Section 302 IPC, the normal E ·
rule is to award punishment of life imprisonment and the
punishment of death should be resorted to only for the rarest
of rare cases. Whether a case falls within the rarest of rare
case or not, has to be examined with reference to the facts and
circumstances of each case and the Court has to take note of F
the aggravating as well as mitigating circumstances and
conclude whether there was something uncommon about the
crime which renders the sentence of imprisonment for life
inadequate and calls for death sentence. However, more than
12 years has elapsed since the act was committed, we are of G
the opinion that the life sentence awarded by the High Court
need not be enhanced in view of the factual position discussed
in the earlier paras.
144.Though an argument was advanced that only after the
H
I
994 SUPREME COURT REPORTS [2011) 1 S.C.R.
A intervention of PW 55, 1.0. from CBI, several persons made a
confessional statement by applying strong arm tactics that were
used by the investigating agency, the entire case of the
prosecution has to be rejected, we are unable to accept the
same for the reasons stated by the trial Court and the High
B Court. We have ourselves in the earlier paras adverted to the
fact that some of the witnesses did not mention anything about
the incident to the local police or the District Magistrate or the
higher level police officers who were camping from the next day
of the incident. However, regarding the fresh steps taken by
c the Officer of the CBI, particularly, the efforts made by PW 55,
though certain deficiencies are there in the investigation, the
same cannot be under estimated. Likewise, it was pointed out
that young children were being coerced into being witness to
the occurrence whereas the elder family members were never
0 joined as witness by the prosecuting agency. It is true that the
prosecution could have examined elders and avoided persons
like PW 5 who was a minor on the date of the incident. We
have already discussed about the veracity of witnesses and
found that certain aspects have been established and accepted
E by the trial Court as well as the High Court. ·
45. Finally, insofar as the appeals filed by the CBI against
the order of acquittal by the High Court in respect of certain
persons, it was pointed out that when two views are possible,
the one in.favour of the accused should be accepted. _____, It is true
F that the presumption of innocence is a fundamental principle
of criminal jurisprudence. Further, presumption of innocence
is further reinforced, reaffirmed and strengthened by the
judgment in his favour. [Vide State of Uttar Pradesh vs. Nandu
Vishwakarma & Ors., (2009) 14 SCC 501 (Para 23), Sambhaji
G Hindurao Deshmukh & Ors. Vs. State of Maharashtra, (2008)
11 SCC 186 (Para 13), Rahgunath vs. State of Haryana,
(2003) 1 SCC 398 (Para 33) and Al/arakha K. Mansuri vs.
State of Gujarat, (2002) 3 SCC 57 (Paras 6 & 7)). In the earlier
paragraphs, we have highlighted the weakness and infirmities
H of the prosecution case insofar as acquitted accused who are
.... RABINDRA KUMAR PAL @ DARA SINGH v.
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
995
all poor tribals. In the absence of definite assertion from the A
-> prosecution side, about their specific role and involvement, as
rightly observed by the High Court, it is not safe to convict them.
We entirely agree with the reasoning and conclusion of the High
Court insofar as the order relating to acquittal of certain accused
persons. B
Conclusion
46. In a country like ours where discrimination on the
ground of caste or religion is a taboo, taking lives of persons
belonging to another caste or religion is bound to have a C
dangerous and reactive effect on the society at large. It strikes
at the very root of the orderly society which the founding fathers
of our Constitution dreamt of. Our concept of secularism is that
the State will have no religion. The State shall treat all religions
and religious groups equally and with equal respect without in D
any manner interfering with their individual right of religion, faith
and worship.
47. The then President of India, Shri K R. Narayanan once
said in his address that "Indian unity was based on a tradition E
of tolerance, which is at once a pragmatic concept for living
together and a philosophical concept of finding truth and
goodness in every religion". We also conclude with the hope
that M~hatma Gandhi's vision of religion playing a positive role
in bringing India's numerousreligion and communities into an
F
integrated prosperous nation be realised by way of equal
respect for all religions. There is no justification for interfering
in someone's religious belief by any means.
48. The analysis of entire materials clearly shows that the
High ·court is right in arriving at its conclusion. In the case on G
hand, there is no material to prove conspiracy charge against
any of the accused. However, as pointed out by the High Court
which we also adverted to in the earlier paras even in the midst
of uncertail)ties, the witnesses have specified the role of (A1)
and (A3) which we agree with and confirm the same and we H
996 SUPREME COURT REPORTS [2011) 1 S.C.R.
A also maintain the convictjon of the appellant Dara Singh (A 1),
-
Mahendra Hembram (A3) and the sentence of life imprisonment
imposed on them. In the same way, in the absence of
acceptable materials and in view of the various infirmities in
the prosecution case as pointed out by the High Court, we
B confirm the order of acquittal of others who are all poor tribals.
49. In the result, Criminal Appeal No. 1366 of 2005 filed
by Rabindra Kumar Pal @ Dara Singh, Criminal Appeal No.
1259 of 2007 filed by Mahendra Hembram and Criminal
C Appear Nos. 1357-1365 filed by CBI are dismissed.
N.J. Appeals dimissed .
•
Ed. Note: The last part of paragraph 43 (on page 993) and of paragraph 47 (on
page 995) of the abovesaid Judgement dated 21.01.2011 replaced in terms
of the· subsequent Order dated 25.01.2011 in. the same matter.
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