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Mitigating circumstances – for commuting death to life – Residual Doubts like non conducting identification parade , absence of specific question under sec. 313 Cr.P.C.about the overt act of accused – Acquittal of majority accused – Less accused than reported facing prosecution – absconding of co accused – all are mitigating circumstances to show that this accused alone is not cause for the death of more than 15 members – So the death was commuted to Life Imprisonment for 20 years =Ashok Debbarma @ Achak Debbarma .. Appellant Versus State of Tripura .. Respondent = 2014 (March . Part) judis.nic.in/supremecourt/filename=41283

 

Mitigating circumstances – for commuting death to life – Residual Doubts like non conducting identification parade , absence of specific question under sec. 313 Cr.P.C.about the overt act of accused – Acquittal of majority accused – Less accused than reported facing prosecution – absconding of  co accused – all are mitigating circumstances to show that this accused alone is not cause for the death of more than 15 members – So the death was commuted to Life Imprisonment for 20 years =

 

Identification in Court is a best piece of evidence

 

In Malkhansingh v. State of M.P.  (2003)  5  SCC  746,  this

Court clarified that the Test Identification Parade  is  not  a  substantive

piece of evidence and to hold the Test Identification  Parade  is  not  even

the rule of law, but a rule of prudence so that the  identification  of  the

accused inside the Court room at the trial, can be safely relied  upon.   We

are of the view that if the witnesses  are  trustworthy  and  reliable,  the

mere fact that no Test Identification Parade was  conducted,  itself,  would

not be a reason for discarding  the  evidence  of  those  witnesses. 

 

This

Court in Dana Yadav alias Dahu (supra) has examined the points  on  the  law

at great length and held that the evidence of identification of  an  accused

in Court by a witness is substantive  evidence,  whereas  identification  in

Test  Identification  Parade  is,  though  a  primary  evidence,   but   not

substantive  one  and  the  same  can  be  used  only  to  corroborate   the

identification of the accused by witness  in  the  Court.   So  far  as  the

present case is concerned, PW10 and PW13  have  identified  the  accused  in

open  Court  which  is  the  substantive  piece   of   evidence   and   such

identification by the eye-witnesses has not  been  shaken  or  contradicted.

 

Mere absence of the name of the accused in sec.161 is not fatal –

In our view, if the evidence tendered  by  the  witness  in

the witness box is  creditworthy  and  reliable,  that  evidence  cannot  be

rejected merely because a particular statement made by  the  witness  before

the Court does not find a place in the statement recorded under Section  161

CrPC.  Police officer recorded statements of witnesses in an incident  where

15 persons lost their lives, 23 houses were set ablaze and large  number  of

persons were injured.    PW10 lost  his  real  brother  and  PW13  lost  his

daughter as well as his wife and in such a time of grief, they would not  be

in a normal state of mind to recollect  who  were  all  the  miscreants  and

their names. The witnesses may be knowing the persons  by  face,  not  their

names.  Therefore, the mere  fact  that  they  had  not  named  the  accused

persons in Section 161 statement, at that time, that would not be  a  reason

for discarding the oral evidence if their evidence is found to  be  reliable

and creditworthy.

Admission while answering a question under sec.313 Cr.P.C. can be considered eventhough taken not on oath

 

This Court in State of Maharashtra v. Sukhdev Singh  and  another  (1992)  3

SCC 700 held that  since  no  oath  is  administered  to  the  accused,  the

statement made by the accused under Section 313 CrPC will  not  be  evidence

stricto sensu and the accused, of course, shall not  render  himself  liable

to punishment merely on the basis  of  answers  given  while  he  was  being

examined under Section 313  CrPC.    But,  Sub-section  (4)  says  that  the

answers given by the accused in response to his  examination  under  Section

313 CrPC can be taken into  consideration  in  such  an  inquiry  or  trial.

This Court in Hate Singh Bhagat Singh (supra) held that  the  answers  given

by the accused under Section 313 examination can be  used  for  proving  his

guilt as much as the evidence given by the prosecution  witness.  In  Narain

Singh v. State of Punjab (1963) 3 SCR 678, this Court  held  that  when  the

accused confesses to  the  commission  of  the  offence  with  which  he  is

charged, the Court may rely upon the confession and proceed to convict  him.

whether this is one of the rarest of rare  case,

as held by the trial Court and affirmed by the High Court, so  as  to  award

death sentence to the accused.

Residual doubt and not reasonable doubt

In our criminal justice system, for recording guilt of the accused,  it

is not necessary that the prosecution should prove the  case  with  absolute

or mathematical certainty,  but  only  beyond  reasonable  doubt.   Criminal

Courts, while examining whether any doubt is beyond  reasonable  doubt,  may

carry in their mind, some “residual  doubt”,  even  though  the  Courts  are

convinced of the  accused  persons’  guilt  beyond  reasonable  doubt.   For

instance, in the instant case, it was pointed out  that,  according  to  the

prosecution, 30-35 persons armed with weapons such as fire arms, dao,  lathi

etc., set fire to  the  houses  of  the  villagers  and  opened  fire  which

resulted in the death of 15  persons,  but  only  11  persons  were  charge-

sheeted and, out of which,  charges  were  framed  only  against  5  accused

persons.  Even out of  those  5  persons,  3  were  acquitted,  leaving  the

appellant and another, who is absconding.   Court,  in  such  circumstances,

could have entertained a “residual doubt” as to whether the appellant  alone

had committed the entire crime, which is a  mitigating  circumstance  to  be

taken note of by the court, at least  when  the  court  is  considering  the

question whether the case falls under the rarest of rare category.

COUNSEL’S INEFFECTIVENESS:

32.   Can the counsel’s ineffectiveness in conducting a criminal trial  for

the defence, if established, be a  mitigating  circumstance  favouring  the

accused, especially to escape from the award of  death  sentence. 

Conclusion

We have  already  explained  few  circumstances  which  favoured  the

accused in the instant case, to hold it as not a rarest of rare case, which

are that the appellant alone could not have executed such  a  crime,  which

resulted in the death of 15 persons and leaving so many injured and setting

ablaze 23 houses, that is the entire elements of the crime could  not  have

been committed by the appellant alone.  Further, the appellant is a tribal,

stated to be a member  of  the  extremist  group  raging  war  against  the

minority settlers,  apprehending  perhaps  they  might  snatch  away  their

livelihood and encroach upon their properties,  possibly  such  frustration

and neglect might have led them to  take  arms,  thinking  they  are  being

marginalized and ignored by the society.     Viewed in that perspective, we

are of the view that this is not a rarest of rare case for  awarding  death

sentence.  All the same, considering the  gravity  of  the  crime  and  the

factors like extreme social indignation, crimes against innocent villagers,

who are a linguistic minority, which included women and children,  we  feel

it would be in the interest of justice to apply the principles laid down in

Swamy Shradananada (2) v. State of Karnataka (2008) 13 SCC 767.

 

42.    Consequently,  while  altering  the  death  sentence  to   that   of

imprisonment for life, we are inclined to fix the term of  imprisonment  as

20 years without remission, over and above the period of  sentence  already

undergone, which, in our view, would meet the  ends  of  justice.   Ordered

accordingly.

 

43.   The Appeals are, accordingly, disposed of.

 

2014 (March . Part) judis.nic.in/supremecourt/filename=41283

K.S. RADHAKRISHNAN, VIKRAMAJIT SEN

 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.47-48 OF 2013

Ashok Debbarma @ Achak Debbarma .. Appellant

Versus

State of Tripura .. Respondent
J U D G M E N T

K. S. RADHAKRISHNAN, J.
1. We are, in this case, concerned with a tragic incident in which a
group of Armed Extremists at Jarulbachai village in the night of 11.2.1997,
set fire to twenty houses belonging to a group of linguistic minority
community of Bengal settlers, in which 15 persons lost their lives, which
included women and children and causing extensive damage to their
properties.

2. The Takarajala Police Station, West Tripura got information about the
incident at about 11.00 p.m. on 11.2.1997 from Jarullabachai DAR Camp
stating that extremists had set on fire a number of houses at Jarulbachai
village and that the people had been shot dead and injured grievously.
Information so received was entered into the General Diary at the
Takarajala Police Station in the form of Entry No.292 dated 11.2.1997.
PW18 (Officer-in-Charge) of Takarajala Police Station visited the
Jarullabachai DAR Camp, cordoned off the area, and conducted search. Most
of the houses of the village were found gutted by fire. On the very night
of the occurrence, as many as 13 dead bodies were found lying at various
places and three persons were found lying injured. A formal written
information, as regards the occurrence, was received by the investigating
officer from one Gauranga Biswas (PW2) from the place of occurrence. Based
on the written information, which was so received at the place of
occurrence, Takarajala Police Station Case No.12/97 under Sections
148/149/302/326/307/436 IPC read with Section 27(3) of the Arms Act, 1959
was registered. Later, more number of dead bodies were found and number of
dead persons increased to 15, so also the number of injured persons. Dead
bodies as well as injured persons were taken to GB Hospital at about 4.00
p.m. on 12.2.1997. Inquests were held on the dead bodies and post-mortem
examinations were also conducted. PW.18, the Investigating Officer, seized
vide seizure list (Ex.11), two empty cartridges and some ashes from the
place of occurrence. Looking at the serious nature of the evidence,
investigation was handed over to the Criminal Investigation Department
(CID) and PW20 (a DSP) was entrusted with the investigation.

3. PW20, on completion of the investigation, filed a charge-sheet under
Sections 148/149/302/326/307/436 IPC read with Section 34 IPC and 27(3) of
the Arms Act, 1959 read with Section 34 IPC against 11 persons, including
(1) Rabi Deb Barma, (2) Gandhi Deb Barma, (3) Mantu Deb Barma, (4)
Sambhuram Deb Barma, (5) Budhraj Deb Barma. Charge-sheet was also filed
against some other accused, who were found absconding, namely, (1) Subha
Deb Barma, (2) Sandhya Deb Barma, (3) Samprai Deb Barma, (4) Falgoon Deb
Barma, (5) Bijoy Deb Barma, (6) Budh Deb Barma, (7) Mangal Deb Barma, (8)
Sankar Deb Barma, (9), Kaphur Deb Barma, (10) Sandhyaram Deb Barma alias
Phang and (11) Ashok Deb Barma (i.e. the Appellant herein). Out of the 11
persons named in the charge-sheet, chargers were framed against five
persons under Sections 326, 436 and 302 read with Section 34 IPC and also
Section 27(3) of the Arms Act, 1959 read with Section 34 IPC, which
included the Appellant herein. All the above-mentioned persons pleaded not
guilty and claimed to be tried.
4. The prosecution, in order to establish its case, examined 20
witnesses. Two accused persons, namely, Gandhi Deb Barma and Ashok Deb
Barma alias Ashok Achak (i.e. the Appellant herein) were examined under
Section 313 CrPC and, in their examinations, they denied to have committed
the alleged offences. Due to want of evidence, the trial Court acquitted
three persons vide its order dated 23.4.2005 under Section 232 CrPC and
only two accused persons, namely, Gandhi Deb Barma and the Appellant herein
were called upon in terms of Section 232 CrPC to enter on their defence
and, accordingly, the defence adduced evidence by examining two witnesses.
5. The Additional Sessions Judge, West Tripura, Agartala, having found
the Appellant and Gandhi Deb Barma guilty of the offences under Sections
326, 436 and 302 read with Section 34 IPC and also Section 27(3) of the
Arms Act, 1959 read with Section 34 IPC, declared both the accused guilty
of the offences aforementioned and convicted them accordingly vide judgment
dated 7.11.2005, on which date Gandhi Deb Barma was absent since he was
absconding. Judgment was, therefore, pronounced by the Sessions Judge in
the absence of the co-accused in terms of Section 353(6) CrPC. The
Additional Sessions Judge then on 10.11.2005, after hearing the prosecution
as well as the accused on the question of sentence, passed an order
sentencing the Appellant to death on his conviction under Sections
148/149/302/326/307/436 IPC read with Section 27(3) of the Arms Act, 1959.
6. The Additional Sessions Judge in terms of provisions contained in
Section 366 (1) CrPC referred the matter to the High Court for confirmation
of death sentence awarded to the Appellant, which was numbered as Criminal
Reference No.02/2005. The Appellant also preferred Criminal Appeal (J)
94/2005. Both the Appeals as well as the Reference were heard by the High
Court. The High Court vide its judgment and order dated 5.9.2012 set
aside the conviction of the Appellant under Section 27(3) of the Arms Act,
1959. However, the death sentence under Section 302 IPC read with Section
34 IPC, in addition to the sentence passed for offence under Sections 326
and 436 read with Section 34 IPC, was sustained, against which these
Appeals have been preferred.
7. Shri T.R. Venkita Subramoniam, learned counsel appearing for the
Appellant, submitted that the prosecution has miserably failed to establish
beyond reasonable doubt the involvement of the Appellant in the incident in
question. Learned counsel pointed out that even though 20 witnesses were
examined, only two witnesses viz. PW10 and PW13 in their deposition in the
Court had mentioned the name of the Appellant, which is nothing but an
improvement of the prosecution case, especially when the Appellant was not
named in the FIR. Learned counsel also pointed out that PW10 and PW13 had
not mentioned the name of the Appellant in their statements made to the
Police under Section 161 CrPC. Learned counsel placed reliance on the
judgment of this Court in Tahsildar Singh and another v. State of U.P. AIR
1959 SC 1012 and Shashidhar Purandhar Hegde and another v. State of
Karnataka (2004) 12 SCC 492 and submitted that the omission to mention the
name of the Appellant in the FIR as well as in the Section 161 statement
was a significant omission which may amount to contradiction and the
evidence of those witnesses should not have been relied upon for recording
conviction.

8. Learned counsel also pointed out that the prosecution completely
erred in not conducting the Test Identification Parade. Consequently, no
reliance could have been placed on the statement of witnesses stating that
they had seen the Appellant participating in the incident. Placing
reliance on the judgment of this Court in Dana Yadav alias Dahu and others
v. State of Bihar (2002) 7 SCC 295, learned counsel pointed out that
ordinarily if the accused is not named in the FIR, his identification by
the witnesses in Court should not be relied upon. Learned counsel also
submitted that the High Court has committed an error in taking note of the
fact that the Appellant was absconding immediately after the incident.
Such a presumption should not have been drawn by the Court, especially when
the question regarding abscondance was not put on the Appellant in the
statement recorded while examining him under Section 313 CrPC. Learned
counsel placed reliance on the judgment of this Court in Shamu Balu
Chaugule v. State of Maharashtra (1976) 1 SCC 438, S. Harnam Singh v.
State (Delhi Admn.) (1976) 2 SCC 819, Ranvir Yadav v. State of Bihar (2009)
6 SCC 595 and Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC
468. Learned counsel submitted that, in any view, this is not a case which
falls in the category of rarest of rare case warranting capital punishment.
9. Learned counsel submitted that the appellant is a tribal coming from
lower strata of the society, totally alienated from the main stream of the
society and such extremist’s upsurge might have occurred due to neglect and
frustration. Further, it was pointed out that, seldom, people like the
appellant get effective legal assistance and while applying the RR test,
the question whether the appellant had got proper legal assistance, should
also be examined. Learned counsel, after referring to few judgments of the
U.S. Supreme Court, submitted that the Court, while considering the
question of death sentence, should also examine whether there is any
“residual doubt” over the guilt of the accused.

10. Shri Gopal Singh, learned counsel for the State, highlighted the
manner in which the entire operation was executed by a mob consisting of 30
to 35 persons. Learned counsel submitted that they mercilessly fired at
women and children and others with latest arms and ammunitions by killing
as many as 15 persons, leaving large number of persons injured. Learned
counsel pointed out that they set ablaze various huts in which poor and
illiterate persons were living. Many of the persons who participated in
the incident were known to the locals and the prosecution has examined as
many as 20 witnesses, of which the evidence tendered by PW10 and PW13 was
very crucial so far as the involvement of the Appellant is concerned.
Learned counsel pointed out that the Courts have rightly believed the
evidence of the above-mentioned witnesses and the mere fact that the
Appellant’s name did not figure in the initial complaint or in the
statement under Section 161 CrPC would not absolve him from the guilt,
since the involvement of the appellant has been proved beyond reasonable
doubt. Learned counsel also submitted that there is no necessity of
conducting the Test Identification Parade since the accused persons were
known to the witnesses. Learned counsel also submitted that all relevant
incriminating questions were put by the Court to the accused while he was
examined under Section 313 CrPC and the answers given by the accused would
be sufficient to hold him guilty of the charges levelled against him.
Learned counsel also submitted that both the trial Court as well as the
High Court have correctly appreciated the oral and documentary evidence
adduced and the Court rightly awarded death sentence, which falls under the
category of rarest of rare case.

11. We may indicate that though the trial Court as well as the High Court
have found that both Gandhi Deb Barma and the Appellant were guilty of the
various offences levied against them, we are in this case concerned with
the Appeal filed by Ashok Deb Barma, who has also been awarded death
sentence by the trial Court, which was confirmed by the High Court. At the
outset, we may point out that the High Court is right in holding that the
Appellant is not guilty under Section 27(3) of the Arms Act, 1959, in view
of the law declared by this Court in State of Punjab v. Dalbir Singh (2012)
3 SCC 346, wherein this Court held that Section 27(3) of the Arms Act is
unconstitutional. The fact that such dastardly acts referred to earlier
were committed in the Jarulbachai village in the night of 11.2.1997, is not
disputed. The question that we are called upon to decide is with regard
to the complicity of the accused/Appellant, who was found guilty by the
trial Court as well as by the High Court. The facts would clearly
indicate that, in this case, 15 persons were brutally and mercilessly
killed and the houses of villagers with all household belongings and
livestock were buried to ashes. PW1, an injured person, had given a
detailed picture of what had happened on the fateful day and he was not
cross-examined by the defence. The evidence of PW1 was also fully
corroborated by PW2. PW18, the officer-in-charge of Takarajala Police
Station, West Tripura, as already indicated, had visited the site since he
got information at the Jarullabachai DAR Camp. At about 4.00 a.m. the next
day, he had received the complaint from PW2, by the time, he had already
started investigation after getting information from Jarullabachai DAR Camp
and on his personal visit to the site. In other words, the police
machinery had already been set in motion on the basis of the information
PW18 had already got and, it was during the course of investigation, he had
received the complaint from PW2. Though the complaint received from PW2
was treated as the First Information Report, the fact remains that even
before that PW18 had started investigation. Consequently, written
information (Ex.1) received from PW2, at best, could be a statement of PW2
made in writing to the police during the course of investigation. Of
course, it can be treated as a statement of PW2 recorded under Section 161
Cr.P.C and the contents thereof could be used not as the First Information
Report, but for the purpose of contradicting PW2.

12. PW20, the DSP (CID), as already indicated, was later entrusted with
the investigation because of the seriousness of the crime. PW20 visited
the place of occurrence and noticed that the entire hutments were gutted by
fire, 35 families were affected by fire, 15 persons had been killed and
four seriously injured. PW20, during investigation, received 15 post-
mortem reports from Dr. Pijush Kanti Das of IGM Hospital (PW9), who
conducted the post-mortem on the dead bodies. PW20 had also forwarded on
29.4.2011 one fire cartridge case to ballistic expert for his opinion and,
on 19.5.1997, he received the expert opinion of the same date to the effect
that it was around 7.62 mm ammunition. PW20 has also deposed that the
fire arm was AK47 rifle. PW20 has also asserted that the Appellant was a
person who was known to the locality and he remained as an absconder from
the day of the occurrence. The evidence of PW20 as well as the evidence
tendered by PW9 would clearly indicate that the cartridge seized from the
site was found to be of 7.62 mm ammunition and the bullets were fired from
an automatic fire arm like SLR and, in the instant case, the fire arm used
was nothing but an AK 47 rifle.

13. Evidence of PWs6, 7 and 8, Medical Officers posted in G.B. Hospital
at Agartala, would indicate that many of the persons, who had sustained
gunshot injuries, were treated in the hospital by them and they had
submitted their reports which were also marked in evidence. The fact that
the fire arms were used in commission of the crime was fully corroborated
by the evidence of PW20 read with evidence of PWs 6 to 9.

14. We may now refer to the crucial evidence of some of the witnesses who
had stated the involvement of the Appellant in the instant case. PW10 has
clearly stated in his deposition that the accused as well as Gandhi Deb
Barma (since absconding) were firing with fire arms, due to which, his
brother died on the spot with bullet injuries. PW10 has further deposed
that there were around 30-35 members in the group, who had, either set fire
to the huts or opened fire from their fire arms. PW10, in his cross-
examination, deposed that he had stated before the police that he had seen
Gandhi Deb Barma as well as the Appellant opening the fires, which
statement was not effectively cross-examined. PW10’s version that he had
seen the Appellant firing from his fire arm remained wholly unshaken. PW10
asserted in his cross-examination that he had stated before the police that
his brother died due to bullets fired by the Appellant. PW11 has also
deposed that the extremists had killed 15 persons, injured large number of
persons and 23 houses were gutted in fire. PW11, of course, did not name
the appellant as such, but has fully corroborated the evidence tendered by
PW10. PW11’s evidence reinforces the evidence of PW10 that the Appellant is
one of those persons who had attacked the villagers and set fire to the
houses and injured or killed large number of men, women and children.
PW14, a resident of the locality, has also corroborated the evidence of
PW11.

15. PW13 is one of the persons who got injured in the incident, lost both
his son and wife in the firing occurred on the fateful day. PW13, it is
reported, was examined by the police on the night of the incident but, of
course, he did name the appellant then, consequently, the appellant’s name
did not figure in the FIR. PW13, in his evidence, deposed that his wife,
Saraswati, aged around 30 years and his daughter, Tulshi aged about 5
years, had died in the incident. PW13 deposed that the miscreants had set
fire to his house and when he wanted to come out of his house, 10-12
miscreants with fire arms fired at him and he sustained injuries. PW13
identified the accused in the Court.
16. We have gone through the oral evidence of PW10 and PW13 and, in our
view, the trial Court and the High Court have rightly appreciated their
evidence and the involvement of the Appellant in the above incident,
including the fact that he had fired at various people, which led to the
killing of relatives of PW10 and PW13. We are of the view that since the
accused persons were known to the witnesses and they were identified by
face, the fact that no Test Identification Parade was conducted at the time
of investigation, is of no consequence. The primary object of the Test
Identification Parade is to enable the witnesses to identify the persons
involved in the commission of offence(s) if the offenders are not
personally known to the witnesses. The whole object behind the Test
Identification Parade is really to find whether or not the suspect is the
real offender. In Kanta Prashad v. Delhi Administration AIR 1958 SC 350,
this Court stated that the failure to hold the Test Identification Parade
does not make the evidence of identification at the trial inadmissible.
However, the weight to be attached to such identification would be for the
Court to decide and it is prudent to hold the Test Identification Parade
with respect to witnesses, who did not know the accused before the
occurrence. Reference may also be made to the judgment of this Court in
Harbhajan Singh v. State of Jammu & Kashmir (1975) 4 SCC 480, Jadunath
Singh and another v. State of UP (1970) 3 SCC 518 and George & others v.
State of Kerala and another (1998) 4 SCC 605.

17. Above-mentioned decisions would indicate that while the evidence of
identification of an accused at a trial is admissible as substantive piece
of evidence, would depend on the facts of a given case as to whether or not
such a piece of evidence can be relied upon as the sole basis of conviction
of an accused. In Malkhansingh v. State of M.P. (2003) 5 SCC 746, this
Court clarified that the Test Identification Parade is not a substantive
piece of evidence and to hold the Test Identification Parade is not even
the rule of law, but a rule of prudence so that the identification of the
accused inside the Court room at the trial, can be safely relied upon. We
are of the view that if the witnesses are trustworthy and reliable, the
mere fact that no Test Identification Parade was conducted, itself, would
not be a reason for discarding the evidence of those witnesses. This
Court in Dana Yadav alias Dahu (supra) has examined the points on the law
at great length and held that the evidence of identification of an accused
in Court by a witness is substantive evidence, whereas identification in
Test Identification Parade is, though a primary evidence, but not
substantive one and the same can be used only to corroborate the
identification of the accused by witness in the Court. So far as the
present case is concerned, PW10 and PW13 have identified the accused in
open Court which is the substantive piece of evidence and such
identification by the eye-witnesses has not been shaken or contradicted.
The trial Court examined in detail the oral evidence tendered by those
witnesses, which was accepted by the High Court and we find no error in the
appreciation of the evidence tendered by those witnesses.

18. The mere fact that the Appellant was not named in the statement made
before the police under Section 161 CrPC and, due to this omission, the
evidence of PW10 and PW13 tendered in the Court is unreliable, cannot be
sustained. Statements made to the police during investigation were not
substantive piece of evidence and the statements recorded under Section 161
CrPC can be used only for the purpose of contradiction and not for
corroboration. In our view, if the evidence tendered by the witness in
the witness box is creditworthy and reliable, that evidence cannot be
rejected merely because a particular statement made by the witness before
the Court does not find a place in the statement recorded under Section 161
CrPC. Police officer recorded statements of witnesses in an incident where
15 persons lost their lives, 23 houses were set ablaze and large number of
persons were injured. PW10 lost his real brother and PW13 lost his
daughter as well as his wife and in such a time of grief, they would not be
in a normal state of mind to recollect who were all the miscreants and
their names. The witnesses may be knowing the persons by face, not their
names. Therefore, the mere fact that they had not named the accused
persons in Section 161 statement, at that time, that would not be a reason
for discarding the oral evidence if their evidence is found to be reliable
and creditworthy.

19. Learned counsel appearing for the accused has raised the question
that incriminating questions were not put to the accused while he was
examined under Section 313 CrPC. The object of Section 313 CrPC is to
empower the Court to examine the accused after evidence of the prosecution
has been taken so that the accused is given an opportunity to explain the
circumstances which may tend to incriminate him. The object of
questioning an accused person by the Court is to give him an opportunity of
explaining the circumstances that appear against him in the evidence. In
the instant case, the accused was examined in the Court on 23.4.2005 by the
Additional Sessions Judge, West Tripura, Agartala, which, inter alia, reads
as follows :-
Question : It transpires from the evidence of PW No.10, 11 and 13 that
they had recognized you amongst the extremists. Is it
true?
Answer : False.
Question : It transpires from the evidence of the above witnesses
that Dulal, Ajit, Saraswati and Hemender sustained severe
bullet injuries by the firing of you and your associates?

What do you get to say regarding this?
Answer : Yes
Question : It is evident from the evidence of these witnesses and
other information that at that night Sachindra Sarkar,
Archana Garkar, Dipak Sarkar, Gautam Sarkar, Shashi
Sarkar, Prosenjit Sarkar, Saraswati Biswas, Tulsi Biswas,
Narayan Das, Mithu Das, Bitu Das, Khelan Sarkar, Sujit
Sarkar, Bipul Sarkar and Chotan Sarkar were killed by the
bullets of fire arms and fire.

What do you get to say regarding this?
Answer : ………………. (Blank).
20. The second question put to the accused was that, from the deposition
of PW10, PW11, PW13, it had come out in evidence that it was due to the
firing of the accused and his associates, Dulal, Ajit, Saraswati and
Hemender had sustained severe bullet injuries, to which the answer given by
the accused was “Yes”. In other words, he has admitted the fact that, in
the incident, Dulal, Ajit, Saraswati and Hemender had sustained severe
bullet injuries by the firing of the accused and his associates. Further,
for the question, that from the evidence of those witnesses and other
information, at that night, Sachindra Sarkar, Archana Garkar, Dipak Sarkar,
Gautam Sarkar, etc. were killed by the bullets of fire arms and fire, the
accused kept silent.

21. We are of the view that, under Section 313 statement, if the accused
admits that, from the evidence of various witnesses, four persons sustained
severe bullet injuries by the firing by the accused and his associates,
that admission of guilt in Section 313 statement cannot be brushed aside.
This Court in State of Maharashtra v. Sukhdev Singh and another (1992) 3
SCC 700 held that since no oath is administered to the accused, the
statement made by the accused under Section 313 CrPC will not be evidence
stricto sensu and the accused, of course, shall not render himself liable
to punishment merely on the basis of answers given while he was being
examined under Section 313 CrPC. But, Sub-section (4) says that the
answers given by the accused in response to his examination under Section
313 CrPC can be taken into consideration in such an inquiry or trial.
This Court in Hate Singh Bhagat Singh (supra) held that the answers given
by the accused under Section 313 examination can be used for proving his
guilt as much as the evidence given by the prosecution witness. In Narain
Singh v. State of Punjab (1963) 3 SCR 678, this Court held that when the
accused confesses to the commission of the offence with which he is
charged, the Court may rely upon the confession and proceed to convict him.
22. This Court in Mohan Singh v. Prem Singh and another (2002) 10 SCC 236
held that the statement made in defence by accused under Section 313 CrPC
can certainly be taken aid of to lend credence to the evidence led by the
prosecution, but only a part of such statement under Section 313 CrPC
cannot be made the sole basis of his conviction. In this connection,
reference may also be made to the judgment of this Court in Devender Kumar
Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and Bishnu Prasad Sinha and
another v. State of Assam (2007) 11 SCC 467. The above-mentioned
decisions would indicate that the statement of the accused under Section
313 CrPC for the admission of his guilt or confession as such cannot be
made the sole basis for finding the accused guilty, the reason being he is
not making the statement on oath, but all the same the confession or
admission of guilt can be taken as a piece of evidence since the same lends
credence to the evidence led by the prosecution.
23. We may, however, indicate that the answers given by the accused while
examining him under Section 313, fully corroborate the evidence of PW10 and
PW13 and hence the offences levelled against the Appellant stand proved and
the trial Court and the High Court have rightly found him guilty for the
offences under Sections 326, 436 and 302 read with Section 34 IPC.
24. We shall now consider whether this is one of the rarest of rare case,
as held by the trial Court and affirmed by the High Court, so as to award
death sentence to the accused.

25. In this case, altogether 11 persons were charge-sheeted for the
offences under Sections 326, 436 and 302 read with Section 34 IPC and also
Section 27(3) of the Arms Act, 1959 read with Section 34 IPC, but charges
were framed only against 5 persons under Sections 326, 436 and 302 read
with Section 34 IPC and also Section 27(3) of the Arms Act, 1959 read with
Section 34 IPC. For want of evidence, three accused persons Budhrai Deb
Barma, Mantu Deb Barma and Subhuram Deb Barma were acquitted on 23.4.2005
under Section 232 CrPC and only two accused persons, Appellant and Gandhi
Deb Barma were called upon in terms of Section 232 CrPC to enter on their
defence. Out of 11 accused, we are left with only two accused persons who
were found guilty, out of whom Gandhi Deb Barma is now absconding, hence,
we are concerned only with the Appellant. We will first examine whether
the appellant was solely responsible for all the elements of crime.

ELEMENTS OF CRIME

26. Appellant alone could not have organized and executed the entire
crime. Eleven persons were originally charge-sheeted out of 30-35 group of
persons who, according to the prosecution, armed with weapons like AK47,
Dao, Lathi, etc., had attacked the villagers, fired at them and set ablaze
their huts and belongings. The High Court while affirming the death
sentence, stated as follows:
“The perpetrators of the crime, including the present appellant, acted
in most cruel and inhuman manner and murders were committed in
extremely brutal, grotesque and dastardly manner, which is revolting
and ought to be taken to have vigorously shaken the collective
conscience of the society. The victims, all innocent, were helpless
when they were put to death or grievously injured or when their houses
and belongings were burnt to ashes. The case at hand, therefore,
squarely falls in the category of ‘rarest of rare cases’, where death
penalty could be the only adequate sentence.”
The High Court, therefore, while confirming the death sentence
recognized the accused as one of the “perpetrators of the crime”, not the
sole, and then stated that they all acted in most cruel and inhuman manner
and committed the offences. Offences were committed by other so-called
perpetrators of the crime as well, but they could not be apprehended or
charge-sheeted. Appellant alone or the accused absconding, though found
guilty, are not solely responsible for all the elements of the crime, but
other perpetrators of the crime also, who could not be apprehended. The
Courts below put the entire elements of crime on the accused and treated
those elements as aggravating circumstances so as to award death sentence,
which cannot be sustained.

REASONABLE DOUBT AND RESIDUAL DOUBT
27. An accused has a profound right not to be convicted of an offence
which is not established by the evidential standard of proof “beyond
reasonable doubt”. This Court in Krishnan and another v. State represented
by Inspector of Police (2003) 7 SCC 56, held that the doubts would be
called reasonable if they are free from a zest for abstract speculation.
Law cannot afford any favourite other than truth and to constitute
reasonable doubt, it must be free from an overemotional response. Doubts
must be actual and substantial doubts as to the guilt of the accused
persons arising from the evidence, or from the lack of it, as opposed to
mere vague apprehensions. A reasonable doubt is not an imaginary, trivial
or a merely possible doubt, but a fair doubt based upon reason and common
sense. It must grow out of the evidence in the case. In Ramakant Rai v.
Madan Rai and others (2002)12 SCC 395, the above principle has been
reiterated.

28. In Commonwealth v. John W. Webster 5 Cush. 295, 320 (1850),
Massachusetts Court, as early as in 1850, has explained the expression
“reasonable doubt” as follows:
“Reasonable doubt … is not a mere possible doubt; because everything
relating to human affairs, and depending on moral evidence, is open to
some possible or imaginary doubt. It is that state of the case which,
after the entire comparison and consideration of all the evidence,
leaves the minds of the jurors in that condition that they cannot say
they feel an abiding conviction.”
In our criminal justice system, for recording guilt of the accused, it
is not necessary that the prosecution should prove the case with absolute
or mathematical certainty, but only beyond reasonable doubt. Criminal
Courts, while examining whether any doubt is beyond reasonable doubt, may
carry in their mind, some “residual doubt”, even though the Courts are
convinced of the accused persons’ guilt beyond reasonable doubt. For
instance, in the instant case, it was pointed out that, according to the
prosecution, 30-35 persons armed with weapons such as fire arms, dao, lathi
etc., set fire to the houses of the villagers and opened fire which
resulted in the death of 15 persons, but only 11 persons were charge-
sheeted and, out of which, charges were framed only against 5 accused
persons. Even out of those 5 persons, 3 were acquitted, leaving the
appellant and another, who is absconding. Court, in such circumstances,
could have entertained a “residual doubt” as to whether the appellant alone
had committed the entire crime, which is a mitigating circumstance to be
taken note of by the court, at least when the court is considering the
question whether the case falls under the rarest of rare category.

29. ‘Residual doubt’ is a mitigating circumstance, sometimes, used and
urged before the Jury in the United States and, generally, not found favour
by the various Courts in the United States. In Donald Gene Franklin v.
James A. Lynaugh, Director, Texas Department of Corrections 487 US 164
(1988) : 101 L Ed 2d 155, while dealing with the death sentence, held as
follows:

“Petitioner also contends that the sentencing procedures followed in
his case prevented the jury from considering, in mitigation of
sentence, any “residual doubts” it might have had about his guilt.
Petitioner uses the phrase “residual doubts” to refer to doubts that
may have lingered in the minds of jurors who were convinced of his
guilt beyond a reasonable doubt, but who were not absolutely certain of
his guilt. Brief for Petitioner 14. The plurality and dissent reject
petitioner’s “residual doubt” claim because they conclude that the
special verdict questions did not prevent the jury from giving
mitigating effect to its “residual doubt[s]” about petitioner’s
guilt. See ante at 487 U. S. 175; post at 487 U. S. 189. This
conclusion is open to question, however. Although the jury was
permitted to consider evidence presented at the guilt phase in the
course of answering the special verdict questions, the jury was
specifically instructed to decide whether the evidence supported
affirmative answers to the special questions “beyond a
reasonable doubt.” App. 15 (emphasis added). Because of this
instruction, the jury might not have thought that, in sentencing
petitioner, it was free to demand proof of his guilt beyond all doubt.

30. In California v. Brown 479 U.S. 541 and other cases, the US Courts
took the view, “”Residual doubt” is not a fact about the defendant or the
circumstances of the crime, but a lingering uncertainty about facts, a
state of mind that exists somewhere between “beyond a reasonable doubt” and
“absolute certainty.” Petitioner’s “residual doubt” claim is that the
States must permit capital sentencing bodies to demand proof of guilt to
“an absolute certainty” before imposing the death sentence. Nothing in our
cases mandates the imposition of this heightened burden of proof at capital
sentencing.”

31. We also, in this country, as already indicated, expect the
prosecution to prove its case beyond reasonable doubt, but not with
“absolute certainty”. But, in between “reasonable doubt” and “absolute
certainty”, a decision maker’s mind may wander possibly, in a given case,
he may go for “absolute certainty” so as to award death sentence, short of
that he may go for “beyond reasonable doubt”. Suffice it to say, so far as
the present case is concerned, we entertained a lingering doubt as to
whether the appellant alone could have executed the crime single handedly,
especially when the prosecution itself says that it was the handiwork of a
large group of people. If that be so, in our view, the crime perpetrated
by a group of people in an extremely brutal, grotesque and dastardly
manner, could not have been thrown upon the appellant alone without charge-
sheeting other group of persons numbering around 35. All element test as
well as the residual doubt test, in a given case, may favour the accused,
as a mitigating factor.

COUNSEL’S INEFFECTIVENESS:
32. Can the counsel’s ineffectiveness in conducting a criminal trial for
the defence, if established, be a mitigating circumstance favouring the
accused, especially to escape from the award of death sentence. Counsel
for the appellant, without causing any aspersion to the defence counsel
appeared for the accused, but to only save the accused from the gallows,
pointed out that the records would indicate that the accused was not meted
out with effective legal assistance. Learned counsel submitted that the
defence counsel failed to cross examine PW1 and few other witnesses.
Further, it was pointed out that the counsel also should not have cross
examined PW17, since he was not put to chief-examination. Learned counsel
submitted that appellant, a tribal, coming from very poor circumstances,
could not have engaged a competent defence lawyer to conduct a case on his
behalf. Placing reliance on the judgment of the US Supreme Court in
Charles E. Strickland, Superintendent, Florida State Prison v. David Leroy
Washington 466 US 668 (1984), learned counsel pointed out that, under
Article 21 of our Constitution, it is a legal right of the accused to have
a fair trial, which the accused was deprived of.

33. Right to get proper and competent assistance is the facet of fair
trial. This Court in Madhav Hayawadanrao S. Hoskot v. State of Maharashtra
(1978) 3 SCC 544, State of Haryana v. Darshana Devi and Others (1979) 2 SCC
236, Hussainara Khatoon and others (IV) v. Home Secretary, State of Bihar,
Patna (1980) 1 SCC 98 and Ranjan Dwivedi v. Union of India (1983) 3 SCC
307, pointed out that if the accused is unable to engage a counsel, owing
to poverty or similar circumstances, trial would be vitiated unless the
State offers free legal aid for his defence to engage a counsel, to whose
engagement, the accused does not object. It is a constitutional guarantee
conferred on the accused persons under Article 22(1) of the Constitution.
Section 304 CrPC provides for legal assistance to the accused on State
expenditure. Apart from the statutory provisions contained in Article
22(1) and Section 304 CrPC, in Hussainara Khatoon case (supra), this Court
has held that this is a constitutional right of every accused person who
is unable to engage a lawyer and secure legal services on account of
reasons, such as poverty, indigence or incommunicado situation.

34. The question raised, in this case, is with regard to ineffective
legal assistance which, according to the counsel, caused prejudice to the
accused and, hence, the same may be treated as a mitigating circumstance
while awarding sentence. Few circumstances pointed out to show ineffective
legal assistance are as follows:
(1) Failure to cross-examine PW1, the injured first informant which,
according to the counsel, is a strong circumstance of “ineffective
legal assistance”.
(2) The omission to point out the decision of this Court in Dalbir Singh
(supra), wherein this Court held that Section 27(3) of the Arms Act
was unconstitutional, was a serious omission of “ineffective legal
advice”, at the trial stage, even though the High Court has found the
appellant not guilty under Section 27 of the Arms Act, 1959.
(3) Ventured to cross examine PW17, who was not put to chief-examination.

35. Right to get proper legal assistance plays a crucial role in
adversarial system, since access to counsel’s skill and knowledge is
necessary to accord the accused an ample opportunity to meet the case of
the prosecution. In Charles E. Strickland case (supra), the US Court held
that a convicted defendant alleging ineffective assistance of counsel must
show not only that counsel was not functioning as the counsel guaranteed by
the Sixth Amendment so as to provide reasonable effective assistance, but
also that counsel’s errors were so serious as to deprive the defendant of a
fair trial. Court held that the defiant convict should also show that
because of a reasonable probability, but for counsel’s unprofessional
errors, the results would have been different. The Court also held as
follows:
“Judicial scrutiny of counsel’s performance must be highly
deferential, and a fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the
time. A court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance. These standards require no special amplification in order
to define counsel’s duty to investigate, the duty at issue in this
case.”

36. The Court, in determining whether prejudice resulted from a criminal
defence counsel’s ineffectiveness, must consider the totality of the
evidence. When an accused challenges a death sentence on the ground of
prejudicially ineffective representation of the counsel, the question is
whether there is a reasonable probability that, absent the errors, the
Court independently reweighs the evidence, would have concluded that the
balance of aggravating and mitigating circumstances did not warrant the
death sentence.

37. When we apply the above test to the facts of this case, we are not
prepared to say that the accused was not given proper legal assistance by
the counsel appeared before the trial Court as well as before the High
Court. As already discussed in detail, there is clinching evidence in
this case of the involvement of the appellant. The evidence tendered by
the eye-witnesses is trustworthy and reliable. True, PW17 should not have
been subjected to cross-examination without being put to chief-examination.
Section 138 of the Evidence Act specifically states that witness shall be
first examined-in-chief, then (if the adverse party so desires) cross-
examined, then (if the party calling him so desires) re-examined.
Consequently, there is no scope under Section 138 of the Evidence Act to
start with cross-examination of a witness, who has not been examined-in-
chief, an error committed by the trial Court. In Sukhwant Singh v. State
of Punjab (1995) 3 SCC 367, this Court held that after amendment of CrPC,
tendering of witness for cross examination is not permissible. Under the
old Code, such tendering of witnesses was permissible, while the committing
Magistrate used to record the statement of witnesses, which could be
treated at the discretion of the trial Judge as substantial evidence of the
trial. In that case, this Court further held as follows:
“Section 138 Evidence Act, envisages that a witness would first be
examined-in-chief and then subjected to cross examination and for
seeking any clarification, the witness may be re-examined by the
prosecution. There is no meaning in tendering a witness for cross
examination only. Tendering of a witness for cross examination, as a
matter of fact, amounts to giving up of the witness by the prosecution
as it does not choose to examine him in chief.”
Later, in Tej Prakash v. State of Haryana (1996) 7 SCC 322, this Court,
following its earlier judgment in Sukhwant Singh (supra), held as follows:
“18. As far as Dr O.P. Poddar is concerned, he was only tendered for
cross-examination without his being examined-in-chief. Though, Dr O.P.
Poddar was not examined-in-chief, this procedure of tendering a
witness for cross-examination is not warranted by law. This Court in
Sukhwant Singh v. State of Punjab (1995) 3 SCC 367 held that
permitting the prosecution to tender a witness for cross-examination
only would be wrong and “the effect of their being tendered only for
cross-examination amounts to the failure of the prosecution to examine
them at the trial”. In the present case, however, non-examination of
Dr O.P. Poddar is not very material because the post-mortem report
coupled with the testimonies of Dr K.C. Jain PW 1 and Dr J.L. Bhutani
PW 9 were sufficient to enable the courts to come to the conclusion
about the cause of death.”

38. Participation and involvement of the appellant, in the instant crime,
have been proved beyond reasonable doubt. At the time of commission of
the offence, he was 30 years of age, now 45. Facts would clearly indicate
that he is one of the members of group of extremist persons, waging war
against the linguistic group of people in the State of Tripura. Persons
like the appellant armed with sophisticated weapons like AK 47, attacked
unarmed and defenceless persons, which included women and children.
Prosecution has stated that the minority community in the State of Tripura
is often faced with some extremists’ attacks and no leniency be shown to
such persons, at the peril of innocent people residing in the State of
Tripura.

39. We have laid down three tests – crime test, criminal test and RR
test, not the “balancing test”, while deciding the proportionality of the
sentence. To award death sentence, crime test has to be fully satisfied
and there should be no mitigating circumstance favouring the accused, over
and above the RR test. The hallmark of a sentencing policy, it is often
said, that sufficiently guides and attracts the Court is the presence of
procedures that require the Court to consider the circumstances of the
crime and the criminal before it recommends sentence.
40. Arbitrariness, discrimination and inconsistency often loom large,
when we analyze some of judicial pronouncements awarding sentence. Of
course, it is extremely difficult to lay down clear cut guidelines or
standards to determine the appropriate sentence to be awarded. Even the
ardent critics only criticize, but have no concrete solution as such for
laying down a clear cut policy in sentencing. Only safeguard, statutorily
and judicially provided is to give special reasons, not merely “reasons”
before awarding the capital punishment In Santosh Kumar Satisbhushan
Bariyar v. State of Maharashtra (2009) 6 SCC 498, this Court highlighted
the fact that the arbitrariness in sentencing under Section 302 may violate
the idea of equal protection clause under Article 14 and the right to life
under Article 21 of the Constitution. Many times, it may be remembered
that the ultimate sentence turns on the facts and circumstances of each
case. The requirement to follow the three tests, including the necessity to
state “special reasons” to some extent allay the fears expressed in Santosh
Kumar Satisbhushan Bariyar case (supra).
41. We have already explained few circumstances which favoured the
accused in the instant case, to hold it as not a rarest of rare case, which
are that the appellant alone could not have executed such a crime, which
resulted in the death of 15 persons and leaving so many injured and setting
ablaze 23 houses, that is the entire elements of the crime could not have
been committed by the appellant alone. Further, the appellant is a tribal,
stated to be a member of the extremist group raging war against the
minority settlers, apprehending perhaps they might snatch away their
livelihood and encroach upon their properties, possibly such frustration
and neglect might have led them to take arms, thinking they are being
marginalized and ignored by the society. Viewed in that perspective, we
are of the view that this is not a rarest of rare case for awarding death
sentence. All the same, considering the gravity of the crime and the
factors like extreme social indignation, crimes against innocent villagers,
who are a linguistic minority, which included women and children, we feel
it would be in the interest of justice to apply the principles laid down in
Swamy Shradananada (2) v. State of Karnataka (2008) 13 SCC 767.

42. Consequently, while altering the death sentence to that of
imprisonment for life, we are inclined to fix the term of imprisonment as
20 years without remission, over and above the period of sentence already
undergone, which, in our view, would meet the ends of justice. Ordered
accordingly.

43. The Appeals are, accordingly, disposed of.
eard Hear…………………………J.
(K. S. Radhakrishnan)
.….……………………J.
(Vikramajit Sen)
New Delhi,
March 4, 2014.

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