‘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.
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.”
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.47-48 OF 2013
Ashok Debbarma @ Achak Debbarma Vs State of Tripura
K. S. RADHAKRISHNAN, J.
Dated;March 4, 2014.
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.
some other
Charge-sheet was also filed against
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,
Page 4
5
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,
Page 5
6
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,
Page 6
7
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
Page 7
8
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
Page 8
9
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
Page 9
10
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
Page 10
11
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
Page 11
12
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
Page 12
13
disputed. The question that we are called upon to
decide with
is
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
Page 13
14
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
seriousness of the crime.
because
of
the
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
Page 14
15
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
Page 15
16
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
Page 16
17
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,
appellant’s name did not figure in the FIR.
the
PW13, in his
Page 17
18
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
Page 18
19
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
Page 19
20
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
Page 20
the
21
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
Page 21
22
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
Page 22
23
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?
Page 23
24
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 :
20.
................... (Blank).
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
Page 24
25
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)
Page 25
26
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
Page 26
27
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.
Page 27
28
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,
Page 28
29
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
Page 29
30
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
apprehensions.
of
it,
as
opposed
to
mere
vague
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:
Page 31
32
“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
Page 32
33
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
Page 33
34
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.
Page 34
35
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
Page 35
36
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
Page 36
37
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
Page 37
38
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”.
Page 38
39
(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
Page 39
40
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.
challenges
a
death
sentence
on
When an accused
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
Page 40
41
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
trustworthy and reliable.
by
the
eye-witnesses
is
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.
Page 41
42
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
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43
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’
Page 43
44
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
pronouncements awarding sentence.
some
of
judicial
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
Page 44
45
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.
the
ultimate
Many times, it may be remembered that
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
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46
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.
Page 46
47
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.
..............................J.
(K. S. Radhakrishnan)
.............................J.
(Vikramajit Sen)
New Delhi,
March 4, 2014.
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