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CASE NO.: Appeal (crl.)  867-868 of 2005

PETITIONER: Aloke Nath Dutta & Ors

RESPONDENT: State of West Bengal

DATE OF JUDGMENT: 12/12/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: JUDGMENT W I T H

CRIMINAL APPEAL NO.875 OF 2005

S.B. SINHA, J : INTRODUCTION :         Premise No.2C, a three storied building situate at Beadon Street  situated in the town of Kolkata, belonged to one Jagannath Dutta.  He  transferred the said property in favour of his wife Arunamoyee Dutta on  certain terms and conditions wherewith we are not concerned.  She had four  sons and one daughter.  During her life time, two of the sons, namely,  Biswanath Dutta (deceased) and Aloke Nath Dutta, (appellant), were  residing with her. Biswanath used to stay at the second floor with some  tenants occupying some portions thereof; whereas Aloke Nath Dutta used to  reside on the first floor.  Her daughter Anuradha Das was married and was  residing at Jadavpore.  Two other sons, namely, Amar Nath Dutta (PW-4)  and Samar Nath Dutta (PW-3) were residing in the towns of  Chandannagore  and Bararast respectively.   

Arunamoyee Dutta died intestate in April, 1993.  Aloke Nath was  working with Kolkata Police, whereas Biswanath was employed in the  United Bank of India.  Biswanath was a bachelor, whereas Aloke Nath is  married.  Mamata one of the appellants herein, is Aloke Nath’s  wife.   Sister  of  Mamata and her husband Shib Sankar Roy @ Gobinda @ Babu Roy  were also residing on the first floor.    

       Appellants herein are alleged to have entered into a conspiracy to  commit the murder of Biswanath on 22.01.1994 at the first floor of the said  premises, the details whereof,  we would deal with hereinafter.  

PROSECUTION CASE :

       Aloke Nath had many vices. He was a spendthrift.  He was a  womanizer and spent a lot of money in gambling and horse racing etc. He  intended to sell the said house property, wherefor he entered into agreements  for sale with one Nandlal Singh as also with one Arunmoy Bose. Arunmoy  Bose advanced a sum of Rs.65,000/- to him.  Nandlal Singh (PW-15) also  had advanced various sums of money to Aloke Nath from time to time.  He  on the advice of his advocate Bikash Pal (PW-14) refused to advance any  further sum till the time he was put in possession of the room of the second  floor and the Puja Room; which was promised to be delivered on  23.01.1994.

       Prosecution story is that the deceased was not in favour of sale of the  said property.  The transactions with regard to the sale of the said property,  in favour of the said Nandlal Singh and Arunmoy Bose, however, were  being conducted, as if Biswanath was a party thereto.  Appellant Mrinal

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Dutta is said to have been impersonating Biswanath and singed several  documents in his name.  

 Aloke Nath absented himself from duty from 7.00 p.m. on  22.01.1994 to 28.01.1994, as disclosed by his colleagues Sahadev Mondal  (PW-33), Ananta KumarThanedar (PW-34), and  Biman Ghosh Dastidar  (PW-35).

       Possession of Pooja Room and a room occupied by Biswanath was  delivered to Nandlal Singh on 23.01.1994.  Nandlal Singh noticed a newly  constructed ’bedi’ in the said room.  He asked him the reasons therefor, and  was informed that it was constructed for cooking purpose.  He asked him to  remove the same; whereto Aloke Nath promised to do so after  registration  of the sale  deed.   Nandlal Singh, as advised by his advocate, Bikash Pal,  issued an advertisement in the Newspaper ’Ananda Bazar Patrika’, a Bengali  Daily, on 31.01.1994. Bikash Pal suspected that Aloke Nath might have  other brothers and sisters and therefore advised issuance of such  advertisement.  Amar Nath, Samar Nath and Anuradha Das (PWs. 4, 3 and 5  respectively) informed Bikash Pal that they were also co-owners of the said  property and were not agreeable to sell the house.       

       In view of the aforementioned developments, Samar Nath (PW-3),  Amar Nath (PW-4) and Avijit Dutta (PW-6) allegedly visited the Premises  No. 2C, Beadon Street on 06.03.1994.  They enquired about  whereabouts of  Biswanath and were informed that he had started living at Barasat.  They  visited the house the address whereof was furnished by Aloke Nath. They  found out the same to be bogus as no person called Biswanath had been  residing there. They came back to Premises No.2C, Beadon Street.  They  insisted  upon Aloke Nath to disclose the whereabouts of Biswanath,  whereupon Aloke Nath allegedly broke down and made an extra judicial  confession before them, as also Nandlal Singh and some tenants, that he had  throttled Biswanath to death.  While commotion was on, the officer in  charge of the police station was informed by some neighbour of Aloke Nath.   While police was coming to the said premises, they met Samar Nath on the  way, who was going to inform them about the incident.  The police officer  came to the said house. Aloke Nath was arrested in the afternoon of  06.03.1994.  He was interrogated in the Police Station and was brought back  by the police personnel. The other accused were arrested on the next day.   

Aloke Nath is said to have made a confession at the police station that  he had concealed the dead body in a platform (a kind of cistern made of sand  and bricks). He pointed towards the said platform, whereupon two labourers  and one  mason were sent for; forensic experts were summoned.  The said  cistern was broken and dismantled. Foul smell came out therefrom and a  human skeleton lying beneath the same was seen. The skeleton was said to  have been identified to be that of Biswanath by Aloke Nath himself, which  was seized and sent to morgue.   Cause of the death, according to the  autopsy report was asphyxia.  Aloke Nath also made a confession leading to  recovery of certain articles belonging to the deceased Biswanath from the  rented premises which he had been occupying,  as also a confession leading  to recovery of some of the household articles.  

Appellant Mrinal Dutta is also said to have made a statement under  Section 164 Cr. P.C. before T. Uddini, Metropolitan Magistrate, 3rd Court  Kolkata on 21.03.1994.  He, however, retracted therefrom on or about  16.06.1994.   

Investigation was conducted by Sub Inspector Sukhendu Barick  attached to Burtolla  Police Station.  However the case was transferred to the  Detective Department of Kolkata Police and from 08.03.1994, Sub Inspector  Atanu Banerjee  (PW-48) took over the investigation of the case.

After having filed the charge-sheet, cognizance of the offence was  taken and the case was committed to the Court of  Sessions.     

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CHARGE  :

 All the accused were put to trial.  Three different sets of charges  were framed against them, under Sections 120B/302/34 and 201/34 IPC, in  the following terms :

"First \026 That  you,   all   in  the  month  of   January,  1994 at 2/C, Beadon Street, Calcutta, agreed to  do and caused to be done an illegal act, to wit, to cause  the death of Biswanath Dutta by murdering him to enable  Aloke Dutta to sell the premises no. 2/C, Beadon Street,  Calcutta and that such illegal act of murder was  committed in pursuance to the agreement and you all  thereby committed an offence punishable under Section  120B/302 of the Indian Penal Code, and within the  cognizance of this Court of Sessions.

Secondly \026 That you, all on about the night 22nd  day of January 1994 at 2/C, Beadon Street, Calcutta,  pursuant to the criminal conspiracy mentioned in Court  No.1 above and with the common intention of you all,  did commit murder by causing the death of Biswanath  Dutta, and you are  thereby committed an offence  punishable under Section 302/34 of the Indian Penal  Code, and within the cognizance of this Court of  Sessions.

Thirdly \026 That you, all on or about the night of  22nd day of January 1994, at 2/C, Beadon Street,  Calcutta, with the common intention of you all, to cause  the evidence of murder to disappear and to screen the  offenders, concealed the dead body of Biswanath Dutta  after he was murdered, inside the cavity created on the  wall shelf of the room of Aloke Dutta and thereafter  covered the same by bricks and cements and you all  thereby committed an offence punishable under Section  201/34 Indian Penal Code and within the cognizance of  this Court of Sessions.

And I hereby direct that you be tried by the said Court on  the said charge."        

NATURE OF EVIDENCE :         Before the learned Sessions Judge, as many as 48 witnesses were  examined on behalf of the prosecution. The brothers of Appellant Aloke  Nath, viz. Amar Nath and Samar Nath, and Sister Anuradha examined  themselves as PWs. 4, 3 and 5 respectively.  Son  of Amar Nath, Avijit, was  examined as PW-6.

Witnesses examined on behalf of the prosecution can be sub-divided  in three categories, namely, (i) Sale of house, (ii) Tenants at Premises No.  2C, Beadon Street, and (iii) Witnesses who testified about Aloke’s character  and conduct as also others like Photographer, labourers,  Mason  etc.           We would deal with the depositions of the prosecution witnesses  hereafter at an appropriate stage.

SESSIONS JUDGE :

The learned Sessions Judge by reason of the judgment of conviction  and sentence dated 29.08.2003 convicted Aloke Nath, Mrinal Dutta and  Gobinda Roy under Sections 302/120B and 302/34 IPC and sentenced them  to death. Mamata Dutta was, however, sentenced to suffer imprisonment for  life under Section 302/34 IPC and to pay a fine of Rs.5,000/-, in default to  suffer imprisonment of two more years.  They were also convicted for

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commission of offence under Section 201/34 IPC and to pay a fine of  Rs.3,000/- each, in default to suffer imprisonment for one more year. No  separate sentence was awarded under Section 402/120B IPC.   

       Appellants preferred appeals before the High Court.          HIGH COURT  : The High Court agreed with the findings of the learned Sessions  Judge.  It was opined that all Appellants had hatched a conspiracy and the  deceased was killed when he was asleep.  While considering the quantum of  punishment, the High Court sought to draw a balance between aggravating  and mitigating circumstances and observed that the case comes within the  category of rarest of rare cases.  It was observed that the learned Sessions  Judge had rightly exercised the option in favour of the capital punishment to  Aloke Nath, Mrinal Dutta and Shib Sankar Roy @ Gobinda @ Babu.  The  High Court refused to differentiate the case of Aloke Nath from that of   Mrinal Dutta and Gobinda @ Babu, holding that  all the three were part of  the conspiracy to execute the pre-planned murder of Biswanath.  Upon  screening of evidence, the High Court dismissed the appeals preferred by  them. The order of conviction and sentence of the learned Trial Judge passed  against Mamata was also upheld by the High.   

SUBMISSIONS :

       Arguments on behalf of Appellants have been advanced principally by  Mr. Pradip Ghosh, the learned Senior Counsel appearing on behalf of Mrinal  Dutta.   

Submissions of the learned Senior Counsel are :  (i)     The judgment of conviction being based on circumstantial  evidence and there being no eye-witness;  the prosecution cannot  be said to have proved all the links in the chain so as to prove that  Appellants were guilty of commission of the alleged offences.  (ii)    Circumstantial evidences brought on records by the prosecution  were not sufficient to bring home the charge of conspiracy against  Appellants to commit murder of Biswanath. (iii)   The courts below committed a serious error insofar as they failed  to distinguish between a larger conspiracy to commit a murder and  a relatively smaller conspiracy for impersonation of Biswanath by  Mrinal Dutta,  committing the offence of forgery or cheating  (iv)    As the purported extra judicial confession made by Aloke Nath  was confined to acceptance of his own guilt, the courts below  could not have convicted all Appellants under Section 302/34 IPC  relying on or on the basis thereof.  (v)     The purported confession made by Aloke Nath leading to recovery  of the dead body and certain articles belonging to Biswanath which  had been sold to Gobinda Sarkar (PW-26), did not conclusively  lead to the prosecution’s case of conspiracy; and no judgment of  conviction could have been arrived at solely on the basis thereof,  having not been corroborated in any manner whatsoever.  (vi)    Confession of an accused, even if accepted, must be considered in  its entirety and not in pieces  (vii)   The judgment of conviction could not have been arrived at on the  basis of judicial confession made by Mrinal Dutta which has since  been retracted and was thus of weak evidentiary value, especially  when there was no corroboration thereof  (viii)  Mrinal Dutta was not put to test identification parade,  although  Aloke Nath was.  His identification in court by the witnesses was  of  weak evidentiary value and no reliance could have been placed  thereupon.   (ix)    Judicial confession purported to have been made by Mrinal Dutta  disclosed that he had been forced to join Aloke Nath and, thus, the  courts below ought to have held that he made confession as a  repenter  and his being a party to the larger conspiracy was, thus,   in serious doubt.  

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(x)     In any view of the matter, extreme punishment of death could not  have been awarded having regard to the nature of the evidences led  by the prosecution.   

       Submissions of Mr. Altaf Ahmad, the learned Senior Counsel  appearing on behalf of the State, on the other hand,  were  :  

(i)     That although there was no direct evidence as against Appellants,  the sixteen circumstances enumerated by the learned Trial Judge  and affirmed by the High Court, were based on positive evidences  led on behalf of the prosecution. (ii)    Evidences, both oral and documentary, led by the prosecution were  sufficient to arrive at the finding of guilt as against all the accused.   (iii)   Extra judicial confession made by Appellant Aloke Nath having   not been retracted and the same having been proved by a large  number of witnesses including independent witnesses and it being  voluntary in nature was rightly relied upon by the courts below.   (iv)    Extra judicial confession made by  Aloke Nath was made to his  elder brothers Samar Nath (PW-3) and Amar Nath (PW-4) in the  presence of his nephew  Avijit Dutta (PW-6), the intending  purchaser of the house Nandlal Singh (PW-15) as also two tenants  of the premises, namely, Swapan Dutta (PW-18) and Bijoy Sharma  (PW19) and their testimonies having not been shaken in cross- examination, the learned Trial Judge as also the High Court  committed no error in passing the judgment of conviction and  sentence as against all of them.   (v)     A free and voluntary confession deserves due credit as it is  presumed to flow from the highest sense of guilt.   (vi)    Judicial confession might have been retracted, but the learned Trial  Judge and the High Court upon analysis of the material brought on  records came to the conclusion that the same was true and had  been voluntarily made, and there is no reason to interfere with the  said findings.  It is not a rule of law that a judicial confession must  be corroborated in materials produced by independent witnesses. (vii)   Appellant Mrinal Dutta having retracted his confession only at a  much later stage without specifying any reason therefor; no  importance thereto should be attached.  (viii)  In his examination under Section 313 of the Code of Criminal  Procedure he alleged torture at the hands of  PW-44, but PW-44  having not been cross-examined on the said point, the judicial  confession was admissible in evidence not only against the maker  thereof, but  also against the co-accused in terms of Section 30 of  the Indian Evidence Act.   (ix)    Enough materials by way of documentary and oral evidences of the  witnesses were brought on records to prove criminal conspiracy  showing not only that Mrinal Dutta but also Babu Roy and  Mamata Dutta signed various documents executed by Aloke Nath.   (x)     Judicial confession made by Mrinal Dutta contained vivid  description of the manner in which the deceased Biswanath was  done to death and his dead body was put in the bedi (platform) in  the room occupied by Aloke Nath, the same was sufficient to prove  the charge of conspiracy.  In any event,  involvement of all the  accused persons in committing murder of Biswanath and disposing  of the dead body has amply been proved.

DISCUSSIONS : The incident took place on the night of 22.01.1994.  Biswanath was  last seen alive by some of the  tenants,  who were examined viz.  Swapan  Dutta (PW-18), Bijoy Sharma (PW-19), Albela Sukla (PW-20), and Raj  Kishore Singh (PW-23).  According to PW-18, he had seen Biswanath alive  on the said date.  He had also allegedly seen Biswanath being called by   Appellant Aloke Nath to his own room.  He was not heard and seen  thereafter.

Analysis of the evidences is required to be done keeping in view the

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factual matrix involved herein.   Criminal Conspiracy : Criminal conspiracy, if any, arose out of the greed of Aloke Nath.  He  needed money to satisfy his bad habits.  A situation came to such a pass that  he had to negotiate with two persons for sale of the house simultaneously.   He had taken money from both the intending purchasers.  Apparently, with a  view to extract money from the said two purchasers, he pretended, that he  and the deceased were the only owners of the house.  The deceased might  not have been willing to sell the house, but he might not have also been  aware of the transactions.  Aloke Nath might have intended to keep him in  dark and swallow the entire amount of consideration.  His other brothers and  sisters had also not been taken into confidence.   Indisputably, they were on  litigating terms with the deceased and Appellant Aloke Nath.  Assistance of  Mrinal Dutta in impersonating Biswanath was obtained by Aloke Nath.  He  was paid a sum of Rs.5,000/- for the same. He was impersonating Biswanath  and had been signing, executing documents and posing himself as such at  Aloke Nath’s instance.

       When Nandlal Singh (PW-15) pressurized Aloke Nath to hand over  possession of a few rooms to him on the advice of his lawyer Bikash Pal,  Aloke Nath apparently became desperate.  Whether he hatched a conspiracy  with the other Appellants at that point of time to do away with his brother  Biswanath and dispose of his dead body so as to get the entire amount of  consideration of the sale of the house, is the core question.  There is no  direct evidence to show that other Appellants also were part of the said  conspiracy.  Their presence had not been noticed by any of the witnesses.  Nobody saw them together in the house.  Nobody saw Mrinal Dutta coming  to the house even once.  We are not oblivious of the fact that it is difficult to  have direct evidence of conspiracy.  But to prove conspiracy hatched to  commit a heinous crime, circumstantial evidence brought on records must be  such which would have no loose ends to tie.

Circumstances :    

       With the aforementioned principles in mind, we may now notice the  various circumstances found to be existing against Appellants as enumerated  by the learned Trial Judge and accepted by the High Court.   

       For the aforementioned purpose we may, at the outset notice, the  statements of the witnesses whom we have categorized in Category (i).  

       PW-7, Shanker Dey is an attesting witness to the agreement for sale of  the house in question with Arunmoy Bose (PW-8).  He proved passing of an  advance amounting to Rs.65,000/- to Aloke Nath.   Arunmoy Bose who was  the intending purchaser and with whom Aloke Nath had entered into an  agreement also proved passing of the said consideration to Aloke Nath.   Both Shanker Dey (PW-7) and Arunmoy Bose (PW-8) also stated in details  the negotiations leading to execution of the said agreement for sale.   

Sudhakar Singh (PW-10) and Nawratan Singh (PW-16) were brokers.   They were employed by Nandlal Singh (PW-15).  They have also deposed as  to how the transactions relating to sale of the house by Aloke Nath in favour  of Nandlal Singh proceeded.  They have also proved passing of the amount  of advance from time to time by Nandlal Singh in favour of Aloke Nath.   Bikash Pal, who examined himself as PW-14 is again a witness who was a  witness to the said transaction.  It was only at his instance Nandlal Singh  refused to give further advance to Aloke Nath unless he had been put in  possession of a part of the said property.  Bikash Pal advised Nandlal Singh  to publish an advertisement in the Anand Bazar Patrika as he  suspected that  there might be other owners of the property.  He identified the accused in  court. Other witness also identified them.  Their evidences taken in entirety  however do not lead to the conclusion that they conspired to murder  Biswanath. But it is sufficiently clear that they conspired to sell the property.   We would deal with this question a little later at some depth.  

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We would hereinafter notice the alleged sixteen circumstances  enumerated by the learned trial judge in his judgment and the evidences  available in regard thereto :  

1.      Since the death of  his mother,  Aloke Nath tried to sell the house  surreptitiously without informing his other brothers and sister,  and as  he was not supported by Biswanath, he endeavuored to sell the house  secretly.  2.      Prior to the said incident, Aloke Nath entered into an agreement with  Arunmoy Bose (PW-8) and received a sum of Rs.65,000/- where  Aloke Nath had put his signature and Mrinal Dutta had signed as  Biswanath. 3.      To earn more money and to grab the property of his brothers, Aloke  Nath entered into an agreement with one Nandlal Singh (PW-15).  He  introduced Mrinal Dutta as Biswanath and delivered possession of the  two rooms on the 2nd floor.  He was asked to dismantle the kaccha  bedi to he replied that the same would be dismantled later on.   Payment of advances was made from time to time. 4.      Possession of the first floor was delivered in the month of February  1994, whereupon it was noticed that the ’bedi’ had not been  dismantled, instead it was made more stronger by fully plastering it  with red colour cement. 5.      As per advice of Bikash Pal (PW-14) an advertisement was published  in Ananda Bazar Patrika for sale of the house. 6.      Bikash Pal received three objections  (Ex. 24 collectively).  He in turn  wrote two letters to PWs-3 and 4 (Ex. 25).  When he informed  thereabout Aloke Nath told that he was trying for settlement with  them.   7.      Possession of the first floor was delivered to PW-15 on 14.02.1994 by  Aloke Nath and he told that Babu Roy would stay in the covered  verandah for a couple of days.   8.      In the morning of 06.03.1994, PWs-3, 4 and 6 reached the place of  occurrence and found PW-15 in occupation.  On being asked, Aloke  Nath replied that Biswanath had left for Barasat and was staying at  11/1, Jhawtola Lane, near Barasat Chowrasta, whereafter they left for  the said place. 9.      PWs-3, 4 and 6 returned to Premises 2C, Beadon Street and as they  did not find existence of the address, they charged Aloke Nath to  speak the truth in presence of tenants, local people etc.  Aloke Nath  then confessed that he had throttled Biswanath to death in the  midnight of 22.01.1994 and kept the dead body concealed inside the  hosue. 10.     On 06.03.1994, O/c Burtolla Police Station received a telephonic  message from an anonymous caller about the disturbance in front of  the said premises.  Police recorded the statement of PW-3, Samar  Nath and arrested Aloke Nath. 11.     On the basis of the said confession, the bedi was dismantled by mason  and labourers PWs-9, 30 and 31 and a human skeletonized  body was  found, which was identified by Aloke Nath to be of the deceased  Biswanath.  This fact has been proved by the PWs-3, 4, 6, 9, 15, 18,  19, 23, 30, 46 and 47. 12.     PWs-3, 4 and 6 also disclosed about the special  identification mark(s)  of Biswanath.  The doctor  on examination of the skeletonised body  opined that the same was homicidal in nature and the death was due to  throttling. 13.     Skeletonised body had been subjected to the superimposition test  conducted by expert PW-41, who opined the examined skeleton to be  that of a human male, 5’-6"  feet tall,  aged 40-50 years. 14.     Biswanath was seen alive on 22.01.1994 as he went to the office  which has been proved by Ex.64 and 64/1.  Accused Mrinal Dutta in  his confessional statement which is believable, remarked that Aloke  Nath and Biswanath were seen together on 22.01.1994 between 10- 10.30 p.m. at 2C, Beadon Street.  Biswanath was goaded to sleep in  the verandah on the 1st floor, near Aloke Nath’s bedroom on the plea   

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that Biswanath’s room on 2nd floor was under repair.      15.     Accused Mrinal Dutta came to the premises and found  Aloke Nath,  Babu Roy, Mamata Dutta and her two daughters present there.   Thereafter, in the midnight of 22.01.1994, Aloke Nath had first  entered into the covered verandah where Biswanath was sleeping and  having found Biswanath in sound sleep, called Babu Roy, Mrinal  Dutta and Mamata Dutta.  Mamata gave one blanket to Aloke Nath  who then covered the head and face of Biswanath with the blanket,  Mrinal Dutta caught hold of the hands of Biswanath and Babu Roy  held his legs.  The accused Aloke Nath then pressed the neck of  Biswanath and killed him.  16.    After delivery of the possession of the first floor of the premises to  PW-15, Aloke Nath shifted his residence to the tenanted premises. On  the basis of his confessional statement (Ex. 108) and on being  identified and pointed out by him, the Investigating Officer on  10.03.1994 recovered and seized the personal belongings of  Biswanath.  On some articles the name of Biswanath appeared.

Evidences accepted by the Trial Judge : Re: Circumstnaces Nos.1 & 2 :         PW-7 Shankar Dey, is  the attesting witness to the agreement made by  Aloke Nath with Arunmoy Bose to sell the house.  He, as noticed  hereinbefore, identified Mrinal Dutta as impersonating Biswanath.   Arunmoy Bose (PW-8) has also proved the said fact.

Re: Circumstances Nos. 3  & 4 :         Sudhakar Singh (PW-10) and Nawratan Singh (PW-16) who worked  as brokers on behalf of Nandlal Singh (PW-15).  They  were witnesses to the  said transaction.  Sudhakar Singh, Nawratan Singh and Nandlal Singh  allegedly saw the kacha bedi, as also the objection on the part of Nandlal  Singh in regard thereto, to which Aloke Nath responded by promising to  dismantle the same, when the sale deed was  registered.   

Re: Circumstances Nos.  5 & 6 :         Publication of advertisement in Anand Bazar Patrika on 31.01.1994 in  respect of the transfer of Premise No.2C, Beadon Street, Kolkata (Ex.61) has  been proved by Bikash Pal (PW-14), Nandlal Singh (PW-15), intending  purchaser; as also Bijit Kumar Basu, General Manager (Law), Anand Bazar  Patrika  (PW-28).   Amar Nath (PW-4), brother of  Appellant Aloke Nath, in  his evidence stated that he with his brother and sister filed  objections before  Bikash Pal in respect of the proposed sale.  From the evidence of Bikash Pal  (PW-14), it further appears that he confronted Aloke Nath with objections of  his brothers and sister.  Aloke Nath allegedly assured that he would settle the  matter with them.  Bikash Pal in his deposition further stated that according  to Aloke Nath, there was a deed of family dispute.  He has also proved that  on earlier occasion Aloke Nath had mentioned only about his one brother  and sister but the sister was never brought in picture; and only having  become suspicious as regards correction of the said statement he advised  Nandlal Singh  for publication of the notice in the said newspaper.

Re : Circumstance No.7  :         Sudhakar Singh (PW-10), Nandlal Singh (PW-15) and Nawratan  Singh (PW-16) were witnesses to the delivery of possession of the room  which had been occupied by Aloke Nath.  They stated that Aloke Nath  represented that his brother in law and family would stay in the covered  verandah, for a couple of days.  He further represented that the ’bedi’ would  be dismantled immediately after registration.  The evidence of the said  witnesses also show that apparently Aloke Nath had contacted his brothers  and sister and only on that basis he  had asked Nandlal Singh (PW-15) to be  present in the premises at 2C Beadon Street on 10.03.1994, as his elder  brothers and nephew PWs 3, 4 and 6 would visit.

Re: Circumstance  No.8 :          The visit of PWs 3, 4 and 6 at the premises stood proved by their  evidences.  They further stated that when asked about the whereabouts of

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Biswanath, they were told that he was staying at 11/1, Jhawtola Lane, near  Barasat Chowrasta; whereupon they visited that place and came back after  they failed to ascertain the said address.

Re: Circumstance No.9 :         Circumstance No.9 has been proved by PWs 3, 4 and 6 as also PWs  15, 18 and 19.  The purported confession of Aloke Nath was made in  presence of the said witnesses.  The purported confession was made when  PWs 3, 4 and 6 came back after search of the deceased at Barasat Chowrasta  and accosted Aloke Nath with regard to the whereabouts of Biswanath.   Evidently they suspected some foul play.  It is at that point of time, Aloke  Nath was said to have broken down and made the confession before the said  witnesses.   

Re: Circumstance No.10 :         It would appear from the evidences of Sukhendu Barick, Sub  Inspector of Police (PW47) and Samar Nath (PW-3) that when the police,  having received information that some untoward incident had happened at  2C, Beadon Street, was going to the said place, Samar Nah met them on the  way who was going to the police station to lodge an F.I.R.  The police came  to the said premises and recorded his statement.  Aloke Nath was arrested.   The said circumstance has been proved by Samar Nath (PW-3) and Amar  Nath (PW-4), brothers of Appellant Aloke Nath, Avijit Dutta son of Amar  Nath (PW-6), Nandlal Singh (PW-15), Swapan Dutta (PW-18) and Bijoy  Sharma (PW-19), tenants of the said house.  Thereafter Aloke Nath made  confession.

       Aloke Nath made three confessions : (i) confession stating the manner  in which the deceased was killed as also burial of his dead body; (ii)  confession leading to the recovery of the dead body; and (iii) confession  relating to the disposal of the belongings of Biswanath.   

Relevant portions of the second confession are  as under :

       "On the night of 22.01.1994, after strangulating  my elder brother Biswanath Dutta to death, I built up  kind of a cistern with bricks, sand and cement underneath  the cupboard on the southern side of a first floor room of  our ancestral home, in which I used to live, and hid the  dead body of my elder brother inside it and sealed the  cistern, giving it the shape of a masory platform. If I am  taken along there I can show that room and the masory  platform built inside it.

       After having  buried the dead body of my elder  brother Biswanath Dutta into the cistern.  The excess  brick, sand and cement had been kept under a cot in our  house.  If I am taken along, I can show them as well.

       Recorded by me, read-over explained and admitted  to be correct."

       "After killing my elder brother Biswanath Dutta, I  hid his valuable belongings like record player, tape,  radio, wall clock, amplifier, suitcase, shirts, trousers, bag,  three trunks etc. and many other articles in my bedroom  at my present address at J/F/6/1, Ashwini Nagar, Bidhan  Palli, Baguihati, Calcutta-59.  If I am taken along there I  can show that room and the belongings of my elder  brother.

       The police interrogated me and recorded my  statement.

       Recorded by me, read-over explained and admitted

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to be correct."         Relevant portions of the third confession is as under :

       "After killing my elder brother Biswanath Dutta,I  sold the wooden almirah in his room, mirror and many  other articles including our domestic pump set etc. to  Gobind Sarkar a resident of Nimtala for seven thousand  rupees.  If I am taken along, I can identify Gobinda  Sarkar, his residence and those articles.

       Selling of those articles (partly torn) and I got the  money from Gobind Sarkar and give him a receipt for the  same.

       The police interrogated me and recorded my  statement.

       Recorded by me, read over, explained and Bengali  and admitted to be correct."                     Re : Circumstance No. 11 :

       His confession lead to the recovery of the dead body, PW-3, PW-4,  PW-6, PW-9, PW-15, PW-18, PW-19, PW-23, PW-30, PW-46 and PW-47  were witnesses to the said recovery.  Sukhendu Barick, Sub-Inspector (PW- 47) allegedly sent for masons for demolishing the Bedi; whereupon Jatin  Singh (PW-9) and Gopal Pramanik (PW-30) masons, came and demolished  the Bedi.  A human body in form of skeleton was noticed, which was taken  out and identified to be that of Biswanath.  Ashok Kumar Banerjee,  Inspector of Kolkata Police (PW-47) is also a witness to the said occurrence.

Re: Circumstances Nos. 12 and 13 :         Circumstances Nos. 12 and 13 relate to the identification of the dead  body and its autopsy.  Biswanath was to have an extra tooth.  It was proved  by his brothers PW-3 and PW-4 as also his nephew PW-6.  It was found to  be an identification mark.  The ante-mortem injuries on the dead body and  the opinion  of Dr. Nandy (PW-39), Autopsy Surgeon ,are as under :          "\005There was 4" x 3" area of extravasation of blood on  the surface of  trachea and surrounding soft tissue along  with hyoid and thyroid.  There was fracture hyoid bone  on the right cornue with evidence of extravasation on the  margins.  Evidence of extravasation on the posterior  aspect of oesophaeal 2" x <" size against 3rd, 4th and 5th  cordial vert.  Extravasation are more on the right side of  midline for both trachea and oesophagus and also other  tissue.  The extravasation were blakish red in colour.  No  other injury could be detected ever after careful  examination.  The right femur was 17.8", the 12.3" and  the right ulna 11.1".  The changes in symphyseal surfact  were at part with the mentioned age of 43 years.  I  preserved stomach with contents both kidneys and liver  insaturated solution of common salt.  Sample of  preservative was preserved.  Scalp hair heart were  preserved without any preservative, nail cutting  preserved tissue from extravagated area preserved.  Both  preserved.  There was no blood of neck for example  throttling ante-mortem and homicidal in nature.  This is  the report which bears my signature."        

       The dead body was also examined by Dr. V.K. Kashyap (PW-41).  In  his evidence, he opined that the dead body was of a human male, aged about  40-45 years and his height would be around 5’ and 6".

Re: Circumstance No.14 :

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       Swapan Dutta (PW-18) was a tenant of the second floor of the  premises (pages 109-113).   He saw Biswanath at 10-10.30 p.m. on the night  of 22.01.1994.  According to the said witness, he was taken to the first floor  of the house by Aloke Nath on the pretext that his room was under repairs.   He had testified that Biswanath was not seen thereafter.  Kartick Chandra  Sinha, (PW-29) who was the Chief Manager of the United Bank of India,  also proved that from 23rd January, 1994 onwards Biswanath did not attend   his office.

Re: Circumstance No.15 :          There is no independent witness to prove the said fact except the  purported confessional statement of the accused Mrinal Dutta.  His  purported confession before the Magistrate is as under:

       "My wife’s brother Gobindo Roy used to stay on  rent at the house of Alok Nath Dutta at (2/C) Beadon  Street, I was introduced to Alok through Gobindo.  Alok  and me used to visit each other’s house.  Alok did not  bear a good character.  He used to have stakes in horses,  Satta (a sort of numbers game played for gambling) and  also used to go to at prostitutes.  Alok’s elder brother  Biswanath Dutta also used to stay at the same house.   They did not have good relation among them.  Alok told  me during the Puja of 1993 that he would sell his house  and also tried hard for that.  On the last November he told  me that he wanted to sell the house but since his elder  brother was not agree to sign,  I had to sign in the name  of Biswanath Dutta.  At first I did not agree.  Then he  told that he would give me money.  "You sign it".  I was  in need of money, so I agreed with that.  Then he took  my signature in the name of Biswanath Dutta in quite a  few sheets of paper.  He gave me Rs.5000/- (five  thousand rupees only) in instalments.  After that he told  me to sign in a quite a few sheets of papers.  In date  19/20 on the last January month of 1994 he came to my  house and said, I think the house cannot be sold "Dada"  (Elder brother) is not agreeing to put his signature.  It is  better to eliminate ’dada’ (elder brother).  He said, "I am  thinking of murdering my ’Dada’ (Elder brother)".  I said  him, "I cannot do this".  He said, ’You had put fake  signature.  So, if we get caught, we will not spare you  either."  Mamata Dutta is the wife of Alok Dutta.   Gobinda Roy signed some of the papers while Mamata  signed some others.   Gobindo is the brother of my wife.   He is also the husband of my  wife’s sister.  He left after  we stopped and on the following  I went to Alok’s place.   He told me further that he would pay me Rs.10,000/-  more.  I said, if I am spared for this, then I am agree to do  this".  I found Gobindo, Alok, Mamnata \026 the three were  sitting at his house.  They closed the door after they took  me to the room at first floor.  Then he, Gobindo, Alok  and Mamata said to me, on 22nd January, at night, you  will come.  Gobindo and Alok will make all the  arrangements".  While leaving they said, if you don’t  come, we shall harm you".  As usual I came to Alok’s  house on 22nd January at 10.00 p.m. and saw that Alok,  Gobindo, Mamata and two daughters of  Alok talking.   As I went they let me in and shut the door.  As I entered  in the room I saw that there was a little brick wall under  the cupboard (wall Almirah).  There were some cement,  sand and bricks on the floor.  Just at 10.30 p.m.  Biswanath Dutta came to the house.  Alok said to  Biswanath, the work is going on at the room of second  floor.  "You lie down on the wooden cot at the veranda  on the first floor".  Biswanath lied down on the veranda.  

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We were sitting inside the room.  At about 12/12.30 p.m.  two daughters of Aloke were slept.  Then Alok came  outside.  After some time came inside the room and said,  Dada (elder brother) had slept.  Then Mamata gave Alok  a rug.  Gobindo, Alok and I came outside.  At once  Gobinda held two legs of Biswanath.  I held two hands.   Alok suffocated Biswanath on placing the rug on his face  and neck, after 7/8 minutes Alok took the rug from the  face of Biswanath.  Then he pulled the hairs of  Biswanath and on turning the eye lids he saw and said,  "the work has been done.  Immediately four of us took  the dead body inside the room and laid the dead body  inside the brick-structure after folding two legs.  Then all  of us filled up the rest of the sand and bricks which were  kept aside over the dead body.  Mamata handed down the  water and the bricks.  By the time we finished it had  dawned.  After that at about 5.30/6 Alok left for his own  home, while going Alok said "you have to come again at  noon-time."  Again at noon time I came to his house.  He  then told me to sign in a paper.  After signing that I went  to my house.  > days after that I met Alok at his place.   He said, "I cannot give you any money now".  I will see  it after some time.  I could not sleep well after returning  home.  I used to move in fear I stayed outside from my  house for some days.  On the last 07.03.1994 (Eng)  police arrested me from my house."                                             T. Uddini (PW-43) was the Magistrate, before whom the purported  confession was made by Mrinal Dutta.  He had issued a certificate as is  required under Section 164 of the Code of Criminal Procedure.  He testified  that he had satisfied himself that confession made by Mrinal Dutta was  voluntary.

Re: Circumstance No. 16 :         Subhas Mazumdar (PW-11) and Nripen Chandra Das (PW-12) are  witnesses to Aloke Nath’s entering into an agreement of tenancy and shifting  to Premises at JF-6/1, Aswini Nagar, Bidhan Pally, Baguihati and  recovery  of goods. Atanu Banerjee, Sub Inspector of Police (PW-48), also testified as  regards recovery of goods from the said premises.

FINDINGS : We may now consider the evidences available on records for  analyzing the reasonings of the courts below vis-‘-vis involvement of each  of Appellants before us.    Aloke Nath :         Title in respect of the property in question is not in dispute. The fact  that Aloke Nath and his three brothers and one sister inherited the said  property from their mother also stands admitted.  A faint attempt has been  made by the learned counsel appearing on behalf of Appellants to convey  the possibility of the brothers of Aloke Nath implicating him owing to the  property, but we can safely ignore the same.   

The events began from November 1993.  It was only Aloke Nath who  had asked Mrinal Dutta to sign some blank papers impersonating Biswanath.   He was paid a sum of Rs.5,000/- therefor.  On the basis thereof, agreements  for sale were executed by and between Aloke Nath and Biswanath with  Nandlal Singh.  Out of the agreed amount of consideration of Rs.2,60,000/-,  a sum of Rs.60,000/- was paid to him.  A sum amounting to Rs.30,000/-,  Rs.20,000/-  and Rs.10,000/- were paid on 11.11.1993, 12.12.1993 and  25.12.1993 respectively by Nandlal Singh to him.  Although Aloke Nath  received a substantial amount, his greed did not end there.  He, as noticed  hereinbefore, entered into another agreement for sale with Arunmoy Bose  (PW-8) who had also paid a sum of Rs.65,000/- by cheque.  He must have  spent the entire amount or at least a substantial part of it.

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Biswanath was allegedly killed on 22.01.1994.  The second floor of  the house which was in occupation of Biswanath was handed over to  Nandlal Singh on 23.01.1994 upon receipt of further advance. The first floor  was handed over on 14.02.1994,  after Aloke Nath shifted to his new  residence.  So far as Aloke Nath is concerned, having regard to the charges  framed, both the circumstantial evidence as also the extra judicial confession  made by him are relevant.  His further statements leading to the recovery of  the dead body as also recovery of articles belonging to Biswanath are also  relevant.  It has also been proved that he sold some of the articles belonging  to the deceased.    It is, however, disturbing to note that a confession has not been  brought on records in a manner contemplated by law.  Law does not  envisage taking on record the entire confession by marking it an exhibit  incorporating both the admissible and inadmissible part thereof together.   We intend to point out that only that part of confession which is admissible  would be leading to the recovery of dead body and/or recovery of articles of  Biswanath, the purported confession proceeded to state even the mode and  manner in which Biswanath was allegedly killed.  It should not have been  done.  It may influence the mind of the court.  [See State of Maharashtra v. Damu S/o Gopinath Shinde & Others \026 (2000)  6 SCC 269 at p. 282 \026 para 35]  

In Anter Singh v. State of Rajasthan [(2004) 10 SCC 657], it was  stated : "11. The scope and ambit of Section 27 of the Evidence  Act were illuminatingly stated in Pulukuri Kottaya v.  Emperor in the following words, which have become  locus classicus: (AIR p. 70, para 10) "It is fallacious to treat the fact discovered within  the section as equivalent to the object produced;  the fact discovered embraces the place from which  the object is produced and the knowledge of the  accused as to this, and the information given must  relate distinctly to this fact. Information as to past  user, or the past history, of the object produced is  not related to its discovery in the setting in which it  is discovered. Information supplied by a person in  custody that I will produce a knife concealed in the  roof of my house does not lead to the discovery of  a knife; knives were discovered many years ago. It  leads to the discovery of the fact that a knife is  concealed in the house of the informant to his  knowledge, and if the knife is proved to have been  used in the commission of the offence, the fact  discovered is very relevant. But if to the statement  the words be added with which I stabbed A these  words are inadmissible since they do not relate to  the discovery of the knife in the house of the  informant."" [But see Dhananjoy Chatterjee @ Dhana v. State of West Bengal [(1994) 2  SCC 220 at p.234-235]  

Therefore, we would take note of only that portion of the confession  which is admissible in evidence.

       Apart from raising a contention that the extra judicial confession had  not been recorded in the exact words of the maker thereof, no serious  argument has been advanced with regard to its truthfulness or otherwise  thereof. It was an oral confession. Evidently, the two brothers of Appellant  Aloke Nath, namely, Samar Nath (PW-3) and Amar Nath  (PW-4) as well as  his nephew Avijit Dutta (PW-6) became highly agitated after being misled  by Aloke Nath as he had made wrong statements as regards the whereabouts  of Bishwanath. They were also perturbed as the house  property was sought

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to be sold without taking them into confidence.    

In this context, it is important to revisit the events which took place on  and after 31.01.94. Before meeting further demands of Aloke Nath, Nandlal  on advice of his advocate Bikash Pal published an advertisement in Anand  Bazar Patrika on 31.01.94 inviting objections against the proposed  registration of the property.     In response to said advertisement, Aloke Nath’s two elder brothers,  Amar Nath and Samar Nath with sister Anuradha raised objections.  Aloke  Nath wanted to settle the matter with his co-owners.  Presumably with that  end in view he thought to invite his brothers for discussion at the premises  No. 2C, Beadon Street on 06.03.1994.  

       The incident which had taken place on that day may be divided in two  parts: (i) the manner in which PWs 3, 4 and 6 visited the place whereabout   they were wrongly informed as regards Biswanath’s new address; and (ii)  when they came back after a futile search and confronted Aloke Nath as  to   why  they  were  misled and again demanded information in regard thereto.

       Identification of the dead body has not been seriously disputed before  us.  Although in a given situation, the court might have scrutinized the issue  more closely, in view of the overwhelming evidence, it is not necessary for  us to do so.  Identification of the skeleton as that of Biswanath by Aloke  Nath has not been disputed.  It is accepted that he had an extra tooth is also  not in question.   The height of the deceased and his age again has also not  been disputed.   

       The fact that a platform was newly constructed is amply borne out  from the materials on record.  Nandlal Singh (PW-15), his brothers PW-3  and PW-4 and the brokers PW-17 and PW-18 stated, in no uncertain terms,  that not only despite having been asked Aloke Nath did not dismantle the  same, but in fact the same was re-enforced and painted with red colour.  Evidence as regards  Aloke Nath’s reply to the query regarding the  construction of  ’bedi’ that the same was meant for cooking purpose,  is also  not in much dispute.   

The fact that Aloke Nath had disposed of the belongings of the  deceased and other household materials is also not in much dispute.  It is not  necessary for us to notice evidences of other witnesses who had testified  about his character and misconduct, namely, Biswanth Basak (PW-21),  Soumitra Nayak (PW-22), Subir Mullick (PW-25), Gobinda Sarkar (PWs- 26) and Bebashish Kar (PW-27).  The circumstances enumerated by the  learned Trial Judge in the light of the evidences brought on record and the  extra judicial confession made by Aloke Nath, in our opinion, lead to only  one conclusion that the dead body  recovered was that of Biswanath and it  was Aloke Nath who was responsible for his death.     He does not dispute that he was a party to the transactions with  Nandlal Singh and Arunmoy Bose.  His many vices are amply borne out  from the materials. His absence from duty 11.01.1994 to 28.01.1994 has also  been proved by his colleagues PW-33, PW-34 and PW-35.   

EXTRA JUDICIAL CONFESSION : If the prosecution witnesses are to be believed that Aloke Nath made  an extra judicial confession and furthermore in view of the evidences on  record, it has to be held that the same was voluntary in nature.  The same  having been spontaneous in the form of natural response to a stressful  stimulus made at the spur of the moment, we, for the reasons stated  hereinafter, do not see as to why the same should be discarded.  He was  understandably reeling under a great mental strain.  He might have killed his  own brother, with a view to satisfy his greed of money, but the  circumstances clearly demonstrate that he had been pushed to the wall.  He  knew that his brothers and sister would definitely ask for an explanation as  to why without consulting them he tried to sell the house.  A ’bedi’ was

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constructed in his own bedroom which one day or the other,  was bound to  be dismantled  and the fact that a dead body buried therein would come out.   He had delivered  possession of bedroom which was occupied by his brother  Biswanath, as  also the premises which was in his occupation.  He, therefore,  was not in a position to dismantle the bedi and remove the dead body  clandestinely.  It is not that he was under any threat even by his brothers.  He  was required to give a satisfactory explanation and he made a false statement  on the morning of 06.03.1994 as regards the address of Biswanath.  He was  caught on the wrong foot.  Events which took place immediately thereafter  also assume great significance.  His confession was made before a large  number of persons.  Each one of them would not have been able to  remember the words used by him in his confession.  But then there was  absolutely no reason as to why the tenants of the premises would tell a lie.   PW-18 and PW-19, were tenants of the premises.  It had not been suggested,   that they were in any way inimically disposed  towards him.             Aloke Nath made extra judicial confession not only in  presence of his  own elder brothers PW-3 and PW-4 but also in the presence of his nephew  (PW-6), the intending purchaser of the house (PW-15) as also the two  tenants of the premises PW-18 and PW-19.  The evidences of these  witnesses are consistent and we do not see any reason as to why we should  disagree with findings of the courts below in this behalf.  

Our attention has been drawn to a decision of this Court in Heramba  Brahma and Another v. State of Assam [AIR 1982 SC 1595], wherein this  Court opined :              "18. We are at a loss to understand how the High  Court accepted the evidence of this extra-judicial  confession without examining the credentials of PW 2  Bistiram; without ascertaining the words used; without  referring to the decision of this Court to be presently  mentioned wherein it is succinctly stated that extra- judicial confession to afford a piece of reliable evidence  must pass the test of reproduction of exact words, the  reason or motive for confession and person selected in  whom confidence is reposed\005"  

The said decision was rendered on its own facts.  A purported   confession was made by the Appellant therein to another undertrial prisoner  in jail.  They were not known to each other.  There had been no previous  association between the witness and the other accused person.  The court in  the said factual backdrop, opined  that it was highly improbable that such  confession would be made.  Heramba Brahma (supra) is not an authority for  the proposition that extra judicial confession must pass the test of  reproduction of the exact words.  The tests laid therein are cumulative in  nature.  What is necessary for the court is to arrive at the conclusion as to  whether such confession has been retracted or not. No suggestion had been  given to the witnesses that confession had not been made.  No circumstances  had been brought out in cross-examination or by examination of independent  witnesses that the statements of witnesses proving such confession are not  correct.           In  State  of   Rajasthan v. Raja  Ram  [(2003) 8 SCC 180],  it was  held : "19. An extra-judicial confession, if voluntary and  true and made in a fit state of mind, can be relied upon by  the court. The confession will have to be proved like any  other fact. The value of the evidence as to confession,  like any other evidence, depends upon the veracity of the  witness to whom it has been made. The value of the  evidence as to the confession depends on the reliability of  the witness who gives the evidence. It is not open to any  court to start with a presumption that extra-judicial  confession is a weak type of evidence. It would depend  on the nature of the circumstances, the time when the

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confession was made and the credibility of the witnesses  who speak to such a confession. Such a confession can be  relied upon and conviction can be founded thereon if the  evidence about the confession comes from the mouth of  witnesses who appear to be unbiased, not even remotely  inimical to the accused, and in respect of whom nothing  is brought out which may tend to indicate that he may  have a motive of attributing an untruthful statement to the  accused, the words spoken to by the witness are clear,  unambiguous and unmistakably convey that the accused  is the perpetrator of the crime and nothing is omitted by  the witness which may militate against it. After  subjecting the evidence of the witness to a rigorous test  on the touchstone of credibility, the extra-judicial  confession can be accepted and can be the basis of a  conviction if it passes the test of credibility.

       It was further observed :

"20. If the evidence relating to extra-judicial  confession is found credible after being tested on the  touchstone of credibility and acceptability, it can solely  form the basis of conviction. The requirement of  corroboration as rightly submitted by the learned counsel  for the respondent-accused, is a matter of prudence and  not an invariable rule of law\005"

       In the case of Gagan Kanojia and Anr. v. State of Punjab [Criminal  Appeal Nos. 561-62 and 563 of 2005, decided on 24.11.2006, this Court  opined :  "Extra-judicial confession, as is well-known, can form  the basis of a conviction. By way of abundant caution,  however, the court may look for some corroboration.  Extra-judicial confession cannot ipso facto be termed to  be tainted. An extra-judicial confession, if made  voluntarily and proved can be relied upon by the courts."

       In Nazir Khan & Others  v. State of Delhi [(2003) 8 SCC 461], this  Court held :

       "\005A free and voluntary confession is deserving of  the highest credit, because it is presumed to flow from  the highest sense of guilty\005"  

[See also Ram Khilari v. State of Rajasthan  (1999) 9 SCC 89; and Namala  Subba Rao v. State of A.P. 2006 (10) SCALE  253].         It will also be relevant to consider State of Rajasthan v. Kashi Ram  [2006 (11) SCALE 440], wherein this court observed :  "There was nothing to show that he had reasons to confide in  them. The evidence appeared to be unnatural and unbelievable.  The High Court observed that evidence of extra-judicial  confession is a weak piece of evidence and though it is possible  to base a conviction on the basis of an extra- judicial  confession, the confessional evidence must be proved like any  other fact and the value thereof depended upon the veracity of  the witnesses to whom it was made."

       Recently, this Court held in the case of Kulwinder Singh  v. State of  Punjab [Criminal Appeal No. 675 of 2006], decided on 05.12.2006, this  Court held :  

"the evidentiary value of an extra-judicial confession must be

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judged in the fact situation obtaining in each case. It would  depend not only on the nature of the circumstances but also the  time when the confession had been made and the credibility of  the witness who testifies thereto."

In his confession Aloke Nath takes the entire  blame on himself.   We  are not persuaded to hold that the courts below erred in opining  that extra  judicial confession of Aloke Nath is in any way doubtful.

       On the aforementioned evidence, the involvement of Aloke Nath,  in  our opinion, is proved beyond any shadow of doubt.           We, therefore, hold that he has rightly been convicted of charges  leveled against him.

OTHER APPELLANTS : Circumstantial Evidence :

       We have analyzed the evidences adduced by the prosecution to  establish sixteen purported circumstances which had been relied upon by the  prosecution in order to bring home the guilt of the other Appellants herein.  Circumstances Nos. 14 and 15 enumerated by the learned Trial Judge  directly relate to the manner in which  Biswanath was allegedly murdered.   We will hereafter proceed on the basis that Circumstance No. 1 to 13  had also been proved against them also.  The question which would,  however, arise is as to whether the circumstances  leading to establishment  of the guilt of the murder of Biswanath can be said to have been proved by  reason of the purported circumstantial evidence as also the retracted  confession of Mrinal Dutta and extra judicial confession of Aloke Nath.  So  far as extra judicial confession of Aloke Nath is concerned, he implicated  only himself and did not implicate any other person in the conspiracy.

Circumstances nos. 1 to 13 are considered to be part of the same  transactions but Circumstances nos. 14 to 16  relate to distinct and different  charges.   Appellants other than Aloke Nath,  had not been seen by anybody  else immediately before or after the alleged occurrence.  In fact there is no  eye-witness to the alleged occurrence. The neighbours were also not  examined to show that any untoward incident had taken place.  There is  furthermore no evidence on record to show that any of  Appellants had even  taken part in concealment of the dead body.  The prosecution did not  examine any witness to establish the case as to how the other Appellants had  helped Aloke Nath in procuring bricks and cement or whether any other  person had helped him in concealment of the dead body. As Aloke Nath had taken the entire blame on himself and did not  speak anything in regard to involvement of the other appellants, there is no  evidence in regard to the meeting of mind with reference to the plot of  murder.  Aloke Nath evidently was in a desperate situation.  He required  money.  Others did not.  Motive on the part of  other Appellants is not  explicit.  Therefore, others cannot be treated to be his accomplice.  Even the  statements made by him, leading to recovery of the dead body or other  articles belonging to the deceased, do not implicate the other Appellants in  any manner whatsoever.

We may assume that other Appellants conspired with Aloke Nath for  selling the house.  Mrinal Dutta evidently had signed the blank papers.  He  purported to have executed some documents impersonating Biswanath. But  the question which must be posed and answered would be as to whether they  were parties to a bigger conspiracy of murder.  Signing of certain  documents, impersonation of Biswanath by Mrinal Dutta or the other  Appellants’ signing the said documents as witnesses, per se would not  lead  to the conclusion that at any point of time they had agreed with Aloke Nath  that Biswanath should be eliminated.  

There is no eye-witness to the occurrence.  Nobody has noticed        any suspicious conduct on part of the Appellants indicating their role in

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committing murder or disposing the dead body.   While dealing with a case  of grave nature like the present one, there is always a danger that conjectures  and suspicion may take the place of legal truth.  This court has laid down   guidelines from time to time in regard to a finding of guilt solely on the basis  of circumstantial evidence in a number of cases.  The process started with  Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh  [AIR 1952 SC 343] wherein the law was laid down in the following terms :

"It is well to remember that in cases where the evidence  is of a circumstantial nature, the circumstances from  which the conclusion of guilt is to be drawn should in the  first instance be fully established, and all the facts so  established should be consistent only with the hypothesis  of the guilt of the accused. Again, the circumstances  should be of a conclusive nature and tendency and they  should be such as to exclude every hypothesis but the one  proposed to be proved. In other words, there must be a  chain of evidence so far complete as not to leave any  reasonable ground for a conclusion consistent with the  innocence of the accused and it must be such as to show  that within all human probability the act must have been  done by the accused. In spite of the forceful arguments  addressed to us by the learned Advocate-General on  behalf of the State we have not been able to discover any  such evidence either intrinsic within Exhibit P-3-A or  outside and we are constrained to observe that the courts  below have just fallen into the error against which  warning was uttered by Baron Alderson in the above  mentioned case."

                                Yet again in Sharad Birdhichand Sarda v. State of Maharashtra [AIR  1984 SC 1622 = (1984) 4 SCC 116], this Court laid down the law in the  following terms :

"153. A close analysis of this decision would show that  the following conditions must be fulfilled before a case  against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of  guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the  circumstances concerned "must or should" and not "may  be" established. There is not only a grammatical but a  legal distinction between "may be proved" and "must be  or should be proved" as was held by this Court in Shivaji  Sahabrao Bobade v. State of Maharashtra where the  observations were made: [SCC para 19, p. 807: SCC  (Cri) p. 1047]

"Certainly, it is a primary principle that the  accused must be and not merely may be guilty  before a court can convict and the mental distance  between ’may be’ and ’must be’ is long and  divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only  with the hypothesis of the guilt of the accused, that is to  say, they should not be explainable on any other  hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature  and tendency,

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(4) they should exclude every possible hypothesis  except the one to be proved, and

(5) there must be a chain of evidence so complete as  not to leave any reasonable ground for the conclusion  consistent with the innocence of the accused and must  show that in all human probability the act must have been  done by the accused."

It was further observed :  

"179. We can fully understand that though the case  superficially viewed bears an ugly look so as to prima  facie shock the conscience of any court yet suspicion,  however great it may be, cannot take the place of legal  proof. A moral conviction however strong or genuine  cannot amount to a legal conviction supportable in law. 180. It must be recalled that the well established rule  of criminal justice is that "fouler the crime higher the  proof". In the instant case, the life and liberty of a subject  was at stake. As the accused was given a capital  sentence, a very careful, cautious and meticulous  approach was necessary to be made."

 The murder might have been committed in a very cruel and revolting  manner but that may itself be a reason for scrutinizing the evidence a bit  more closely.

       In Kashmira Singh v. State of M.P. [AIR 1952 SC 159], it was  observed :

"2. The murder was a particularly cruel and revolting  one and for that reason it will be necessary to examine  the evidence with more than ordinary care lest the  shocking nature of the crime induce an instinctive  reaction against a dispassionate judicial scrutiny of the  facts and law."

       In Swaran Singh Rattan Singh v. State of Punjab [AIR 1957 SC 637],  this Court observed :

       "Considered as a whole, the prosecution story may be  true; but between ’may be true’ and ’must be true’ there is  inevitably a long distance to travel and the whole of this  distance must be covered  by legal, reliable and unimpeachable  evidence before an accused can be convicted."

       In Mousam Singha Roy and Others v. State of West Bengal [(2003)  12 SCC 377], this Court held :

"27. Before we conclude, we must place on record the  fact that we are not unaware of the degree of agony and  frustration that may be caused to the society in general  and the families of the victims in particular, by the fact  that a heinous crime like this goes unpunished, but then  the law does not permit the courts to punish the accused  on the basis of moral conviction or on suspicion alone.  The burden of proof in a criminal trial never shifts, and it  is a‘lways the burden of the prosecution to prove its case  beyond reasonable doubt on the basis of acceptable  evidence\005"

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       It was furthermore observed :     "28. It is also a settled principle of criminal jurisprudence  that the more serious the offence, the stricter the degree  of proof, since a higher degree of assurance is required to  convict the accused."

CONFESSION GENERALLY:

       Confession ordinarily is admissible in evidence.  It is a relevant fact.   It can be acted upon.  Confession may under certain circumstances and  subject to law laid down by the superior judiciary from time to time form the  basis for conviction.  It is, however, trite that for the said purpose the court  has to satisfy itself in regard to: (i) voluntariness of the confession; (ii)  truthfulness of the confession; (iii) corroboration.                    This Court in Shankaria v. State of Rajasthan [(1978) 3 SCC 435]  stated the law thus : "22. This confession was retracted by the appellant when  he was examined at the trial Under Section 313 Cr. P.C.  on June 14, 1975. It is well settled that a confession, if  voluntarily and truthfully made, is an efficacious proof of  guilt. Therefore, when in a capital case the prosecution  demands a conviction of the accused, primarily on the  basis of his confession recorded Under Section 164 Cr.  P.C, the Court must apply a double test: (1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine quo non for its  admissibility in evidence. If the confession appears to the  Court to have been caused by any inducement, threat or  promise such as is mentioned in Section 24, Evidence  Act, it must be excluded and rejected brevi manu. In such  a case, the question of proceeding further to apply the  second test does not arise. If the first test is satisfied, the  Court must before acting upon the confession reach the  finding that what is stated therein is true and reliable. For  judging the reliability of such a confession, or for that  matter of any substantive piece of evidence there is no  rigid canon of universal application. Even so, one broad  method which may be useful in most cases for evaluating  a confession, may be indicated. The Court should  carefully examine the confession and compare it with the  rest of the evidence, in the light of the surrounding  circumstances and probabilities of the case. If on such  examination and comparison, the confession appears to  be a probable catalogue of events and naturally fits in  with the rest of the evidence and the surrounding  circumstances, it may be taken to have satisfied the  second test." [Also see Anil @ Raju Namdev Patil v. Administration of Daman and Diu,  Daman and Anr. - 2006 (12)  SCALE5 16 ].         A detailed confession which would otherwise be within the special  knowledge of the accused may itself be not sufficient to raise a presumption  that confession is a truthful one.  Main features of a confession are required  to be verified.  If it is not done, no conviction can be based only on the sole  basis thereof.   

       In Muthuswami v. State of Madras [AIR 1954 SC 4], this Court  opined : "8. The only reason the High Court give for accepting the  confession is because the learned Judges considered there  was intrinsic material to indicate its genuineness. But the  only feature the learned Judges specify is that it contains

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a wealth of detail which could not have been invented.  But the point overlooked is that none of this detail has  been tested. The confession is a long and rambling one  which could have been invented by an agile mind or  pieced together after tutoring. What would have been  difficult is to have set out a true set of facts in that  manner. But unless the main features of the story are  shown to be true, it is, in our opinion, unsafe to regard  mere wealth of uncorroborated detail as a safeguard of  truth."

RETRACTED JUDICIAL CONFESSION : We may notice that till the purported judicial confession of Mrinal  Dutta was recorded by PW-43, evidences collected during investigation  were only suggestive of the fact that some person(s) had executed   documents impersonating Biswanath.  In fact the witnesses did not recognize  Mrinal Dutta to be impersonating Biswanath. It was expected of the  Investigating Authority to put Mrinal Dutta on test identification parade to  prove the charge of impersonation of Biswanath.  Mrinal Dutta was arrested  along with other accused on 07.03.1994.  An application for test  identification parade for Aloke Nath was filed on 09.03.1994.  No such  prayer was made by the prosecution for  Mrinal Dutta. On 16.03.1994 he had been remanded to police custody.  A prayer  was made by the Investigating Officer for further police custody before the  ACM on 16.03.1994.  Consequently he had been remanded till 19.03.1994. Before we examine the legal implications in regard to recording the  judicial confession, we may notice the following facts.  He had been  produced before the Magistrate (PW-43) straightaway from police custody.    He was asked to be sent to judicial custody for self introspection.  He,  however, was taken out from Presidency Jail at 10.30 A.M..  on 21.03.1994.   Admittedly, he had been produced before the Magistrate at 1.00 p.m.   Albeit  a little later,  a complaint was made by Mrinal Dutta, that before he had been  produced before the Magistrate he was taken to the Alipore Police Station  and tortured.  It is true, as has been submitted by Mr. Ahmad, that although   he had named the Police Inspector who allegedly tortured him, as would  appear from his examination under Section 313 of the Code of Criminal  Procedure, but the said Police Inspector has not been cross-examined on the  said point, but the fact remains that the confession stood retracted and, thus,  we have no option but to consider the legal aspect thereof having regard to  the fact situation obtaining herein.  

       The court’s scrutiny in regard to the acceptability of a judicial  confession would not stop only because there was a failure on  the part of the  defence counsel to cross-examine the said witness, more so when the  offence is said to be a grave one.     

Constitutional Postulates and Retracted confession :

       Article 20(3) of the Constitution of India provides that no person  accused of any offence shall be compelled to be a witness against himself.   The right to remain silent is an extension of the rule of civil liberty enjoined  by our Constitution.            Considering the guarantee under Article 20 (3) and also humanizing  standards under Article 21 we need to tread cautiously while construing  retracted confession. Although such caution is subject to some exceptions  such as per se evidence of the motivating factors of retraction or retraction  based on extraneous circumstances.  

In this regard it is important to address the scope and ambit of Article  20(3) i.e. at which stage of criminal process the safeguard becomes  operative.      In Smt. Nandini Satpathy v. P.L. Dani and Another [AIR 1978  SC 1025], this Court stated the law thus :

"57. We hold that Section 161 enables the police to

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examine the accused during investigation. The  prohibitive sweep of Article 20(3) goes back to the stage  of police interrogation \027 not, as contended, commencing  in court only. In our judgment, the provisions of Article  20(3) and Section 161(1) substantially cover the same  area, so far as police investigations are concerned. The  ban on self-accusation and the right to silence, while one  investigation or trial is under way, goes beyond that case  and protects the accused in regard to other offences  pending or imminent, which may deter him from  voluntary disclosure of criminatory matter."

       In this context, it will be useful  to refer to the following passage from  the decision of this Court in  State (N.C.T. of Delhi) v. Navjot Sandhu @  Afsan Guru [(2005)11SCC 600]  :

"This Court rejected the contention advanced on behalf  of the State that the two provisions, namely, Article 20(3)  and Section 161, did not operate at the anterior stages  before the case came to Court and the incriminating  utterance of the accused, previously recorded, was  attempted to be introduced. Noting that the landmark  decision in Miranda v. Arizona [1966, 384 US 436] did  extend the embargo to police investigation also, the Court  observed that there was no warrant to truncate the  constitutional protection underlying Article 20(3). It was  held that even the investigation at the police level is  embraced by Article 20(3) and this is what precisely  Section 161 means."

[See also Directorate of Enforcement v. Deepak Mahajan and Another,  (1994)3 SCC 440], and Balkishan A. Devidayal v. State of Maharashtra,  (1980) 4 SCC 600].

       To withdraw from what has been said previously needs to be  interpreted in the vein of right to remain silent as an extension of this civil  liberty. The quality or merit of confession, in no uncertain terms, is in  voluntary narration by the accused. At the same time we are equally in know  of the troubled times the judiciary is plagued with. The issue of evidentiary  standards is a very delicate one and has a great bearing on the outcome of  cases. But be it as it may, basic tenets of criminal law can not be lost sight  of. In similar vein the law on retracted confession must be judged in the  context of each case.

Legislative paradigm on retracted confession : In this regard it is important to consider the retracted confession  within the legislative paradigm laid down under Sections 24  to 26 of the  Indian Evidence Act and Section 162(1) and Section 164 of the Code of  Criminal Procedure, 1973.  

Also it will be in the fitness of the case to appraise the value of  retracted confession for the co-accused under section 30 of The Indian  Evidence Act a little later.

Sections 24 to 30 deal with confession.  Section 24 speaks of the  effect of a confession made by an accused through inducement, threat or  promise proceeding from a ’person in authority’. Whereas section 25 and  section 26 deal with situations where such ’person in authority’ is police. It  is an institutionalized presumption against confession extracted by police or  in police custody. In that frame of reference, Section 24 is the genus and  sections 25 and 26 are its species. In other words,  section 25 and section 26  are simple corollaries flowing out of the axiomatic and generalized  proposition (confession caused by inducement where inducement proceeds  from a person in authority,  is bad in law) contained in section 24. They are  directed towards assessing the value of a confession made to a police officer

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or in police custody.  The policy underlying behind Sections 25 and 26 is to make it a  substantive rule of law that confessions whenever and wherever made to the  police, or while in the custody of the police unless made in the immediate  presence of a magistrate, shall be presumed to have been obtained under the  circumstances mentioned in Section 24 and, therefore, inadmissible, except  so far as is provided by Section 27 of the Act.

Section 164, however, makes the confession before a Magistrate  admissible in evidence.  The manner in which such confession is to be  recorded by the Magistrate is provided under Section 164 of the Code of  Criminal Procedure.  The said provision, inter alia, seeks to protect an  accused from making a confession, which may include a confession  before  a Magistrate,  still  as may be under influence, threat or promise from a  person in authority.  It takes into its embrace the right of an accused flowing  from Article 20(3) of the Constitution of India as also Article 21 thereof.    Although, Section 164 provides for safeguards, the same cannot be said to  be exhaustive in nature.  The Magistrate putting the questions to an accused  brought before him from police custody, should some time,  in our opinion,  be more intrusive than what is required in law. [See Babubhai Udesinh  Parmar v. State of Gujarat \026 2006 (12) SCALE 385].

In a case, where   confession is made in the presence of a Magistrate  conforming the requirements of Section 164, if it is retracted at a later stage,  the court in our opinion, should probe deeper into the matter.  Despite  procedural safeguards contained in the said provision, in our opinion, the  learned Magistrate should satisfy himself that whether the confession was of  voluntary nature.  It has to be appreciated that there can be times where  despite such procedural safeguards, confessions are made for unknown  reasons and in fact made out of fear of police.  

Judicial confession must be recorded in strict compliance of the  provisions of Section 164 of the Code of Criminal Procedure.  While doing  so, the court shall not go by the black letter of law as contained in the  aforementioned provision; but must make further probe so as to satisfy itself  that the confession is truly voluntary and had not been by reason of any  inducement, threat or torture.   

The fact that the accused was produced from the police custody is  accepted.  But it was considered in a routine manner.  The learned  Magistrate in his evidence could not even state as to whether the appellants  had any injury on his person or whether there had been any tainted marks  therefor.   

The courts while applying the law must give due regard to its past  experience.  The past experience of the courts as also the decisions rendered  by the superior courts should be taken as a wholesome guide. We must  remind ourselves that despite the fact that procedural safeguards contained  in Section 164 of the Cr. P.C. may be satisfied, but  the courts must look for  truthfulness and voluntariness thereof.   It must, however, be remembered  that it may be retracted subsequently.  The court must, thus, take adequate  precaution. Affirmative indication of external pressure will render the  retracted confession nugatory in effect. The court must play a proactive role  in unearthing objective evidence forming the backdrop of retraction and later  the examination of such evidence of retraction. However in cases where  none exists, the court must give the benefit of doubt to the accused. Where  there is no objective material available for verifying the conditions in which  the confession was retracted, the spirit of section 24 of the Evidence Act  (irrelevance of confession caused by inducement) may be extended to  retracted confession.  An inverse presumption must be drawn from absence  of materials.  

In a case of retracted confession, the courts while arriving at a finding  of guilt would not ordinarily rely solely thereupon and would look forward  for corroboration of material particulars. Such corroboration must not be

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referable in nature. Such corroboration must be independent and conclusive  in nature. Evidentiary value of retracted confession :         A retracted confession of a co-accused cannot be relied upon for the  purpose of finding corroboration for the retracted confession of an accused.   It was so held in  Bhuboni Sahu v. R. [AIR 1949 PC 257], stating :         "The court may take the confession  into  consideration and thereby no doubt, makes its evidence  on which the court may act; but the section does not say  that the confession is to amount to proof.  Clearly there  must be other evidence.  The confession is only one  element in the consideration of all the facts proved in the  case; it can be put into the scale and weighed with the  other evidence."

[See Hari Charan Kurmi and Jogia Hajam v. State of Bihar \026 (1964) 6 SCR  623]  However, we are not unmindful of the fact that in this country,  retractions are as plentiful as confessions.  In a case of retracted confession,  the courts should evidently be a little slow in accepting the confession,  although the accused may not be able to fully justify the reasons for his  retraction.    It is interesting to note that in R. v. Thompson, [1893, 2 QB 12, 18],  Cave, J. stated the law thus :

"I would add that for my part I always suspect these  confessions which are supposed to be the offspring of  penitence and remorse and which nevertheless are  repudiated by the prisoner at the trial.  It is remarkable  that it is of very rare occurrence for evidence of a  confession to be given when the proof of the prisoner’s  guilt is otherwise clear, and satisfactory, but when it is  not clear and satisfactory,  the prisoner is not  frequently  alleged to have been seized with a desire, born of  penitence and remorse, to supplement it with a  confession \026 a desire which vanishes as soon as he  appears in a court of justice."   

Straight J, observed in R v. Babulal, 6 A 509, 542, 543

"An endless source of anxiety and difficulty to those who  have to see that justice is properly administered\005I have  said, and repeat now, it is incredible that the  extraordinarily large number of confessions, which come  before us in the criminal cases disposed of by this court,  either in appeal or revision, should have been voluntarily  and freely made in every instance as represented\005the  retraction follows almost invariably as a matter of  course"                  [See Sarkar on Evidence, 15th Edn. \026 Volume 1 -  page 466]  

The value of a retracted confession is now well-known.  The court  must be satisfied that the confession at the first instance is true and  voluntary.  [See Subramania Goundan  v. The State of Madras   [AIR 1958  SC 66] and Pyare Lal Bhargava v. State of Rajasthan,  [AIR 1963 SC 1094].           Caution and prudence in accepting a retracted confession is an  ordinary rule. [See Puran v. The State of Punjab -AIR 1953 SC 459].   Although if a retracted confession is found to be corroborative in material  particulars, it may be the basis of conviction.  [Balbir Singh v. State of  Punjab - AIR 1957 SC 216].

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       We may notice that in 1950’s and 1960’s corroborative evidence in  "material particulars" was the rule.  [See Puran (supra), Balbir Singh (supra),  Nand Kumar and Others v. State of Rajasthan \026 1963 Crl. LJ 702].  A  distinctiveness was made in later years in favour of  "general corroboration"  or "broad corroboration". [See for General Corroboration - State of  Maharashtra v. Bharat Chaganlal Raghani and Others  [(2001) 9 SCC 1];  "General trend of Corroboration"  -   Jameel Ahmed and Another  v. State of  Rajasthan \026 [(2003) 9 SCC 673]; and "Broad Corroboration" - Parmananda  Pegu  v. State of Assam  [AIR 2004 SC 4197]   

       Whatever be the terminology used, one rule is almost certain that no  judgment of conviction shall be passed on an uncorroborated retracted  confession.  The court shall consider the materials on record objectively in  regard to the reasons for retraction.  It must arrive at a finding that the  confession was truthful and voluntary.  Merit of the confession being the  voluntariness and truthfulness, the same, in no circumstances, should be  compromised.  We are not oblivious of some of the decisions of this Court  which proceeded on the basis that conviction of an accused on the basis of a  retracted confession is permissible but only if it is found that retraction made  by the accused was wholly on a false premise.  [See  Balbir Singh (supra)].

       There cannot, however, be any doubt or dispute that although  retracted confession is admissible, the same should be looked with some  amount of suspicion  -  a stronger suspicion than that which  is attached to  the confession of an approver  who leads evidence to the court.          Why we should not rely on the confession :  Coming to the facts of this case, on 04.10.2002, the lawyer appearing  for Mrinal Dutta made a submission that an application had been filed  praying for calling of some records from the Presidency Jail.  No order had  been passed thereupon.  It was contended that he had been taken from Jail at  10.00 a.m..  The records were directed to be produced.  However from the  order sheet dated 14.11.2002 it appears that the said records had not been  produced.  On 17.01.2003 a prayer had again been made on behalf of Mrinal  Dutta that steps would be taken for production of the documents in terms of  order dated 04.10.2002.  The learned Judge  recorded :

"The order No.265 goes to show that the Court  passed order regarding production of  Jail Register of  Presidency Jail  dated 21.3.94.  The report of the  Superintendent, Presidency Correctional Home dated  14.11.02 shows that the same was not available.  It was  further stated in the said letter that if the said register is  available, the same will be sent to this Court at once. As the said Register has not been produced, the  Court is duty bound to take presumption that the said  Register could not be traced out. It should be stated here that the cease work was  withdrawn long ago and during this period, the defence  lawyer for accused Minal Dutta did not take any step to  compel the superintendent Presidency Correctional Home  to appear in person and to produce the document.  As  today is fixed for D.W. and as no petition has been filed  the case is closed, considering the fact that the case is  pending for trial since 1994."    

       The court, with respect, misdirected itself.  It had no such duty.  It was   in fact the other way found .  

       It is not in dispute that Mrinal Dutta had retracted from his confession.   The value of the retracted confession was required to be considered on the  accusation of the accused that the confession was not voluntary. In his  application retracting from his confession, it was alleged :

       "Respected Sir, my humble submission is that I am

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informing true facts of my case.  I have been implicated  in the murder of Biswanath Dutta and the fraud  committed.  I am not connected with these incidents and I  know nothing about these acts.  Police came to my house  on 7.3.94 to apprehend my brother-in-law Gobinda Roy.   Gobinda was at my house on the said date.  Police  apprehended and brought me and Gobinda Roy from my  house.  Thereafter implicated me in that murder and  fraud.  Then beat me up severely and told me to state  whatever they dictate and thereafter to accept the same.   Otherwise they would torture me and members of my  family continuously in various manners and would  implicate in other cases also.  They told me if you follow  our dictates we would save you.   They made me make a  confession as per their false statements before a  Respected Magistrate of Jorabagan Bankshall Court.         Out of the fear of Police torture I and members of  my family are on the brink of destruction.  My humble  appeal to you to kindly take necessary action to save me  and members of my family from destruction."     

       It is expected in a situation of this nature that the court will issue a suo  motu direction to the authority to produce the records.  There was   absolutely no reason as to why the records would not be produced by the  Presidency Jail’s authorities for a period of two months.  If  the said records  had not been produced, in our opinion, it was obligatory on the part of the  court to issue a suo motu notice.  The court was dealing with a serious  matter.  More than one life hinged on that valuable material.  If a public  authority does not produce a document despite being called upon to do so;  an adverse inference is to be drawn.  Converse is not the law.   It is true that sufficient time was given (two days) to Mrinal Dutta to  confirm his willingness to confess and finalize the contents of the  confession.  The reasons for which the confession had been retracted and the  subsequent events wherein the appellants intended to prove a certain state of  affairs, namely, although he was supposed to have been produced directly  from the jail to the concerned Magistrate but in fact he was  taken out of jail  2 = hours before the time fixed therefor, could be a pointer to the fact as to  whether the confession was a voluntary one.   It may be true that an application for adducing evidence had been filed  by the Appellants in terms of Section 311 of the Code of Criminal  Procedure, but the said evidence, if adduced would have tilted the balance   one way or the other so as to enable the court to come to the conclusion as to  whether the purported judicial confession made by Mrinal Dutta satisfies the  tests laid down by this Court in a large number of decisions.  There was no  reason for the court to draw an adverse inference that the records had been  destroyed.  No such inference could be drawn in law either in terms of  Section 114 of the Indian Evidence Act or any other law.  The period during  which such documents are preserved under the provisions of the jail manual  have not been referred to.  No evidence had been brought on record to show  that the documents had in fact been destroyed.  The least the jail authorities  could do was to produce the  destruction register.                  In the aforementioned backdrop, the court should give the benefit of  doubt to the accused instead of the prosecution.  The learned Trial Judge, in  our opinion, should not have closed the case.  He should have invoked his  jurisdiction under Section 311 of the Code of Criminal Procedure in the  interest of justice and instead of blaming the defence for non-examination of  the Superintendent of Presidency Jail, the court itself should have called  upon authorities to produce the document.  The presumption raised by the  court in this behalf is wholly misconceived.           Effect of a retracted confession :           We are not suggesting that the confession was not proved, but the  question is what would be the effect of a retracted confession.  It is now a

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well-settled principle of law that a retracted confession is a weak evidence.   The court while relying on such retracted confession must satisfy itself that  the same is truthful and trustworthy.   Evidences brought on records by way  of judicial confession which stood retracted should be substantially  corroborated by other independent and cogent evidences, which would lend  adequate assurance to the court that it may seek to rely thereupon.  [See  Paramananda Pegu  (supra)]  

       In Navjot Sandhu @ Afsan Guru (supra),  this Court observed :   

"32. As to what should be the legal approach of the court  called upon to convict a person primarily in the light of  the confession or a retracted confession has been  succinctly summarised in Bharat v. State of U.P.  Hidayatullah, C.J., speaking for a three-Judge Bench  observed thus: (SCC p.  953, para 7)

"Confessions can be acted upon if the court is satisfied  that they are voluntary and that they are true. The  voluntary nature of the confession depends upon whether  there was any threat, inducement or promise and its truth  is judged in the context of the entire prosecution case.  The confession must fit into the proved facts and not run  counter to them. When the voluntary character of the  confession and its truth are accepted, it is safe to rely on  it. Indeed a confession, if it is voluntary and true and not  made under any inducement or threat or promise, is the  most patent piece of evidence against the maker.  Retracted confession, however, stands on a slightly  different footing. As the Privy Council once stated, in  India it is the rule to find a confession and to find it  retracted later. A court may take into account the  retracted confession, but it must look for the reasons for  the making of the confession as well as for its retraction,  and must weigh the two to determine whether the  retraction affects the voluntary nature of the confession  or not. If the court is satisfied that it was retracted  because of an afterthought or advice, the retraction may  not weigh with the court if the general facts proved in the  case and the tenor of the confession as made and the  circumstances of its making and withdrawal warrant its  user. All the same, the courts do not act upon the  retracted confession without finding assurance from  some other sources as to the guilt of the accused.  Therefore, it can be stated that a true confession made  voluntarily may be acted upon with slight evidence to  corroborate it, but a retracted confession requires the  general assurance that the retraction was an afterthought  and that the earlier statement was true\005"

[See also Puran (supra), Bharat v. State of UP (1971) 3 SCC 950, Kora  Ghasi v. State (1983) 2 SCC 251, Preetam v. State of MP (1996) 10 SCC  432, Bhagwan Singh v. State of MP (2003) 3 SCC 21].

       Mr. Altaf Ahmad, relied upon a decision of this Court in Sidharth and  Others v. State of Bihar [(2005) 12 SCC 545] wherein having regard to the  extensive evidences produced by the prosecution, it was held that the same  lent corroboration to the confession made by the accused.  In that case the  circumstances had been independent  de’hors the confession.  It was opined :

"16. The confession made by the appellant Arnit  Das is voluntary and is fully corroborated by the above  items of evidence. The Sessions Judge was perfectly  justified in relying on the confession made by the

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appellant Arnit Das."

       Reliance has also been placed by Mr. Ahmad on State of Tamil Nadu  v. Kutty @ Lakshmi Narsimhan [(2001) 6 SCC 550]. Therein materials were  brought on records to lend assurance to the court about the truthfulness of  the confession made.  There had been several independent circumstances  which had lent assurance thereto, although the same had been retracted.

APPRECIATION OF EVIDENCE :

       In the instant case, it is an admitted position that on 19th March, 1994,  Mrinal Dutta was taken to the Magistrate (PW-43) straight from the Police  custody.  

       Even though the Magistrate had sent the accused to jail custody on  19th March so that he could further reflect on the matter, when he was  brought to the Magistrate again on 21.03.1994 he was, as subsequently  asserted by Mrinal Dutta, first taken to Alipore Police Station and was  threatended and tortured and was also tutored as to what he should tell the   Magistrate in his confession.  PW-48 the I.O. was cross examined on this  point and suggestions were also given to him which he denied.

       Mrinal Dutta in his retraction made from jail on 16.06.1994  emphatically stated that he was taken to Alipore police station before being  brought to the Magistrate on 21.03.1994.  He maintained that stand in his  examination under Section 313 Cr.P.C.   Strangely enough prosecution did  not make any attempt to disprove this allegation.                  In this case, as we have noticed hereinbefore, there is no independent  evidence adduced on behalf of the prosecution to prove conspiracy with  regard to cheating and forgery of documents and impersonation.  They had  been sought to be proved by the supplementary circumstantial evidences.         In this case, the courts below have failed to notice  the legality  of the  judicial confession.  There did not exist any evidence against Mrinal Dutta.   The courts apparently considered the said confessions of Aloke Nath and  then started connecting links therefrom and again came back to the  confession for completing the chain.  Confession must be considered so as to  buttress other evidence and not the vice-versa.  In other words, in the instant  case, the courts started to consider the matter from the angle of confession  then picked up facts from the deposition of the witnesses and again came  back to the confession.   The evidences merely established to defraud the intending purchasers.   At that point of time, Aloke Nath thought it fit to do away with Biswanath,  as he was proved to be an obstruction in his attempt to dispose of the  property.  The Appellants might or might not have joined hands with him,  but unless there exist sufficient and cogent reasons to link them with the  alleged crime committed by Aloke Nath, it may not be said that they are also  guilty thereof.   

Effect of retracted confession of Mrinal Dutta on Appellants other than  Aloke Nath : Furthermore, so far as the accusation against Babu Roy and Mamata  Dutta are concerned, the only evidence against them was the judicial  confession of Mrinal Dutta.  The  same was admissible against them only  under Section 30 of the Indian Evidence Act.   

Section 30:   It is not in dispute that apart from general evidence in regard to  commission of forgery etc., only evidence of involvement of Mamata and  Babu Roy is the judicial confession made by Mrinal Dutta.  The extra  judicial confession made by Aloke Nath before the prosecution witnesses, as  noticed hereinbefore, does not implicate these Appellants. Only in his  judicial confession, Mrinal Dutta has assigned roles to these accused persons  as having common intention to commit the offence of murder of Biswanath  with Aloke Nath.

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Judicial confession is admissible in evidence against the maker  thereof under Section 26 of the Indian Evidence Act; but against the co- accused, Section 30 will be applicable.

Section 30 of the Indian Evidence Act reads thus :

       "30.  Consideration of proved confession affecting  person making it and others jointly under trial for same  offence. \026 When  more persons than one are being tried  jointly for the same offence, and a confession made by  one of such persons affecting himself and some other of  such persons is proved, the Court may take into  consideration such confession as against such other  person as well as against the person who makes such  confession."   

The expression ’the court may take into consideration such  confession’ is significant.  It signifies that such confession by the maker as  against the co-accused himself should be treated as a piece of corroborative  evidence. In absence of any substantive evidence, no judgment of conviction  can be recorded only on the basis of confession of a co-accused, be it extra  judicial confession or a judicial confession and least of all on the basis of  retracted confession.

What is furthermore required to be considered is that if a retracted  confession itself is weak evidence, the question of conviction of a co- accused on the basis thereof would not arise.   

The question has been considered in State of M.P. through CBI and  Others  v. Paltan Mallah and Others [(2005) 3 SCC 169], Navjot Sandhu  (supra)  and   Sidharth (supra).

In  Sidhartha (supra), this Court held :

"19. It is true that the confession made by a co- accused shall not be the sole basis for a conviction. This  Court in Kashmira Singh v. State of M.P. held that the  confession of an accused person is not evidence in the  ordinary sense of the term as defined in Section 3. It  cannot be made the foundation of a conviction and can  only be used in support of other evidence. The proper  way is, first, to marshal the evidence against the accused  excluding the confession altogether from consideration  and see whether, if it is believed, a conviction could  safely be based on it. If it is capable of belief  independently of the confession, then of course it is not  necessary to call the confession in aid. But cases may  arise where the judge is not prepared to act on the other  evidence as it stands, even though, if believed, it would  be sufficient to sustain a conviction. In such an event the  judge may call in aid the confession and use it to lend  assurance to the other evidence and thus fortify himself  in believing what without the aid of the confession he  would not be prepared to accept."

In Ram Parkash  v. The State of Punjab  [1959 SCR 1219],  it was  held :

"That a voluntary and true confession made by an  accused though it was subsequently retracted by him, can  be taken  into consideration against a co-accused by  virtue of s. 30 of the Indian Evidence Act, but as a matter  of prudence and practice the court should not act upon it  to sustain a conviction of the co-accused without full and

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strong corroboration in material particulars both as to the  crime and as to his connection with that crime.

The amount of credibility to be attached to a  retracted confession would depend upon the  circumstances of each particular case."          

It was further opined :          "On the evidence in the case the confession of P  was voluntary and true and was strongly corroborated in  material particulars both concerning the general story  told in the confession concerning the crime and the  appellant’s connection with crime."

[See Navjot Sandhu alias Afsan Guru (supra) and Jaswant Gir v. State of  Punjab (2005) 12 SCC 438].

       We, therefore, express our inability, with respect, to agree with this  part of the judgment of the learned judge.    

DEATH SENTENCE  :                     Is this case an instance of ’rarest of rare cases’ meriting imposition of  capital sentence is now the question?  What are the parameters,  are there  any ?  Several factors are relevant.  One of them being a long lapse of time  [See Paltan Mallah (supra)]

In Bachan Singh v. State of Punjab [(1980 2 SCC 684 = (AIR 1980  SCC 898], a Constitution Bench dealt with the validity of death sentence and  while doing so the rule of rarest of rare cases was laid down.  It was  reiterated in Machhi Singh and Others v. State of Punjab [(1983) 3 SCC  470].  The illustrative circumstances which were laid down in the  aforementioned cases are :  

1.       When the murder is committed in an extremely brutal, grotesque,  diabolical, revolting, or dastardly manner so as to arouse intense and  extreme indignation of the community.

2.       When the murder is committed for a motive which evinces total  depravity and meanness; e.g. murder by hired assassin for money or reward;  or cold-blooded murder for gains of a person vis-‘-vis whom the murderer is  in a dominating position or in a position of trust; or murder is committed in  the course of betrayal of the motherland.

3.      When murder of a member of a Scheduled Caste or minority  community, etc. is committed not for personal reasons but in circumstances  which arouse social wrath; or in cases of "bride-burning" or "dowry deaths"  or when murder is committed in order to remarry for the sake of extracting  dowry once again or to marry another woman on account of infatuation.

4.      When the crime is enormous in proportion. For instance when  multiple murders, say of all or almost all the members of a family or a large  number of persons of a particular caste, community, or locality, are  committed.

5.       When the victim of murder is an innocent child, or a helpless woman  or old or infirm person or a person vis-‘-vis whom the murderer is in a  dominating position, or a public figure generally loved and respected by the  community.

We are, however, not oblivious of the fact that the court also should  not remain unmindful to protect the injured and with that view of the matter  recommend award of proper sentence having regard to the nature of offence.   [See Sevaka Perumal v. State of Tamil Nadu - AIR 1991 SC 1463]

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In Devender Pal Singh v. State of NCT of Delhi [AIR 2002 SC 1661]  the death sentence was upheld by a majority of 2:1 notwithstanding the  dissenting view holding the accused to be innocent.

[See also Dhananjoy Chatterjee @ Dhana v. State of West Bengal & Others   (2004) 9 SCC 759].

       We may notice that in Saibanna v. State of Karnataka [JT 2005 (5) SC  564 = (2005) 4 SCC 165], this Court imposed death punishment in a case  where the accused committed a murder while undergoing life imprisonment.   

Although we  are not concerned with such a case, the view taken  therein is doubtful.

We may also notice that in Ram Anup Singh and Others v. State of  Bihar  [(2002) 6 SCC 686] and Bachittar Singh and Another v. State of  Punjab [(2002) 8 SCC 125], this Court did not impose a death penalty  although the case involved murder of a brother by another brother.   

It is not necessary for us to notice a large number of decisions which  are available in the reports, except a few recent decisions.

In Surendra Pal Shivbalakpal v. State of Gujarat  [(2005) 3 SCC 127],  death sentence was not imposed in a case where the offence involved was  rape with murder of a girl, stating :  

"13. The next question that arises for consideration is  whether this is a "rarest of rare case"; we do not think  that this is a "rarest of rare case" in which death penalty  should be imposed on the appellant. The appellant was  aged 36 years at the time of the occurrence and there is  no evidence that the appellant had been involved in any  other criminal case previously and the appellant was a  migrant labourer from U.P. and was living in  impecunious circumstances and it cannot be said that he  would be a menace to society in future and no materials  are placed before us to draw such a conclusion. We do  not think that the death penalty was warranted in this  case. We confirm conviction of the appellant on all the  counts, but the sentence of death penalty imposed on him  for the offence under Section 302 IPC is commuted to  life imprisonment."

Therein it was also noticed that the accused was prone to do such  crime.

In State of Maharashtra v. Man Singh [(2005) 3 SCC 131], the court  refrained itself from awarding the capital punishment, although the offence  involved was rape with murder.

In Rama Subramanian v. State of Kerala [AIR 2006 SC 639], this  Court did not award a death penalty where a lady, together with her three  children, was killed, despite arriving at a finding that the evidence adduced  by the prosecution is very clear and convincing  to prove the guilt of the  Appellant, stating :  

"\005It is true that the crime committed by the appellant is  cruel and dastardly in nature and the appellant deserves  no mercy.  However, it may be noted that it is not known  how and under what circumstances the incident had taken  place on 9.8.1999.  the appellant was annoyed by the fact  that his services were terminated without being paid any  compensation despite serving his employer for quite a  long period.   Taking the overall facts into consideration,  we do not find that this is one of the rarest of the rare

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cases where death sentence could be the only  punishment\005."      

Apart from Sidharth (supra), our attention has also been drawn to a  judgment of this Court in State of Rajasthan v. Kheraj Ram (2003) 8 SCC  224] by Mr. Ahmad, wherein this Court, while awarding death punishment,   held : "35. A convict hovers between life and death when  the question of gravity of the offence and award of  adequate sentence comes up for consideration. Mankind  has shifted from the state of nature towards a civilized  society and it is no longer the physical opinion of the  majority that takes away the liberty of a citizen by  convicting him and making him suffer a sentence of  imprisonment. Award of punishment following  conviction at a trial in a system wedded to the rule of law  is the outcome of cool deliberation in the courtroom after  adequate hearing is afforded to the parties, accusations  are brought against the accused, the prosecuted is given  an opportunity of meeting the accusations by establishing  his innocence. It is the outcome of cool deliberation and  the screening of the material by the informed man i.e. the  Judge that leads to determination of the lis. 36. The principle of proportion between crime and  punishment is a principle of just deserts that serves as the  foundation of every criminal sentence that is justifiable.  As a principle of criminal justice it is hardly less familiar  or less important than the principle that only the guilty  ought to be punished. Indeed, the requirement that  punishment need not be disproportionately great, which  is a corollary of just deserts, is dictated by the same  principle that does not allow punishment of the innocent,  for any punishment in excess of what is deserved for the  criminal conduct is punishment without guilt. 37. The criminal law adheres in general to the  principle of proportionality in prescribing liability  according to the culpability of each kind of criminal  conduct. It ordinarily allows some significant discretion  to the Judge in arriving at a sentence in each case,  presumably, to permit sentences that reflect more subtle  considerations of culpability that are raised by the special  facts of each case. Judges in essence affirm that  punishment ought always to fit the crime; yet in practice  sentences are determined largely by other considerations.  Sometimes it is the correctional needs of the perpetrator  that are offered to justify a sentence. Sometimes the  desirability of keeping him out of circulation, and  sometimes even the terrific results of his crime.  Inevitably, these considerations cause a departure from  just deserts as the basis of punishment and create cases of  apparent injustice that are serious and widespread."

In that case, death penalty was imposed but our endeavour here is to  see that courts in the matter of sentencing act differently although the fact  situation may appear to be somewhat similar.     

We would,  however, notice that in State of U.P. v. Satish [(2005) 3  SCC 114], the same learned Judge took a similar view in a case where the  High Court reversed the judgment of conviction and imposition of death  sentence by the Trial Judge for commission of an offence of rape and murder  of a girl aged 6 years, saying the earlier view once again.                    In Navjot Sandhu @ Afsan Guru (supra), nine persons including eight  security personnel and one gardener succumbed to the bullets of the

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terrorists and 16 persons including 13 security men received injuries as a  result of storming of the Parliament by 5 terrorists.   This Court  upholding  the decision of the High Court  to award death penalty,  observed :

       "The very idea of attacking and overpowering a  sovereign democratic institution by using powerful arms  and explosives and imperiling the safety of a multitude of  peoples’ representatives, constitutional functionaries and  officials of Government of India and engaging into a  combat with security forces is a terrorist act of gravest  severity. It is a classic example of rarest of rare case."

       In  Holiram Bordoloi  v. State of Assam, [(2005) 3 SCC 793]   appellant along with 17 others was convicted for murdering 4 persons by  burning them alive in a hut.  Death penalty was imposed on the appellant.  This Court embarked on a discussion as to the aggravating circumstances  and mitigating circumstances, observing:  

"Pre-planned, calculated, cold-blooded murder has  always been regarded as one of an aggravated kind." A  "murder is "diabolically conceived and cruelly  executed", it would justify the imposition of the death  penalty on the murderer\005. In many cases, the extremely  cruel or beastly manner of the commission of murder is  itself a demonstrated index of the depraved character of  the perpetrator. That is why; it is not desirable to consider  the circumstances of the crime and the circumstances of  the criminal in two separate watertight compartments."  

       This Court also affirming the death penalty, held :  

       "Even when questioned under Section 235 (2) of  Criminal Procedure Code, the accused stated that he had  nothing to say on the point of sentence. The fact that the  appellant remained silent would show that he has no  repentance for the ghastly act he committed."

       In  Pratap Singh v. State of Jharkhand and Anr. [(2005) 3 SCC 551], a  Trade Union leader was shot dead by the appellant as a result of a labour  dispute.  This Court  observed that the incident leading to these appeals had  taken place as early as 1991. As there is a long lapse of time, the court did  not think that the sentence of death imposed by the Sessions Court is  justified in the circumstances.

       In Amrit Singh v. State of Punjab [2006 (11) SCALE 309], this Court   while taking account of the available evidence observed that it was possible  for the death to have occurred because of excessive bleeding and not by  strangulation as the Trial Court and High Court held.  This Court also noted  that there were no eye-witnesses that actually saw the commission of the  offence and it was only on the basis of circumstantial evidence, that he was  convicted.   This Court noted that although the crime was brutal, it could not  be said it was the rarest of the rare case. This Court observed :

"\005He had no pre-meditation for commission of the  offence. The offence may look heinous, but under no  circumstances, it can be said to be a rarest of rare  cases."

       Hence the sentence was commuted to one for life.                          In Major Singh and Anr. v. State of Punjab (2006 (10) SCALE  354]  death Sentence was awarded to the appellant by the High Court. Appellant

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therein murdered the deceased on the suspicion that the deceased had  murdered his wife who happened to be the sister of the appellant.  It was  observed :

"\005considering the fact that there was probably some  enmity due to suspicion about Sukhwinder Kaur’s death  two years after her marriage to Kashmir Singh [deceased]  which could have a motive for the crime, we reduce the  sentence awarded to both the accused from death  sentence to life sentence."

       However, we may also notice that  recently two ladies have been  awarded death penalty where the accused were systematically killing  children in Renuka Bai @ Rinku @ Ratan & Anr. v. State of Maharashtra  [(2006) 7 SCC 442 : 2006 ( (8) SCALE  604], stating  :

       "24. The appellants have been awarded capital  punishment for committing these murders and their  sentence was confirmed by the High Court. Going by the  details of the case, we find no mitigating circumstances  in favour of the appellant, except for the fact that they are  women. Further, the nature of the crime and the  systematic way in which each child was kidnapped and  killed amply demonstrates the depravity of the mind of  the appellants. These appellants indulged in criminal  activities for a very long period and continued it till they  were caught by the police. They very cleverly executed  their plans of kidnapping the children and the moment  they were no longer useful, they killed them and threw  the dead body at some deserted place. The appellants had  been a menace to the society and the people in the  locality were completely horrified and they could not  send their children even to schools. The appellants had  not been committing these crimes under any compulsion  but they took it very casually and killed all these  children, least bothering about their lives or agony of  their parents. 25. We have carefully considered the whole aspects of  the case and are also alive to the new trends in the  sentencing system in criminology. We do not think that  these appellants are likely to be reformed\005"                                         [Emphasis supplied]

       In Gurmeet Singh v. State of Uttar Pradesh [(2005) 12 SCC 107]  appellant and his companion Lakha Singh (who died during the course of  trial proceedings) committed the murder of thirteen members of his own  family. This Court observed :  "All the victims were closely related to the appellant and  they were killed in the most dastardly manner. Most of  the victims were sleeping when they were attacked. The  appellant did not spare even the small kids with whom he  had apparently no enmity. The appellant did not have  even a grain of mercy or human kindness in his heart.  Considering all these aspects, we do not think that this is  a fit case where the death penalty is to be commuted to  life imprisonment."

It is evident that different Benches had taken different views in the  matter.

We must remind ourselves that there has been a growing demand in  the international fora that death penalty should be abolished. [See Second  Optional Protocol to the International Covenants on Civil and Political  Rights and the Protocol to the American Constitution on Human Rights to

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abolish death penalty].  Pursuant to or in furtherance of the pressure  exhorted by various international NGOs, several countries have abolished  death penalty. The superior courts of several countries have been  considering the said demand keeping in view the international covenants,  conventions and protocol.   

       In 2002, the United States Supreme Court held in Atkins v. Virginia,  [536 U.S. 304 (2002)] that it is unconstitutional to execute defendants with  mental retardation. The U.S. Supreme Court ruled 6-3 that executions of  mentally retarded criminals are "cruel and unusual punishment," violating  the Eighth Amendment to the Constitution.  The court held :  

"We are not persuaded that the execution of mentally  retarded criminals will measurably advance the deterrent  or the retributive purpose of the death penalty."

       We may furthermore notice that the Privy Council recently in Reyes  v. R [(2002) UKPC 11 : 12 BHRC 219], upon noticing the decision of the  Supreme Court in Mithu v. State of Punjab, [1983] 2 SCR 690, observed  :  

       "In Mithu v State of Punjab [(1983) 2 SCR 690]  the Supreme Court of India considered a provision of the  Indian Criminal Code which required sentence of death  to be passed on a defendant convicted of a murder  committed while the offender was under sentence of  imprisonment for life. The court addressed its attention to  article 21 of the Indian constitution, which protects the  right to life. Certain observations made by Chandrachud  CJ, at pp. 704, 707 and 713 are relevant to the present  discussion:  

"But, apart from that, a provision of law which  deprives the court of the use of its wise and  beneficent discretion in a matter of life and death,  without regard to the circumstances in which the  offence was committed and, therefore, without  regard to the gravity of the offence, cannot but be  regarded as harsh, unjust and unfair ... Thus, there  is no justification for prescribing a mandatory  sentence of death for the offence of murder  committed inside or outside the prison by a person  who is under the sentence of life imprisonment. A  standardized mandatory sentence, of that too in the  form of a sentence of death, fails to take into  account the facts and circumstances of each  particular case."

[See also  Hughes, R v (Saint Lucia) [2002] UKPC 12]         In the case of Roper v. Simmons, [543 U.S. 551 (2005)], at age 17,  respondent planned and committed a capital murder. After he had turned 18,  he was sentenced to death. His direct appeal and subsequent petitions for  state and federal postconviction relief were rejected. The court held that the  Eighth and Fourteenth Amendments forbid imposition of the death penalty  on offenders who were under the age of 18 when their crimes were  committed.         The court observed that: "The overwhelming weight of international opinion  against the juvenile death penalty is not controlling here,  but provides respected and significant confirmation for  the Court’s determination that the penalty is  disproportionate punishment for offenders under 18. The  United States is the only country in the world that  continues to give official sanction to the juvenile penalty.  It does not lessen fidelity to the Constitution or pride in  its origins to acknowledge that the express affirmation of

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certain fundamental rights by other nations and peoples  underscores the centrality of those same rights within our  own heritage of freedom."

There are some precedents of this Court e.g. Sahdeo and Others etc.   v. State of U.P. [(2004) 10 SCC 682- Para 9] and Sheikh Ishaqe and Others  v. State of Bihar \026 (1995) 3 SCC 392],  which are authorities for the  proposition that if the offence is proved by circumstantial evidence  ordinarily death penalty should not be awarded.  We think, we should follow  the said precedents instead and, thus,  in place of awarding the death penalty,  impose the sentence of rigorous imprisonment for life as against Aloke Nath.  Furthermore we do not find any special reason for awarding death penalty  which is imperative.   

In   Kishori  v. State  of Delhi  [(1999) 1 SCC 148], this Court  observed : "12. It is no doubt true that the high ideals of the  Constitution have to be borne in mind, but when normal  life breaks down and groups of people go berserk losing  balance of mind, the rationale that the ideals of the  Constitution should be upheld or followed, may not  appeal to them in such circumstances, nor can we expect  such loose heterogeneous group of persons like a mob to  be alive to such high ideals. Therefore, to import the  ideas of idealism to a mob in such a situation may not be  realistic. It is no doubt true that courts must be alive and  in tune with the notions prevalent in the society and  punishment imposed upon an accused must be  commensurate with the heinousness of the crime. We  have elaborated earlier in the course of our judgment as  to how mob psychology works and it is very difficult to  gauge or assess what the notions of society are in a given  situation. There may be one section of society which may  cry for a very deterrent sentence while another section of  society may exhort upon the court to be lenient in the  matter. To gauge such notions is to rely upon highly  slippery imponderables and, in this case, we cannot be  definite about the views of society."

[See also Balraj v. State of U.P. \026 (1994) 4 SCC 29; and Jashubha  Bharatsing Gohil and Others  - (1994) 4 SCC 353]  

Sentencing indisputably is a part of criminal jurisprudence. More  importantly, in death penalty references sentencing issues requires serious  deliberation. Cases of this nature warrant objective evaluation of indicia and  legal thresholds.  

In Union of India (UOI) and Ors. v. Devendra Rai [(2006) 2 SCC  243] accused was awarded death sentence for having caused homicidal death  of two army personnel and for having caused grievous injuries with the  intent of causing murder of two others, in a court martial. The High Court  upheld death penalty awarded.  This Court, however,  noticed :

"8. What is culled put from the decisions noted  above is that while deciding the question as to whether  the extreme penalty of death sentence is to be awarded, a  balance sheet of aggravating and mitigating  circumstances has to be drawn up.

9. In the instant case, the High Court has not  attempted to do that exercise and has come to an abrupt  conclusion about the case being not covered by the rarest  of rare category. That is clearly contrary to the principles  set out by this Court in the decisions noted above. We  deem it appropriate to remit the matter to the High Court

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to consider the matter afresh and take the decision as to  the appropriate sentence. The exercise has only to be  limited to that aspect alone as the High Court itself has in  the impugned judgment found that the conviction was  well merited."

When a statute provides for death penalty, so long as the same is not  ultra vires, application thereof cannot be altogether eliminated.  But keeping  in view the decision of the Constitution Bench of this Court, the jurisdiction  of this Court in this behalf is limited.  Death penalty can  be awarded only if  in the opinion of the court, the case answers the description of rarest of rare  cases.  What would constitute a rarest of rare cases must be determined in  the fact situation obtaining in each case.  We have also noticed hereinbefore  that different criteria have been adopted by different benches of this Court,   although the offences are similar in nature.  Because the case involved  offences under the same provision, the same by itself may not be a ground to  lay down any uniform criteria for awarding death penalty or a lesser penalty  as several factors therefor are required to be taken into consideration.  No  sentencing policy in clear cut terms has been evolved by the Supreme Court.  What should we do ?   

Does fact of this case make out the case to be one of rarest of rare  cases?  We are of the opinion that it does not.  The manner of commission of  offence may be gruesome.  Biswanath was killed while he was in deep  slumber, but the method applied cannot be said to be cruel.  The reason for  commission of the murder is greed of money on the part of  Aloke Nath  which evidently arose out the result of his bad habits.  We have no doubt in  our mind that he was pushed back to such a situation  where he thought that  he had no other option but to kill his brother.  The prosecution has not  brought out any material to show that Aloke Nath had not been maintaining  good relation with Biswanath.  There might have difference of opinion  between the brothers in regard to the question of sale of house, but we have  nothing before us to say one way or the other in this behalf.  Aloke Nath was  in need of money; Biswanath, an employee of a bank and being a bachelor  probably did not require the same.  He might have other idea e.g. he did not  want to loose his place of abode.  Aloke Nath had many vices, whereas  Biswanath did not have any.  But they had been living in the same premises  for a long time.  Both of them have been looking after their parents.  In fact,  only it was the other brothers, namely, Amar Nath and Samar Nath had filed  a suit against their mother as well as Aloke Nath and Biswanath,   apprehending that their mother would bequeath the property in their favour,  and, thus, excluding  them from inheriting the same.  

We in the facts and circumstances of this case are also of the opinion  that the prosecution having been failed to prove the case of conspiracy  against  Appellant herein, the case cannot be said to be one constituting  rarest of rare cases.

CONCLUSION  :          For the reasons aforementioned, Criminal Appeal No. 867-868 of  2005, as far as Shib Shankar Roy @ Babu Roy and Mamta Dutta are  concerned, and Crl.  Appeal No. 875 of 2005 preferred by Mrinal Dutta,  are  allowed, and the judgment of conviction and sentence passed against them is  set aside.  They may forthwith be released unless wanted in connection with  any other case. Criminal Appeal No.867-68 of 2005,  as far as Aloke Nath is  concerned,  is allowed in part and to the extent that the death penalty  imposed upon him is commuted to imprisonment for life. Other part of the  sentences is also upheld.