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CASE NO.: Appeal (crl.)  453 of 2006

PETITIONER: Bishnu Prasad Sinha & Anr

RESPONDENT: State of Assam

DATE OF JUDGMENT: 16/01/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       Appellants were charged with and convicted for commission of  offences under Sections 376(2)(g), 302 and 201 read with Section 34 of the  Indian Penal Code, 1860 for rape and murder of one Barnali Deb @ Poppy  (the deceased), a 7-8 year old girl.  She was travelling with her parents \026  Bishnu Deb (father-P.W.23), Anima Deb (mother- P.W.22) and younger  brother in a private transport service known as Net Work Travels from  Dharmanagar (Tripura).  They were on their way to Dimapur in the State of  Nagaland.  They reached Net Work Travels’ Complex at Paltan Bazar,  Guwahati at around 10.30 p.m. on 12.7.2002.  There was no connecting bus  to Dimapur at that time.  They were advised to stay over for the night at  Guwahati.  Appellant No.1 was a night chawkidar of the waiting room of the  said Net Work Travels.  He represented that they could stay there for the  night and therefore should not have any apprehension in regard to their  safety.  Their luggage was carried by the appellant No.1 to the waiting room.   The waiting room had two openings.  It was covered by grills.  Only the  front gate was open, which was kept under lock and key, the key whereof  was with the appellant No.1.     

       The family of P.W.23 went out for dinner and came back to the said  waiting room.  He and both his children slept.  Anima Deb (P.W.22), mother  of the deceased, however, kept on sitting.  Appellant No.1 insisted on her  repeatedly that she should go to sleep stating that as the waiting room would  be locked, there was nothing for her to worry about.  As she had not been  sleeping, the appellant No.1, allegedly, scolded her to do so.  At that time, a  bus bearing No.AS-25-C-1476 arrived at the said bus stop.  Putul Bora -  Appellant No.2 was the ’handiman’ of the said bus.  While the Manager,  Driver and the Conductor slept in the said bus, he did not.  He was seen  talking with the appellant No.1.

       Anima Deb-P.W.22 slept for a while.  As her son had cried out, she  woke up at about 3 p.m.  She did not find Barnali.  A hue and cry was raised  by her.  Being attracted by her alarm, Bishnu Deb-P.W.23 also woke up.   They requested the appellant No.1 to open the gates of the waiting room.  He  showed his reluctance at the first instance.  He was thereafter told about the  missing of the girl.  On being so informed, he opined that she might be  somewhere else within the room.  A search was carried out in the three  buses, which were at the bus stop belonging to the travel agency.  Near- about places as also the railway station were searched.  The bathroom  situated in the said premises was also searched.   

       Shri Kapil Kumar Paul-P.W.2, the Cashier of the Net Work Travels  was informed about the missing of Barnali Deb.  As the girl could not be  found despite vigorous search, Bishnu Deb, the father of the girl was advised

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to inform the police.  A missing entry was lodged before the Officer-in- Charge of Paltan Bazar Police Station.  At about 8.30 a.m. on 14.7.2002, a  complaint was made that the flush in the toilet was not working.  P.W.7- Amar Deep Basfore (sweeper) was asked by P.W.2-Shri Kapil Kumar Paul  to find out the reason therefor.  He later on opened the septic tank and saw  the head of a small child.  He immediately reported the matter to P.W.1-Shri  Bidhu Kinkar Goswami as well as P.W.2-Shri Kapil Kumar Paul.   

       A First Information Report was lodged thereafter by Shri Bidhu  Kinkar Goswami, the Manager of Net Work Travels. In the said First  Information Report, apart from the appellant No.1, suspicion was raised  about the involvement of driver-Krishna Hazarika (P.W.26), conductor- Rama Hazarika (P.W.25) and the handiman-Putul Bora (Appellant No.2  herein) of the bus bearing No.AS-25-C-1476.  The said bus had already left  for its destination at about 6.30 in the morning.  Even prior thereto, P.W.2  was persuaded that the said bus be permitted to leave early for Jorhat, which  was declined.   

       Pursuant to the said First Information Report, a case under Sections  376(2)(g) and 302 read with Section 34 of the Indian Penal Code, 1860 was  registered.  A Magistrate was called.  An inquest of the dead body was  made.  The said bus was intercepted and the driver-P.W.26, conductor- P.W.25 and Appellant No.2-Putul Bora were arrested.  They were brought to  the police station.         During the course of investigation, the appellant No.1 made a  confessional statement before the Magistrate under Section 164 of the Code  of Criminal Procedure, 1973 (’the Code’ for short).  He gave a vivid  description as to how the offence was committed by him and the appellant  No.2.

       On completion of investigation, a charge-sheet was filed against the  appellants.  They were convicted by the learned Sessions Judge, Kamrup and  sentenced to death.  An appeal preferred by them, by reason of the impugned  judgment, has been dismissed by the High Court.

       The appellants are, thus before us.

       At our request, Ms. Vibha Datta Makhija, learned counsel assisted us  as Amicus Curiae in the matter.

       Evidently, there was no eye-witness to the occurrence in this case.   Nobody had seen the appellants lifting the girl, committing rape and  murdering her.  The entire prosecution case is based on circumstantial  evidences.  The circumstances, which found favour with the learned  Sessions Judge as also the High Court, are :-

As against Appellant No.1 :

       i)      The confession of the appellant No.1 recorded by Smt.  Nirupama Rajkumari, Judicial Magistrate, 1st Class at Guwahati (P.W.8).

       ii)     Appellant No.1 was the night chawkidar of the Net Work  Travel Agency and the parents of the deceased girl along with their children  were persuaded to stay at the waiting room in the night.

       iii)    P.Ws. 22 and 23 (mother and father of the deceased) were  prevailed upon by the appellant No.1 to spend the night in the waiting room.   He had also carried their luggage assuring them full security and safety.                    iv)     The key of the waiting room was with him.  Appellant No.1  alone, thus, had the access to the waiting room.  He only had access to the  entire premises.

       v)      P.W.22-Anima Deb saw both the appellants held discussion in

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suspicious circumstances.

       vi)     Despite the information that Barnali was missing, the appellant  No.1 showed his reluctance to open the door.  On the contrary, P.Ws.22 and  23 were told that she might be somewhere else in the room.         vii)    The evidences brought on records go to show that the appellant  No.1 had a nefarious plan.   

       viii)   A black coloured half pant belonging to the appellant No.1 was  seized by the police (Exhibit 3).   

       ix)     No explanation was offered by him as to how the said half pant  could be found there.  It was admitted it belonged to him.

As against Appellant No.2 :

       i)      He was the handiman of the bus bearing No.AS-25-C-1476.

       ii)     The evidences of P.Ws. 22, 23 and 26 clearly point out that he  held some discussions with the appellant No.1.

       iii)    Although, he had made preparations to sleep in the bus, in  which he was travelling, but, in fact, slept in different bus bearing No.AS-1- G-5990.  No satisfactory explanation was offered by him to a question put in  that behalf by P.W.4-Shri Jams Brown, conductor of said bus.  

       iv)     P.W.3-Shri Kamal Goswami, Manager of the Travel Agency, at  about 2/2.30 p.m. had suddenly felt some touch on his leg.  He found the  appellant No.2 climbing the upper bunker of the vehicle.  He was wearing a  long pant, although during his journey he was wearing only a jangia.

       v)      While the missing girl was searched, the appellant No.2 was  found to have sustained some injuries on his face, although, no such  injury/stain was noticed by P.W.3 while they were coming from Nagaon to  Guwahati, which showed that the girl offered resistance before being raped.

       vi)     A brown coloured jangia belonging to him was recovered,  which was having some white stains.   

       vii)    He made constant pressure on P.W.2-Shri Kapil Kumar Paul to  allow him to leave Paltan Bazar bus stand with his vehicle.

       Ms. Vibha Datta Makhija, learned Amicus Curiae, in support of the  appellants would submit :

       a)      There are many missing links in the chain which have not been  appreciated by the courts below in their proper perspective.   

       b)      Seizure of the under garments of the appellants is not free from  doubt as the seizure witnesses clearly stated that they had visited police  station at different points of time and thus, they could not be witnesses to  seizure;  

       c)      The under garments, which were purported to have seized, had  not been sent for chemical examination and thus, inference drawn by the   courts below that white stains were semen stains, had not been established.  

       d)      Although, urine and blood samples of the appellants were  taken, the same having not been sent for chemical analysis, an adverse  inference in this behalf should be drawn against the prosecution.

       e)      In the vaginal swap obtained by the doctor, no semen was  found.  The Forensic Science Laboratory Report was not brought on record  and thus, deliberate withholding of material must be held to have weakened  the prosecution case.

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       f)      Although, the appellant No.1 had the key of the lock, the  possibility of some co-passengers committing the said offence cannot be  ruled out.                  g)      The testimony of mother of the deceased is not reliable as she  had omitted to make statements as regards the purport conduct of the  appellants before the police.

       h)      No reliance can be placed on the confession of the appellant  No.1 as he had remained in police custody for a long time.

       i)      Evidence of Smt. Nirupama Rajkumari, the Judicial Magistrate  (P.W.8) does not show that all statutory requirements in recording the said  confession had been carried out.           

       Mr. Ng. Junior Luwang, learned counsel appearing on behalf of the  respondent, on the other hand, would submit :  

       (i)     Confession of the appellant No.1 itself was sufficient to uphold  the judgment of conviction and sentence of both the appellants;  

       (ii)    The depositions of the prosecution witnesses clearly suggest  that offence had been committed between 1 p.m. to 3 p.m.;    

       (iii)   The conduct of Appellant No.1 clearly goes to show that he had  committed the offence;  

       (iv)    Appellant No.2’s admitted presence at the spot, his absence  from the bus for some time, coupled with the injuries on his face, clearly  point out that he had also taken part in commission of the said offence.

       We may, at the outset, place on record that this is one of the rare cases  where the witnesses examined on behalf of the prosecution, inter alia, were  the employees of the company where the appellants had also been working.   

       The presence of the appellants at the place of occurrence on the said  night is not in dispute.

       Appellant No.1 was the chawkidar of the waiting room of Net Work  Travels and he was the only person who had the key, and without his  knowledge nobody could have entered into the waiting room.

       The waiting room was otherwise secure, having grills and collapsible  gates.  The second collapsible gate was also closed.

       The bathroom as also the latrine were situated within the said  premises.

       The family came back to the waiting room after 10.30 p.m.  The girl  was found missing at about 3 O’clock.  A search of the deceased was  commenced.  She was not found not only within the premises of the waiting  room but also other nearby places.

       The buses belonging to other travel agencies were also searched.  A  search was carried out even at the railway station.                    The bus bearing No.AS-25-C-1476, in which the appellant No.2 was  working as a handiman, left at about 6.30 a.m. for Jorhat.   

       The dead body was detected at about 9 a.m.   

       The Manager of the Net Work Travels himself lodged the First  Information Report suspecting the appellant No.1 as also the driver,  conductor and the handiman of the bus bearing No.AS-25-C-1476, as having

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committed the offence.   

       The said bus was intercepted at about 10 a.m. and they were brought  to the police station.

       P.W.22-the mother of the victim saw the appellants herein talking to  each other.  According to her she was goaded to go to sleep; she was even  threatened.   

       Appellant No.2 did not have any injury on his face earlier.  Shri  Kamal Goswami, the Manager of the Net Work Travels, who had travelled  with the appellant No.2 in the same bus, in no uncertain terms stated that  while he went to sleep, at about 2/2.30 p.m. he suddenly felt a touch on his  leg and found the appellant No.2 moving to the upper bunker of the said  vehicle.  He had been wearing a long pant, although he had been wearing  only a jangia while traveling from Nagaon to Guwahati.  He had heard that  the couple and the children were staying in the waiting room having missed  their bus to Dimapur as also in regard to the searches carried out for tracing  the missing girl.

       He also deposed to the effect that although the appellant No.2 had  some injuries on his face, he had not offered any explanation therefor.  He is  also a witness to the seizure of the under pants.  Apparently, there is no  reason to disbelieve his statement, particularly when both the appellants in  their examination under Section 313 of the Code have accepted their  presence.  Appellant No.2 at no point of time, even during his examination  under Section 313 of the Code, could offer any suitable explanation in  regard to the stains/injuries on his face.   

       Shri Krishna Hazarika, the driver of the bus, examined himself as  P.W.26.  He proved that the appellant No.2 was seen to be gossiping with  the appellant No.1 inside the complex of Net Work Travels.  He proved the  fact that a search was carried out in regard to the missing of Barnali.  He also  spoke about the seizure of the under pants containing some stains.  This  witness categorically stated that when they had gone to sleep, the appellant  No.2 was not seen.  On the aforementioned aspects he was not even cross- examined.   

       P.W.4-Shri Jams Brown was the conductor of bus bearing No.AS-1- G-5990.  Apart from corroborating the prosecution case in regard to the  commotion emanating from the missing of the deceased, he had stated that  after the missing girl was searched, the appellant No.2 came into his bus.   On being questioned, he had reported that he came from bus bearing No.AS- 25-C-1476 for sleeping.   

       We have noticed hereinbefore that the parents of the deceased girl  (P.Ws.22 and 23) stated in details as to under what circumstances they had  to stay in the waiting room.  The Cashier of the Net Work Travels \026 Shri  Kapil Kumar Paul, who examined himself as P.W.2, apart from his  statements which have been noticed hereinbefore, categorically stated that  the appellant No.2, together with the driver and conductor of the bus bearing  No.AS-25-C-1476 persuaded pressed him to allow the bus to leave for  Jorhat earlier than the scheduled time, and he refused to accede to their  request.  It is only because of their conduct he suspected their involvement  in the crime.  This witness also categorically stated that lock and key of the  waiting room would always be with the chawkidar.

       We may now consider the manner in which the confessional statement  made by the appellant No.1 was recorded.  He was admittedly brought to the  Court of Smt. Nirupama Rajkumari, the Judicial Magistrate, 1st Class at  Guwahati (P.W.8), for getting his statement recorded on 24.7.2002.  The  voluntariness and truthfulness of the confession is not in dispute.  Appellant  No.1 was produced before P.W.8 in her official Chamber at about 4.45 p.m.   He was warned that the confession made by him might be used in evidence  against him.  She recorded the confessional statement of the appellant No.1

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being satisfied as regards the voluntariness thereof.  The said confessional  statement reads as follows :

       "I am the night watchman of the Paltan Bazar  counter of Network travels.  On 13/7/02 I was on duty at  the counter.  Around 10.30 that night a bus arrived from  Dharmanagar.  Some passengers : from that bus came  and requested me to allow them to stay at the counter for  the night.  The group comprised a man, two women \026 a  girl of about 8 or 9 and a child of about 3 or 4.  I allowed  them to sleep at the counter.  Around 1.30 am one ’NR  Super’ bus (No.1476) arrived from Jorhat and its staff  slept in the bus itself.  Around 2 a.m. Putul Bora,  handyman of the N.R. Super bus got down from the bus  and came to me.  Then I proposed to Putul Bora rape of  the said 8 or 9 year old girl sleeping at the counter.   According to my plan I and Putul Bora lifted the said 8 or  9 year girl in her sleep and in the bathroom at the  counter, we raped her, first me and then Putul Bora.  As  the girl was asleep, she did not shout.  After having raped  her, we found the girl still.  Then I and Putul Bora  opened the lid of the septic tank of the lavatory at the  counter, put the girl inside the septic tank and closed the  lid.  Then I left for my duty and Putul Bora went back to  the bus and slept there."         

       A bare perusal of the aforementioned statement clearly shows that a  detailed statement had been made by him in regard to commission of the  offence.

       A confessional statement, as is well known, is admissible in evidence.   It is a relevant fact.  The Court may rely thereupon if it is voluntarily given.   It may also form the basis of the conviction, wherefor the Court may only  have to satisfy itself in regard to voluntariness and truthfulness thereof and  in given cases, some corroboration thereof.  A confession which is not  retracted even at a later stage of the trial and even accepted by the accused in  his examination under Section 313 of the Code, in our considered opinion,  can be fully relied upon.

       In this case, not only the confession had not been retracted, the  appellant No.1 in his examination under Section 313 of the Code accepted  the same, as would be evident from the following questions and answers :

"Q.No.41 : It is also in her evidence that on your  production, the Magistrate asked you whether you were  willing to give a confessional statement of guilt.  What is  your say? Ans  :   The Magistrate asked me whether I was willing to  make confessional statement.  I wanted to give my  confessional statement as I committed the offence.

Q.No.42  :  It is also in her evidence that she made you  understand that you are not bound to make confessional  statement, the confession so to be made would go against  you, that she was not a police man but a magistrate.   What is your say? Ans  :  The Magistrate did explain me the above fact to  me and consulted the same carefully about the result of  such confession.

Q.No.43  :  It is also in her evidence that you were put in  the charge in the office peon in her chamber (office) at  1.30 PM you were produced and then again at 4.45 PM  for recording your statement. Ans  :  Yes, I was produced before her.

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Q.No.44  :  It is also in her evidence that at your  production again she again explained to you the import of  confession and you expressed your willingness to give  confessional statement.  What is your say? Ans  :  Yes I, expressed my willingness to give  confessional statement.  I understand her all questions  (sic) put to me.

Q.No.45  :  It is also in her evidence that inspite of  repeated caution you were sanguine to give a  confessional statement about your guilt.  What is your  say? Ans  :  I was sanguine to given confessional statement  because I was repenting to my misdeed that I did.

Q.No.46  :  It is also in her evidence that you voluntarily  gave confessional statement, what is your say? Ans.  :  Yes, I voluntarily gave my confessional  statement because I committed the offence.  I am guilty  of the offence.

Q.No.47  :  It is also in her evidence that she recorded  your confessional statement and the statement was  readover to you and put your signatures having found the  same as correct.  What is your say? Ans  :  Yes, my confessional statement was recorded by  the Magistrate.  The confessional statement so recorded  was not read over to me.  I put my signature in the  confessional statement.

Q.No.48  :  It is also in her evidence that Ext.10 is the  confessional statement recorded by her wherein Ext.10(7)  to 10(8) and 10(9) are my signatures and Ext.10(1) to  10(6) are her signatures.  What is your say? Ans  :  Yes. Ext.10(7) to 10(9) are my signatures."        

                                                We are not oblivious of the general proposition of law that confession  would not ordinarily be considered the basis for a conviction.  We must,  however, at this stage, notice that this is one of those rare cases where an  appellant had stuck to his own confessional statements.  He did not make  any attempt to retract.  He even did not state that it was not truthful or  involuntary.   

       It is well settled that statements under Section 313 of the Code of  Criminal Procedure, cannot form the sole basis of conviction; but the effect  thereof may be considered in the light of other evidences brought on record.   {See Mohan Singh vs. Prem Singh [(2002) 10 SCC 236], State of U.P. vs.  Lakhmi [(1998) 4 SCC 336], and Rattan Singh vs. State of HP. [(1997) 4  SCC 161].}

       In Aloke Nath Dutta & Ors. vs. State of West Bengal [2006 (13)  SCALE 467], this Court noticed the law in  regard to the effect of a  confessional statement of the accused in the following terms :

       "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

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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 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."

       It was further opined :

       "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 referable in nature.  Such corroboration must  be independent and conclusive in nature."        

       In State (N.C.T. of Delhi) vs. Navjot Sandhu @ Afsan Guru  [(2005) 11 SS 600], this Court stated :

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       "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"

       We may also notice that in Sidharth & Ors. vs. State of Bihar  [(2005) 12 SCC 545], this Court opined :

"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 appellant  Arnit Das."

       In a case where sufficient materials are brought on records to lend  assurance to the Court in regard to the truthfulness of the confession made,  which is corroborated by several independent circumstances lending  assurance thereto, even a retracted confession may be acted upon.  {See  State of Tamil Nadu vs. Kutty @ Lakshmi Narsimhan [(2001) 6 SCC  550]; Bhagwan Singh vs. State of M.P. [(2003) 3 SCC 21]; and Sarwan  Singh Rattan Singh vs. State of Punjab [1957 SCR 953].}

       We have analysed at some length the corroborative nature of  evidences brought on records by the prosecution.  The fact that the  appellants were seen talking to each other, absence of the appellant No.2  from the bus in question, his effort to sleep in another bus leaving his own

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bus, his absence for about 1 to 1= hour, injury/stains on his face and change  of his garments during that period, all stand well proved.  They, in our  considered view, lend corroboration to prosecution case as also the judicial  confession made by the appellant No.1.  Indeed corroboration to the said  confession and the circumstantial evidences as noticed hereinbefore can also  be judged from the statements made by the appellant No.2 in his  examination under Section 313 of the Code of Criminal Procedure.   

       The relevant questions and answers thereunder are as follows :

"Q.14  :  Was the other accused, the watchman, present  that night? Ans  :  It is true the other accused, the watchman, was  there.

Q.19  :  Did your bus, i.e. bus No.AS-25-C-1476, start  from Jorhat in the morning? Ans  :  That is true.

Q.25  :  Where you there in the Network travels  compound that night with the vehicle? Ans  :  That is true.

Q.32  :  The witness say stains on your face and when he  asked you about, you could not say anything.  You had  no stains in your face when you had come from Nagaon? Ans  : That is true.

Q.33  :  By ext.6 the police seized the underpants you  were wearing which had white stains on it.  Ext 6(1) is  the signature of the witness.  What is your statement? Ans  :  That is true.     

Q.34  :  Witness No.4 has stated that on the night of  occurrence he was the Conductor of bus No.AS-106- 5996 and that you were on the campus.  Is that true? Ans  :  That is true.     

Q.36  :  Witness No.5 has stated that he is the owner of  bus No.AS-25-C-1476; that the manager informed him  over telephone that a girl had gone missing from the  waiting room of Network travels; that he then came and  went to Paltan Bazar police station; and that the police  seized your undergarments.  Is that true? Ans  :  That is true.     

Q.42  :  Witness No.9 he stated that in his presence  Paltan Bazar Police seized, by ext.6, your undergarments  containing white stains.  What is your statement? Ans  :  That is true.     

Q.84  :  The following morning you and the driver and  the conductor started from Jorhat by that bus, and the  police seized the bus at Kahara with you all.  Is that true? Ans  :  That is true.     

Q.96  :  Did the police seized your undergarments that  had white stains on it? Ans  :  That is true."           

       Indisputably, Section 30 of the Indian Evidence Act, 1872, in a  situation of the present nature, can be taken aid of.  The courts below did  take into consideration the confessional effect of the statements made by the  appellant No.1 as against the appellant No.2 for arriving at an opinion that  by reason thereof involvement of both of them amply stand proved.

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       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.    

The question has been considered in State of M.P. through CBI &  Ors. vs. Paltan Mallah & Ors. [(2005) 3 SCC 169], stating :  

".....Under Section 30 of the Evidence Act, the extra- judicial confession made by a co-accused could be  admitted in evidence only as a corroborative piece of  evidence.  In the absence of any substantive evidence  against these accused persons, the extra-judicial  confession allegedly made by the ninth accused loses its  significance and there cannot be any conviction based on  such extra-judicial confession.."    

In Sidhartha (supra), this Court held :

"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 vs. 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  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

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told in the confession concerning the crime and the  appellant’s connection with crime."

       {See also Navjot Sandhu (supra) and Jaswant Gir vs. State of  Punjab (2005) 12 SCC 438].}

       Both the appellants had accepted their presence at the place of  occurrence.  Appellant No.2 had accepted that there were injuries on his  face.  He also accepted that there were stains in his seized undergarment.

       Ms. Makhija may be correct in saying that all the witnesses to the  seizure are not truthful, but, apart from the Investigating Officer, seizure has  been proved by P.W.4 and P.W.26.  They were themselves suspects; they  were brought to the police station.  They must have been interrogated and if  they were witnesses to the seizure, we do not find any reason as to why we  should completely ignore the seizure of the said undergarments, particularly  in regard to its relevance, vis-‘-vis, the statement of the manager of the bus  that he had changed his dress within the probable time of commission of the  offence.   

       Indisputably, the investigation was done in a slipshod manner.  The  undergarments should have been sent for chemical analysis.  Even the urine  and blood samples, which were taken, allegedly, have been sent for their  analysis in the Forensic Laboratory.  According to the Investigating Officer,  the report was placed on records.  It, however, was not marked as exhibit.   Apart from the Investigating Officer, indeed the Public Prosecutor was  remiss in performing his duties.   

       Submission of Ms. Makhija, that the possibility of the other passenger  committing the crime cannot be ruled out, in our opinion, is wholly  misplaced.  Some more passengers may be there in the waiting room, but,  they were found present at the time of search of the deceased girl.   Evidently, they must have been found sleeping.  If they had committed the  offence, some suspicious circumstances could have been found.  They were  not suspected even by the parents of the deceased girl.  Evidently, they could  not have gone out as the lock and key was with the appellant No.1.  Even no  outsider would come in to commit the offence.  The bathroom, where the  offence had been committed, measures 5 ft. x 5 ft.  It was within the locked  premises.  Only the septic tank was outside the premises, wherefrom the  dead body of Barnali was recovered.

       There were two other small rooms.  One was urinal for the passengers.   Another was the place of drinking water.  Both were on the two sides of the  said bathroom.  Even the office room and the store room of the Net Work  Travels were within the enclosed premises.  There was an office room of Air  India.

       There were three buses, which were parked outside.  Only because six  other persons were there in the bus, suspicion cannot be pointed out to them.   

       It is settled that the conviction can be based solely on circumstantial  evidence, but it should be tested by the touchstone of law relating thereto as  laid down by this Court in Hanumant Govind Nargundkar vs. State of  M.P. [AIR 1952 SC 343].  {See Sharad Birdhichand Sarda vs. State of  Maharashtra [(1984) 4 SCC 116].}

       In Hodge’s case [168 ER 1136 at 1137], it was held :

       "Alderson, B., told the jury, that the case was  made up of circumstances entirely; and that, before they  could find the prisoner guilty, they must be satisfied, "not  only that those circumstances were consistent with his  having committed the act, but they must also be satisfied  that the facts were such as to be inconsistent with any

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other rational conclusion than that the prisoner was the  guilty person."         He then pointed out to them the proneness of the  human mind to look for \026 and often slightly to distort the  facts in order to establish such a proposition \026 forgetting  that a single circumstance which is inconsistent with such  a conclusion, is of more importance than all the rest,  inasmuch as it destroys the hypothesis of guilt."

       Appellant No.1’s involvement in the offence stands proved beyond all  reasonable doubt.  Apart from his conduct, his confessional statement, which  is admissible in evidence under Section 164 of the Code of Criminal  Procedure, is clear pointer to his guilt.  Appellant No.2’s involvement is also  proved.  Their conduct, in particular the conduct of the appellant No.1, as  has been disclosed by the prosecution witnesses is admissible under Section  8 of the Indian Evidence Act.  We are, therefore, satisfied that the appellants  had rightly been found guilty of committing the offence.  

       The question which remains is as to what punishment should be  awarded.  Ordinarily, this Court, having regard to the nature of the offence,  would not have differed with the opinion of the learned Sessions Judge as  also the High Court in this behalf, but it must be borne in mind that the  appellants are convicted only on the basis of the circumstantial evidence.   There are authorities for the proposition that if the evidence is proved by  circumstantial evidence, ordinarily, death penalty would not be awarded.   Moreover, the appellant No.1 showed his remorse and repentance even in his  statement under Section 313 of the Code of Criminal Procedure.  He  accepted his guilt.                      In State of Rajasthan vs. Kheraj Ram [(2003) 8 SCC 224], this  Court has stated the law thus :  

       "In Machhi Singh v. State of Punjab [(1983) 3  SCC 470] it was observed:          The following questions may be asked and  answered as a test to determine the ’rarest of the rare’ case  in which death sentence can be inflicted:         (a) Is there something uncommon about the crime  which renders sentence of imprisonment for life  inadequate and calls for a death sentence?         (b) Are the circumstances of the crime such that  there is no alternative but to impose death sentence even  after according maximum weightage to the mitigating  circumstances which speak in favour of the offender?   (SCC p.489, para 39)         The following guidelines which emerge from  Bachan Singh case (supra) will have to be applied to the  facts of each individual case where the question of  imposition of death sentence arises:         (i) The extreme penalty of death need not be  inflicted except in gravest cases of extreme culpability.         (ii) Before opting for the death penalty the  circumstances of the "offender" also require to be taken  into consideration along with the circumstances of the  "crime".         (iii) Life imprisonment is the rule and death  sentence is an exception. Death sentence must be  imposed only when life imprisonment appears to be an  altogether inadequate punishment having regard to the  relevant circumstances of the crime, and provided, and  only provided, the option to impose sentence of  imprisonment for life cannot be conscientiously  exercised having regard to the nature and circumstances  of the crime and all the relevant circumstances.         (iv) A balance sheet of aggravating and mitigating

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circumstances has to be drawn up and in doing so the  mitigating circumstances have to be accorded full  weightage and a just balance has to be struck between the  aggravating and the mitigating circumstances before the  option is exercised.  (SCC p.489, para 38)         In rarest of rare cases when collective conscience  of the community is so shocked that it will expect the  holders of the judicial power centre to inflict death  penalty irrespective of their personal opinion as regards  desirability or otherwise of retaining death penalty, death  sentence can be awarded. The community may entertain  such sentiment in the following circumstances:         (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. (SCC pp. 487-88, paras 32-33)         (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 a 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 for betrayal of  the motherland. (SCC p.488, para 34)         (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. (SCC p.488,  para 35)         (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.  (SCC p.488, para 36)         (5) When the victim of murder is an innocent  child, or a helpless woman or an 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. (SCC pp.488-89, para 37)         If upon taking an overall global view of all the  circumstances in the light of the aforesaid propositions  and taking into account the answers to the questions  posed by way of the test for the rarest of rare cases, the  circumstances of the case are such that death sentence is  warranted, the court would proceed to do so. (SCC p.489,  para 40)"

       In State of M.P. vs. Munna Choubey & Anr. [(2005) 2 SCC 710], it  was observed as under :

       "Therefore, undue sympathy to impose inadequate  sentence would do more harm to the justice system to  undermine the public confidence in the efficacy of law  and society could not long endure under such serious  threats. It is, therefore, the duty of every court to award  proper sentence having regard to the nature of the offence  and the manner in which it was executed or committed  etc. This position was illuminatingly stated by this Court  in Sevaka Perumal  v. State of Tamil Naidu (1991 3 SCC  471."

       In Sahdeo & Ors. vs. State of U.P. [(2004) 10 SCC 682], this Court  opined :

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       "As regards the sentence of death imposed on five  accused persons by the sessions court, which was  confirmed by the appellate court, the counsel for the  appellants, Shri Sushil Kumar submitted that in the  absence of clear and convincing evidence regarding the  complicity of the accused, these appellants could not be  visited with the death penalty, while the counsel for the  State submitted that this is a ghastly incident in which  eight persons were done to death and the death penalty  alone is the most appropriate punishment to be imposed.  Though it is proved that there was an unlawful assembly  and the common object of that unlawful assembly was to  kill the deceased persons, there is another aspect of the  matter inasmuch as there is no clear evidence by the use  of whose fire-arm all the six deceased persons died as a  result of firing in the bus. It is also pertinent to note that  the investigating agency failed to produce clear and  distinct evidence to prove the actual overt acts of each of  the accused. The failure to examine the driver and  conductor of the bus, the failure to seize the bus and the  absence of a proper ’mahzar’, are all lapses on the part of  investigating agency. Moreover, the doctor who gave  evidence before the court was not properly cross- examined regarding the nature of the injuries. Some more  details could have been collected as to how the incident  might have happened inside the bus. These facts are  pointed out to show that the firing may have been caused  by the assailants even while they were still standing on  the footboard of the bus and some of the appellants may  not, in fact, have had an occasion to use the fire-arm,  though they fully shared the common object of the  unlawful assembly. Imposition of the death penalty on  each of the five appellants may not be justified under  such circumstances. We take this view in view of the  peculiar circumstances of the case and it should not be  understood to mean that the accused persons are not to be  convicted under Section 302 read with Section 149 and  the death penalty cannot be imposed in the absence of  various overt acts by individual accused persons. In view  of the nature and circumstances of the case, we commute  the death sentence imposed on A-1 Sahdeo, A-4  Subhash, A-5 Chandraveer, A-7 Satyapal and A-10  Parvinder to imprisonment for life."

       In Raju vs. State of Haryana [(2001) 9 SCC 50], it has been opined  by this Court :         "However, the next question is whether this would  be a rarest of rare cases where extreme punishment of  death is required to be imposed. In the present case, from  the confessional statement made by the accused, it would  appear that there was no intention on the part of the  accused to commit the murder of the deceased child. He  caused injury to the deceased by giving two brick blows  as she stated that she would disclose the incident at her  house. It is true that learned Sessions Judge committed  error in recording the evidence of SI Shakuntala, PW 15  with regard to the confessional statement made to her,  but in any set of circumstances, the evidence on record  discloses that the accused was not having an intention to  commit the murder of the girl who accompanied him. On  the spur of the moment without there being any  premeditation, he gave two brick blows which caused her  death. There is nothing on record to indicate that the  appellant was having any criminal record nor can he be  said to be a grave danger to the society at large. In these

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circumstances, it would be difficult to hold that the case  of the appellant would be rarest of rare case justifying  imposition of death penalty."

       Yet, recently in Amrit Singh vs. State of Punjab [2006 AIR SCW  5712], this Court, in a case where the death was not found to have been  intended to be caused, was of the opinion that no case under Section 302 of  the Indian Penal Code was made out stating :

       "Imposition of death penalty in a case of this  nature, in our opinion, was, thus, improper.  Even  otherwise, it cannot be said to be a rarest of rare cases.   The manner in which the deceased was raped may be  brutal but it could have been a momentary lapse on the  part of Appellant, seeing a lonely girl at a secluded place.   He had no pre-meditation for commission of the offence.   The offence may look a heinous, but under no  circumstances, it can be said to be a rarest of rare cases."   

       {See also Sheikh Ishaque & Ors. vs. State of Bihar [(1995) 3 SCC  392],  Rony vs. State of Maharashtra [(1998) 3 SCC 625], Bachan Singh  vs. State of Punjab [(1980) 2 SCC 684] and Machhi Singh (supra).}

       This aspect of the matter has recently been considered at some length  by this Court in Aloke Nath Dutta (supra).

       There is another aspect of this matter which cannot be overlooked.   Appellant No.1 made a confession.  He felt repentant not only while making  the confessional statement before the Judicial Magistrate, but also before the  learned Sessions Judge in his statement under Section 313 of the Code of  Criminal Procedure.   

       It is, therefore, in our opinion, not a case where extreme death penalty  should be imposed.  We, therefore, are of the opinion that imposition of  punishment of rigorous imprisonment for life shall meet the ends of justice.   It is directed accordingly.  Both the appellants, therefore, are, instead of  being awarded death penalty, are sentenced to undergo rigorous  imprisonment for life, but other part of sentence imposed by the learned  Sessions Judge are maintained.  

       Subject to the modification in the sentence mentioned hereinbefore,  this appeal is dismissed.   

       We must, before parting, however, express our appreciation for Ms.  Makhija who had rendered valuable assistance to us.