IMPORTANT POINTS
1. It is trite that for the confession to form basis of conviction the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
2. In the absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused
3. If the offence is proved by circumstantial evidence and if there are no special justifiable reasons, ordinarily death penalty should not be awarded.

Headnote:(i) Indian Penal Code, 1860 – Section 302/34 – Sessions Court sentencing three accused to death and one to life imprisonment – sentence upheld by High Court – evidence of PWs 3, 4, 6, 15, 18 and 19 being are consistent there is no reason as to why the findings of the courts below in this behalf should not be agreed to – 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, lead to only one conclusion that only Aloke Nath was responsible for death of the deceased – His involvement having been proved beyond doubt, he has rightly been convicted.(Paras 17, 19, 50, 53, 61 to 63)
       (ii) Indian Penal Code, 1860 – Section 120B – Conspiracy - 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 – Evidences of PW 10 and 14 to 16 taken in entirety do not lead to the conclusion that they conspired to murder Biswanath, but it is sufficiently clear that they conspired to sell the property – 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 – other accused acquitted.(Paras 26, 30, 66 and 159)
       (iii) Code of Criminal Procedure, 1973 – Section 164 – Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together – It may influence the mind of the court – Only that portion of the confession should be taken note of which is admissible in evidence – Court has to arrive at the conclusion as to whether such confession has been retracted or not – It is trite that for the confession to form basis of conviction the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.(Paras 41, 43, 55 and 73)
       (iv) Constitution of India – Article 20(3) r/w 21 and Sections 24 to 26, Indian Evidence Act, 1872 and Section 164, Code of Criminal Procedure, 1973 – Retracted confession – The right to remain silent is an extension of the rule of civil liberty enjoined by our Constitution – The quality or merit of confession, in no uncertain terms, is in voluntary narration by the accused – In a case of retracted confession, the courts would look forward for corroboration which must not be referable in nature – Such corroboration must be independent and conclusive in nature. (Paras 79, 83 and 92)
       (v) Indian Evidence Act, 1872 – Section 114 – In absence of any material, merely because of non-production of documents by Jail authorities, there was no reason for the court to draw an adverse inference that the records had been destroyed – The learned Trial Judge should not have closed the case, rather he should have invoked his jurisdiction under Section 311 of the Code of Criminal Procedure in the interest of justice. (Para 103 and 104)
       (vi) Indian Evidence Act, 1872 – Section 30 – Admissibility of judicial confession against co-accused – In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused – This part of the judgment of the court below not approved. (Paras 116, 118 and 123)
       (vii) Indian Penal Code, 1860 – Section 302 – If the offence is proved by circumstantial evidence and if there are no special justifiable reasons, ordinarily death penalty should not be awarded – death sentence of Aloke Nath Dutta commuted to life imprisonment. (Para 152 and 159)
       Facts of the case:
       (A)Mother of Aloke Nath Dutta owning the house died intestate leaving behind four sons and one daughter. Two brothers Aloke Nath and Bishwanath resided in the same premises. Along with sister of Aloke’s wife and her husband.
       (B)Appellants, Aloke Nath Dutta, his wife Mamta and others, alleged to have entered into a conspiracy to commit the murder of Biswanath Dutta – the bachelor brother of Alok Nath Dutta.
       (C)Aloke Nath having many vices, intended to sell the said house property, wherefor he entered into agreements for sale with one Nandlal Singh as also with one Arunmoy Bose who advanced monies.
       (D)Aloke Nath absented himself from duty from 7.00 p.m. on 22.01.1994 to 28.01.1994, and Possession of Pooja Room and a room occupied by Biswanath was delivered to Nandlal Singh on 23.01.1994 who noticed a newly constructed ‘Bedi’ in the room.
       (E)As advised by his lawyer, Nandlal Singh put in an advertisement in newspapers regarding purchase of a portion of the house. The two other brothers and the only sister of Aloke Nath objecting to the sale, came to the premises and enquired about Bishwanath. 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 and was arrested. The other accused were arrested the next day.
       (F)Body was recovered from the ‘bedi’ at the instance of Aloke Nath who identified it as being that of Bishwanath. Autopsy determined asphyxia as the cause of death.
       (G)Findings of the Court: Aloke Nath Dutta found guilty of murder but death sentence commuted to life imprisonment because there being circumstantial evidences only.
       (H)Other accused not found guilty, acquitted.

JUDGMENT

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.

2. 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.

3. 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 :

4. 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.

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

6. 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 Kumar Thanedar (PW-34), and Biman Ghosh Dastidar (PW-35).

7. 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.

8. 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 ca

Click Here to Read the rest of this document

2006 Supreme(SC) 1280

Cases Referred (64)