2006 Supreme(SC) 1281

2007(2) Supreme 664
SUPREME COURT OF INDIA
(From Calcutta High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Aloke Nath Dutta & Ors.—Appellants
versus
State of West Bengal—Respondent
Criminal Appeal Nos. 867-868 of 2005
With
Criminal Appeal No. 875 of 2005
Decided on 12-12-2006
Counsel for the Parties :
For the Appellants : Pradip Ghosh, Sr. Advocate, Manohar Singh Bakshi (A.C.), Rauf Rahim and Mohd. Iqbal, Advocates.
For the Respondent : Altaf Ahmed, Sr. Advocate, Avijit Bhattacharjee, Kaji Safiulla, Saumya Kundu and Bikash Kargupta, Advocates.

IMPORTANT POINTS
1. 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. It must be independent and conclusive in nature.
2. A retracted confession of a co-accused cannot be relied upon for the purpose of finding corroboration for the retracted confession of an accused.
3. When a brother, a bachelor was killed while he was in deep slumber, the reason for commission of the murder being greed of money on the part of the accused which evidently arose out of result of his bad habits, the case cannot be said to be one constituting rarest of rare case.

Headnote:Indian Penal Code, 1860—Sections 302/120B, 302/34—Murder of brother—Criminal conspiracy to execute pre-planned murder—Circumstantial evidence—Since the death of his mother, appellant tried to sell the house surreptitiously without informing his other brothers and sister—Deceased used to stay at the second floor with some tenants occupying some portions thereof whereas appellant used to reside on first floor along with wife, her sister and brother-in-law—Deceased was a bachelor—Prior to the incident, appellant entered into an agreement to sell the house and received an amount—He introduced his brother-in-law as brother, deceased and delivered possession of two rooms on second floor—An advertisement was published in the newspaper for sale of house—When other two brothers and sister reached the house and enquired about deceased, appellant gave false information—However, on their insistence, appellant confessed that he had throttled deceased to death and kept the dead body concealed inside the house—On basis of said confession, skeletonized body of deceased was recovered from the bedi dismantled by labourers—No evidence against brother-in-law of appellant—No independent evidence adduced on behalf of prosecution to prove conspiracy with regard to cheating and forgery of documents and impersonation—Only evidence against other two accused was the judicial confession of accused—Whether conviction of appellant for offence of murder is sustainable—(Yes)—Is this case an instance of ‘rarest of rare cases’ meriting imposition of capital sentence—(No)—Judgment of conviction against other three accused is set aside.

       Held : There is no eye-witness to the occurrence. Nobody has noticed any suspicious conduct on part of the Appellants indicating their role in 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.(Para 75)

       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. (Para 116)

       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.(Para 117)

       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. (Para 118)

       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.(Para 151)

       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.(Para 152)

       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.(Para 153)

       (ii) Criminal Procedure Code, 1973—Section 164—Evidence Act, 1872—Sections 24 to 26—Confession—Admissibility—Retracted judicial confession—Constitutional postulates—Legislative paradigm—Evidentiary value of retracted confession for co-accused—Effect of a retracted confession—Constitution of India—Article 20(3).

       Held : 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. (Para 77)

       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.(Para 78)

       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. (Para 91)

       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.(Para 95)

       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.(Para 102)

       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.(Para 103)

       (iii) Criminal Procedure Code, 1973—Section 164—Retracted confession—Weak evidence—Court while relying on such retracted confession must satisfy itself that the same is truthful and trustworthy.

       Held : It is now a 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.(Para 110)

       (iv) Criminal Procedure Code, 1973—Section 164—Judicial Confession—Procedural safeguards—Although Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature—While recording confession in strict compliance of the provisions of Section 164 of the Code, the court 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—Evidence Act, 1872—Sections 25 and 26.

       Held : 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. (Para 89)

       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.(Para 90)

       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. (Para 91)

       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.(Para 92)

       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.(Para 94)

       (v) Evidence Act, 1872—Section 27—Extra judicial confession—Evidentiary value—Conviction based on extra judicial confession—Sustainability when the confession made was voluntary in nature and the same having been spontaneous in the form of natural response to a stressful stimulus made at the spur of the moment—Confession 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.(Para 61)