2014 Supreme(SC) 176

SUPREME COURT OF INDIA
K. S. Radhakrishnan, Vikramajit Sen, JJ.
Ashok Debbarma @ Achak Debbarma – Appellant
Versus
State of Tripura – Respondent
CRIMINAL APPEAL NOS.47-48 OF 2013
Decided On : 04-03-2014

IMPORTANT POINTS
Section 27(3) of Arms Act, 1959 is unconstitutional.
Statement u/s 161 CrPC is not a substantive piece of evidence.
Statement u/s 313 CrPC cannot by itself form basis of conviction.
Satisfaction of crime test, criminal test and the RR test is essential for inflicting death sentence.

Headnote:(a) Arms Act, 1959 – Section 27(3) – Section 27(3) is unconstitutional. (Para 11)

       (2012) 3 SCC 346 – Relied upon

       (b) Code of Criminal Procedure, 1973 – Section 154 – FIR – Police started investigation on the basis of information received from DAR camp – Formal complaint received thereafter from PW 2 – This complaint cannot be used as FIR – At best, it is statement of PW2 which can be used to contradict him. (Para 11)

       (c) Indian Evidence Act, 1872 – Section 9 – Test Identification Parade – Accused persons known to the witnesses – They were identified by face – Non-holding of TI Parade was of no consequence. (Para 16)

       AIR 1958 SC 350; (1975) 4 SCC 480; (1970) 3 SCC 518; (1998) 4 SCC 605; (2003) 5 SCC 746 – Relied upon

       (2002) 7 SCC 295 – Referred

       (d) Code of Criminal Procedure, 1973 – Section 161 – Statement before police – Not substantive evidence – Can be used only for the purpose of contradiction and not for corroboration – Omission to mention names of accused u/s 161 – Does not make statement before the court unreliable. (Para 18)

       (e) Code of Criminal Procedure, 1973 – Section 313 – Accused admitting, from the evidence of witnesses, that four persons sustained severe bullet injuries by the firing by the accused and his associates – Statement u/s 313 cannot by itself form basis of conviction – But can aid to prosecution case – Instantly statement of accused u/s 313 fully corroborating evidence of prosecution witnesses – Conviction justified. (Para 22, 23)

       (1992) 3 SCC 700; AIR 1953 SC 468; (1963) 3 SCR 678; (2002) 10 SCC 236; (2004) 9 SCC 15; (2007) 11 SCC 467 – Relied upon

       (f) Indian Penal Code, 1860 – Section 302 – Rarest of rare cases – Accused – One of many and not sole perpetrator of the crime – Others not apprehended – Entire elements of crime cannot be put on the accused – Reasonable doubt and residual doubt – Guilt should be proved with beyond reasonable doubts, if not absolute certainty – Instantly residual doubt or lingering uncertainty exists if the accused could have perpetrated the crime solely – Ineffective legal assistance available/ provided to accused can also be a mitigating circumstance – The crime test, criminal test and the RR test alleviate arbitrariness in sentencing in case of capital sentence. (Para 26, 27, 28, 31, 34, 36, 39, 40)

       (2003) 7 SCC 56; (2002)12 SCC 395; 5 Cush. 295, 320 (1850); 487 US 164 (1988) : 101 L Ed 2d 155; 479 U.S. 541; 466 US 668 (1984); (1978) 3 SCC 544; (1979) 2 SCC 236; (1980) 1 SCC 98; (1983) 3 SCC 307; (1995) 3 SCC 367; (1996) 7 SCC 322 – Relied upon

       (2009) 6 SCC 498; AIR 1959 SC 1012; (2004) 12 SCC 492; (1976) 1 SCC 438; (1976) 2 SCC 819; (2009) 6 SCC 595 – Referred

       (g) Administration of Criminal Justice – Death sentence – Rarest of rare cases – Accused could not have executed the crime alone – Member of a tribe apprehending los of livelihood and property at the hands of the settlers – Frustration and neglect might have led him to take to arms – Not a rarest of rare cases – (2008) 13 SCC 767 applied – Death sentence altered to imprisonment of 20 years without remission over and above the period already undergone. (Para 41. 42)

       (2008) 13 SCC 767 – Relied upon

       Facts of the case:

       A group of Armed Extremists in the night of 11.2.1997, set fire to twenty houses belonging to a group of linguistic minority community of Bengal settlers, at Jarulbachai village of Tripura in which 15 persons including women and children lost their lives and extensive damage to their properties was caused.

       The Appellant and Gandhi Deb Barma were held guilty of the offences under Sections 326, 436 and 302 read with Section 34 IPC and also Section 27(3) of the Arms Act, 1959 read with Section 34 IPC. Gandhi Deb Barma was absconding. The Appellant was sentenced to death on his conviction under Sections 148/149/302/326/307/436 IPC read with Section 27(3) of the Arms Act, 1959.

       The High Court set aside the conviction of the Appellant under Section 27(3) of the Arms Act, 1959. However, the death sentence under Section 302 IPC read with Section 34 IPC, in addition to the sentence passed for offence under Sections 326 and 436 read with Section 34 IPC, was sustained.

       Finding of the Court;

       This is not rarest of rare cases.