2007(1) Crimes 147 (SC)
SUPREME COURT OF INDIA
(From Gauhati High Court)
S.B. Sinha and Markandey Katju, JJ.
Bishnu Prasad Sinha & Anr. - Appellants
versus
State of Assam - Respondent
Criminal Appeal No. 453 of 2006
Decided on 16-1-2007

IMPORTANT POINTS
1. Confession may form basis of conviction wherefor Court may only have to satisfy itself in regard to voluntariness and truthfulness and in some cases some corroboration.
2. If offence is proved by circumstantial evidence, ordinarily death penalty would be awarded.

Headnote:(i) Indian Penal Code, 1860 - Sections 376(2)(g), 302 and 201/34 - Rape and murder of 7-8 years old girl, daughter of PW 22 and 23 - Conviction based on circumstantial evidence and award of death sentence - Appeal - Deceased with her parents and younger brother while travelling had to stay over for night in waiting room - Appellant No. 1 was night chowkidar of waiting room and appellant No. 2 was the “handiman” of the bus - In the past mid night, PW22 mother of victim girl found victim missing and victim could not be traced - Body of victim was found and taken out from septic tank - Appellant No. 1 made confessional statement before Magistrate u/s 164 Cr.P.C. and gave a vivid description as to how crime was committed by him and appellant No. 2 - Confession was never retracted during trial - Confession could form basis of conviction wherefor Court might only to satisfy itself in regard to voluntariness and truthfulness thereof and in some cases some corroboration thereof - Appellant rather admitted to have given confession in his examination u/s 313 Cr.P.C. - Appellants were seen talking to each other - Appellant No. 2 had absented for 1 to 1½ hours from the bus in which he was sleeping past mid night - There were found injury marks on his face and was found to have changed his garments - Circumstances provided corroboration to confession - Confession was rightly used against appellant No. 2 - Conviction was not liable to be interfered with.

       Held : 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.(Paras 31 and 32)

       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. (Para 34)

       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 bus, his absence for about 1 to 1½ 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.(Para 40)

       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. (Para 54)

       (ii) Evidence Act, 1872 - Sections 24 and 26 - Criminal Procedure Code, 1973 - Section 164 - Judicial confession - It may form basis of conviction wherefor Court may only have to satisfy itself in regard to its voluntariness and truthfulness and in given case some corroboration.

       Held : 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.(Para 32)

       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.(Para 39)

       (iii) Criminal Procedure Code, 1973 - Section 313 - Statement under cannot form the sole basis of conviction but effect thereof may be considered in light of other evidence on record.(Para 35)

       (iv) Evidence Act, 1872 - Section 30 - Judicial confession of an accused - As against co-accused should be treated as a piece of corroborative evidence.

       Held : 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. (Para 42)

       (v) Indian Penal Code, 1860 - Sections 376(2)(g), 302 and 201 - Rape and murder of 7-8 year old girl and dead body then recovered from septic tank - Sentence - Trial Court awarded death sentence and High Court upheld the same - Appeal - Appellants were convicted only on basis of circumstantial evidence and ordinarily death penalty would not be awarded - Appellant showed remorse and repentence and did not retract confession u/s 313 Cr.P.C. - Not a case where extreme death penalty was called for - Sentence reduced to life imprisonment.

       Held : 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.(Para 55)

       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.(Paras 63 and 64)

       Result : Appeal dismissed with modification in sentence.