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2003 Supreme(Pat) 42
PATNA HIGH COURT
Prabhat Kumar Sinha and Braj Nandan Prasad Singh JJ.
State Of Bihar
Versus
Arnit Das
Death Reference No. 3 of 2001 ;
Criminal Appeals No. 368 of 2001 ; 373 of 2001 ; 395 of 2001 ;
Decided On : JANUARY 10, 2003
Headnote:Indian Penal Code 1860-Section 302 r/w Indian Evidence Act, 1872-Section 10, 24 and 30·-Murder trial-Judical confession and extra-judicial confession-Delay in making confession-A confession can be made to any person, but if that is made before a Judicial Magistrate requirements of Section 164 Cr. P. C. have to be fulfilled-If that is made to a private person, then the maker can be convicted on the basis of that if, in view of attending circumstances in a particular case, the Court finds the evidence of the witness to whom such confession was made to be reliable-In the present case, the evidence of the witness before whom confession has been made found to be reliable one and the assailant not giving detailed account of everything is natural- The evidence of such witness rightly relied upon-In so far as delay is concerned, it cannot be taken as a general rule that whenever there had been some delay in making statement to the Police, the witness must be disbelieved.
(Paras 24, 30, 32 and 33)
Indian Evidence Act, 1872-Sections 24 & 30 r/w Criminal Court Rules-Rule 21 (i)Time required for reflection in making confession-How much time would be sufficient for reflection would differ from case to case it is ultimately on the satisfaction of the Magistrate that the confession is voluntary which will matter because it is the Magistrate while recording the confession has dealt with the accused, had an opportunity to talk to him and to watch his demeanour-When the Magistrate says that he was satisfied that the confession was voluntary, ordinarily should not be doubted-When the accused knew, before making confession, that after his confession he was to be sent to the Remand Home, the Magistrate not telling him that even if he did not make confession, he would not be sent back to the Police custody will not vilify the confession. (Paras 43 & 48)
Indian Evidence Act, 1872-Sections 10, 30 & Indian Penal Code, 1860-Section 120B-Retracted confession in cases of conspiracy- Though, a retracted confession is a weak evidence against the co-accused, still it can be considered in evidence against the co-accused if there is sufficient corroboration on material points-Direct evidence to prove conspiracy is hardly available-Because it was ordinarily very difficult to prove a charge of criminal conspiracy by direct evidence, specially for this Section 10 in the Evidence Act, was incorporated as a exception to the general rule and, therefore while considering a confession of an accused against a co-accused, the confession, including a retracted one, could be considered and from other evidences on the record it has to be found out as to whether, the confession was sufficiently corroborated on material points To prove an offence under Section 120-8 of the Code, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. (Paras 72 to 74)
AIR 1988 SC 1705; AIR 1982 SC 1595; (1972)3 SCC 759; 1976 Cr. LJ 1629; 1999 Cr.LJ 267 : 1999(1) PCCR 8 (SC); AIR 2002 SC 3109: 2003(1) PCCR 279 (SC); 1999 (1) PCCR 159; 1999(1) PCCR 158; AIR 1976 SC 2489Distinguished.
(2000)8 SCC 45: 2003(1) PCCR 143 (SC); AIR 1985 SC 1678; 1975 Cr. LJ 1102; AIR 1954 SC 322; (1973) 2 SCC 44; 1985 Cr. LJ 1079; (1994) 3 SCC 569; AIR 1978 SC 1544; AIR 1981 SC 2007; AIR 1995 SC 980; AIR 2001 SC 2503: 2001(1) PCCR 196 (SC); AIR 1997 SC 445; AIR 1940 PC 176; AIR (31) 1944 Mad. 302; AIR 1957 SC 747; AIR 1998 SC 1686; AIR 1965 SC 682; (1999) 5 SCC 253; (2000) 6 SCC 269: 2000(2) PCCR 305 (SC); AIR 1974 SC 898; AIR 1973 SC 450; (1992)1 SCC 742; AIR 1959 SC 1; AIR 1981 SC 1062; (1982)2 SCC 202-Referred.
1998(2) SCC 301-Applied.
AIR 1959 SC 1; (1998) 9 SCC 238; (1999) 4 SCC 370 :1991(1) PCCR 257(SC)-Relied.
Juvenile Justice (Care and Protection of Children) Act, 2000 r/w Rule 61 (2) & (3) of the Model Rules-The accused-appellants having already crossed eighteen years of age on the date the Act of 2000 came into force, benefits of its provisions cannot be given to them. (Para 106)
2002(3) PLJR 652 : 2002(2) PCCR 306 (PHC)-Approved (Impliedly)
Indian Penal Code, 1860-Section 302 Death Sentence-Accused in the prime of his youth, no criminal antecedent against him Nothing on record to indicate that, if not eliminated, he would eventually be harmful to the society, or is likely to take up to crimes later This is not one of those rarest of rare cases for awarding death sentence-Sentence of death converted into the life imprisonment.(Para 109) Indian Evidence Act, 1872-Section 157-irst Information Report, evidentiary value of First Information Report lodged by an accused can be taken into consideration if that amounts to admission, not confession-The accused, informant is his statement made u/ s 313 Gr, AG., admitting the statements made in the F.I.R.- The statements made in the F.I.R. can be considered against him. (Para 76(iv)
Prabhat Kumar Sinha, J.
1. On 5.9.1998 in the evening hours, in between 7.00 to 7.15 P.M. a college going young boy, Abhishek, while he was taking tuition at the house of one Prof. J.C. Banerjee (P.W.11), was shot dead after he was called out of the house on some pretext for which on the statement, (Exhibit-14) of Rohan Prakash, said to be taking tuition along with him who subsequently was arraigned as one of the accused in the case, formal first information report (Exhibit-15) was registered.
2. The prosecution, in course of the trial, contended that murder was committed by appellant Arnit Das in conspiracy with the appellants Sidharth and Rohan Prakash, meticulously planned and hatched up on 4.9.1998 in the house of Sidharth. The Sessions Judge, Patna, after the trial, came to conclusion that the charges under section 302 of the Indian Penal Code (The Code, in short), 302 read with section 34 of the Code, 302 read with section 120B of the Code and under section 27 of the Arms Act had been proved against appellant Arnit Das and sentenced him to death under section 302 of the Code which has invited Death Reference no. 3 of 2001, further sentencing him to imprisonment for life for the other two offences under the Code and to rigorous imprisonment for seven years under section 27 of the Arms Act. Appellant Sidharth, having been convicted under sections 302 read with section 34 of the Code, 302 read with section 109 of the Code was sentenced to imprisonment for life for all those offences. Appellant Rohan Prakash was convicted under section 302 read with section 34 of the Code and under section 302 read with section 120B of the Code and was sentenced to imprisonment for life on both the counts. The sentences were to run concurrently.
3. Besides the Death Reference, all the three appellants having filed, separately, appeals, the Death Reference and the appeals have been heard together and this judgment will dispose of all those.
4. Coming to the first information report registered on the statement of appellant Rohan Prakash, the facts narrated therein in brief were that Rohan Prakash, Abhishek, the deceased, Shweta, and Anvesha used to take tuition at the residence of Prof. J. C. Banerjee from 5.00 to 6.00 P.M. and again from 7.00 to 8.00 P.M. From 6.00 to 7.00 RM., Pallavi alone used to take tuition there. On the fateful day he and the deceased, who was a student of Patna Science College, had come to take tuition at about 7.00 P.M., Pallavi also sitting there, when at 7.15 P.M. Rekha Banerjee, wife of the Professor came (inside) and informed that a friend of Abhishek was calling him at which Abhishek went outside, followed by Rohan Prakash who went to the front of the door to see as to who was calling. The informant also gave description of the person who had called Abhishek with whom Abhishek went out of the gate and proceeded on road no.8 of the same mohalla. After three to four minutes Rohan heard a sound of firing and the shouts of Mrs. Rekha Banerjee that shot had been fired. By the time Rohan Prakash came out of the room he heard a second sound of firing and when he opened the gate of the compound, Smt. Rekha Benerjee gripped his hand and advised him not go out as he also could be killed, but Rohan Prakash got his hand released and came out of the compound and saw that the assailant was making good his escape on a bicycle. He saw Abhishek lying prostrate on the ground with blood coming out, and then he took the injured in his lap. He saw a maruti car coming, belonging to Dr. Neel Kamal (father of Pallavi) on which car Abhishek was taken to his house in the same mohalla on road no.6 where Rohan Prakash narrated the incident to Dr. Ajit Singh, father of the deceased whereafter they brought the injured on the car to Shahi Clinic at road no.2 of thf same mohalla where treatment of Abhishek started. Rohan Prakash also revealed in the first information report that Abhishek had told him earlier that he was threatened by so
