Holding

A voluntary, unretracted confession recorded under Section 164 CrPC, when corroborated by independent circumstantial evidence, is sufficient for conviction, but the death penalty is not warranted and must be commuted to life imprisonment.

Summary

The appellants, Bishnu Prasad Sinha and a co‑accused, were convicted of raping and murdering a 7‑8‑year‑old girl who was staying overnight in a travel agency’s waiting room. The prosecution’s case rested on the night watchman’s voluntary confession recorded under Section 164 of the CrPC, corroborated by circumstantial evidence such as the watchman’s control of the locked premises, injuries and stained clothing of the co‑accused, and their admissions under Section 313. The Supreme Court held that the unretracted confession was admissible, that a co‑accused’s confession can be used as corroborative evidence under Section 30 of the Evidence Act, and that conviction on circumstantial evidence is permissible. However, because the conviction was based on circumstantial evidence and the principal offender showed remorse, the death penalty was deemed inappropriate and was commuted to rigorous imprisonment for life, with the rest of the sentence unchanged. The appeal was dismissed.

Issues considered

The admissibility and evidentiary value of a voluntary, unretracted confession recorded under Section 164 CrPC.
The permissibility of using a co‑accused’s confession as corroborative evidence under Section 30 of the Evidence Act.
Whether conviction can be sustained solely on circumstantial evidence.
The appropriateness of the death penalty where the offence is proved by circumstantial evidence and the accused shows remorse.
The impact of investigative lapses on the validity of the conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 313
Indian Evidence Act, 1872s. 30, s. 8
Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 376(2)(g)

Subjects

rapemurdercircumstantial evidenceconfessiondeath penaltylife imprisonmentIndian Evidence ActCriminal Procedure CodeSection 164Section 313Section 30Section 8remorse

Judgment

A BISHNU PRASAD SINHA & ANR.
v.
STATE OF ASSAM

jANUARY 16, 2007

B [S.B.SINHA AND MARKANDEY KA TJU, JJ.]

Penal Code, 1860: Sections 376(2)(g), 302 and 201134.

Rape and murder-No eyewitnesses-Circumstantial evidence-
c Conviction based upon-Punishment of death sentence-Permissibility
of-The deceased, a young girl aged 7 to 8 years, was travelling with her
parents and younger brother in a private transport service-Accused No.
I, the night chawkidar, advised them to stay in the waiting room of the
travel complex for the night-At that time a bus arrived at the said Travel
Comp/ex-Accused No. 2 was the 'handyman' of the said bus-While the
D Manager, Driver and the Conductor slept in the said bus, he did not-He
was seen talking with the accused No. I-The mother of the deceased slept
for a while but woke up as her son had cried out-She did not find the
deceased child-On opening the septic tank the head of a small child was
found-During the course of investigation, the accused No. I made a
E confessional statement before the Magistrate-He gave a vivid description
as to how the offence was committed by him and the accused No. 2-The
accused persons were convicted and sentenced to death-High Court
affirmed the conviction-Validity of-Held: Accused No. I's involvement in
the .offence stands proved beyond all reasonable doubts-Apart from his
F conduct, his confessional statement is a clear pointer to his guilt-
Appellant No. 2's involvement is also proved-Their conduct, in particular
the conduct of the accused No. I, is admissible under S. 8 of the Evidence
Act-Conviction can be based solely on circumstantial evidence-The
accused had rightly been found guilty of committing the offence-If the
offence is proved by circumstantial evidence, ordinarily, death penalty
G would not be awarded-Moreover, the accused No. I felt repentant while ......
·.
making his statement under S. 313 Cr.P.C. - Hence, death sentence
modified to rigorous imprisonment for life-Criminal Procedure Code, :
1973, S. 313-Evidence Act, 1872, S. 30.

H According to the prosecution, the deceased, a young girl aged 7 to 8
916
f

BISHNU PRASAD SINHA & ANR. v. STATE 917
...,
.. years, was travelling with her parents and younger brother in a private A
transport service. They reached the Travel Complex and were advised to
stay over for the night. Appellant No. 1 was a night chawkidar of the waiting
room of the said Travel Complex. He represented that they could stay there
for the night and, therefore, should not have any apprehension in regard
to their safety.
B
1 The family went out for dinner and came back to the said waiting
room. The father and both his children slept. The mother of the deceased,
however, kept on sitting. Appellant No. 1 insisted on her repeatedly that she
should go to sleep stating that as the waiting room would be locked, there
was nothing for her to worry about. As she had not been sleeping, the c
appellant No. 1, allegedly, scolded her to do so. At that time a bus arrived
at the said Travel Complex. Appellant No. 2 was the 'handyman' of the said
bus. While the Manager, Driver and the Conductor slept in the said bus,
he did not. He was seen talking with the appellant No. 1.

The mother of the deceased slept for a while but woke up as her son
D
-I
had cried out. She did not find the deceased child. PW-2, the cashier of the
transport service, was informed about the missing of the deceased. A
complaint was lodged at the police station. A complaint was made that the.
flush in the toilet was not working. PW-7 was asked by PW-2 to find out
the reason therefor. He later on opened the septic tank and saw the head E
of a small child. He immediately reported the matter to PW-1 as well as
PW-2.

In the First Information Report, apart from the appellant No. 1,
suspicion was raised about the involvement of the driver, conductor and the F
,)
'handyman' (appellant No. 2) of the bus.

During the course of investigation, the appellant No. 1 made a
confessional statement before the Magistrate under Section 164 of the
Code of Criminal Procedure, 1973. He gave a vivid description as to how
the offence was committed by him and the appellant No. 2. G

.. The appellants were charged with and convicted for commission of
offences under Sections 376(2)(g), 302 and 201 read with Section 34 of the
Penal Code, 1869 and sentenced to death. The High Court affirmed the
conviction and sentence. Hence the appeal. H
918 SUPREME COURT REPORTS [2007] I S.C.R.

A . Dismissing the appeal, the Court

HELD: 1. A confessional statement is admissible in evidence. It is a
relevant fact. The Court may rely thereupon ifit is voluntarily given. It may
also form the basis of the conviction, where for the Court may only have
to satisfy itself in regard to voluntariness and truthfulness thereof and in
B 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 of Criminal . Procedure, 1973
can be fully relied upon. (Para 33] [929-G-H, 930-A)

C 2.1. Confession would not ordinarily be considered the basis for a
conviction. However, 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 35) (931-D-E)

D 2.2. It is well settled that statements under Section 313 of the Code
of Criminal Procedure cannot form the sole basis of conviction, but the
effect thereof may be considered in the light of other evidences brought on
record. (Para 36] (931-F]

E Mohan Singh v. Prem Singh, [2002] 10 SCC 236; State of U.P. v.
Lakshmi, (1998) 4 SCC 336; Rattan Singh v. State of HP, (1997] 4 SCC
161; A/oke Nath Dutta v. State of West Bengal, (2006) 13 SCALE 161;
State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SS 600
and Sidharth v. State of Bihar, (2005] 12 SCC 545, relied on.
F 2.3. 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 40] (934-F-G)
G
State of Tamil Nadu v. Kutty @ Lakshmi Narsimhan, [2001) 6 SCC
550; Bhagwan Singh v. State of MP., (2003] 3 SCC 21 and Sarwan Singh
Rattan Singh v. State of Punjab, (1957) SCR 953, relied on. <

H 3. The fact that the appellants were seen talking to each other,
BISHNU PRASAD SINHA & ANR. v. STATE 919

absence of the appellant No. 2 from the bus in question, his effort to sleep A
in another bus leaving his own bus, his absence for about 1 to 1Yi hour,
injury/stains on his face and change of his garments during that period,
all stand well proved. They lend corroboration to the prosecution case as
also the judicial confession made by the appellant No. 1. Indeed corroboration
to the said confession and the circumstantial evidences can also be judged
from the statements made by the appellant No. 2 in the examination under
B
J Section 313 of the Code of Criminal Procedure. [Para 41) [935-A-B]

4.1. Indisputably, Section 30 of the Indian Evidence Act, 1872, in
a situation of the present nature, can be taken aid of. The courts below
did take into consideration the confessional effect of the statements C
made by the appellant No. 1 as against the appellant No. 2 for arriving
at an opinion that by reason thereof involvement of both of them amply
stand proved. [Para 43) [936-E-F]

4.2. The expression 'the court may take into consideration such D
.,)
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 the absence of any substantive evidence, no
judgment of conviction can be recorded only on the basis of the confession
ofa co-accused, be it extra-judicial confession or a judicial confession and
least of all on the basis of retracted confession. [Para 44] [936-F-G]
E

State of MP. through CBI v. Paltan Mallah, [2005) 3 SCC 169,
Sidharth v. State of Bihar, [2005) 12 SCC 545; Ram Prakash v. The State
of Punjab, [1959] SCR 1219; State (NCT of Delhij v. Navjot Sandhu @
Afsan Guru, (2005) 11 SS 600 and Jaswant Gir v. State of Punjab, [2005] F
12 sec 438, relied on.

5. Both the appellants had accepted their presence at the place
of occurrence. Appellant No. 2 had accepted that there were injuries on
his face. He also accepted that there were stains in his seized G
undergarment. [Para 46] [938-C-D]

6. Indisputably, the investigation was done in a slipshod manner. The
undergarments should have been sent for chemical analysis. Even the urine
and blood samples, which were taken, allegedly, have been sent for their H
920 SUPREME COURT REPORTS [2007] l S.C.R.

A analysis in the Forensic Laboratory. According to the Investigating Officer,
the report was placed on records. It, however, was not marked as exhibit.
Apart from the Investigating Officer, indeed the Public Prosecutor was
remiss in performing his duties. (Para 48] (938-F-GJ

7. It is settled that the conviction can be based solely on the
B circumstantial evidence, but it should be tested by the touchstone of law
relating thereto. (Para 52) (939-E] ~

Hanumant Govind Nargundkar v. State of MP., AIR (1952) SC 343
and Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116,
c relied on.

8. Appellant No. l's involvement in the offence stands proved beyond
all reasonable doubts. Apart from his conduct, his confessional statement,
which is admissible in evidence under Section 164 of the Code of Criminal
Procedure, is a clear pointer to his guilt. Appellant No. 2's involvement is
D 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. The appellants had rightly been found
guilty of committing the offence. [Para 53] [940-B-C]

E 9. 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 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 ifthe offence is proved by circumstantial
F l.,
evidence, ordinarily, death penalty would not be awarded. Moreover, the
appellant No. l showed his remorse and repentance even in his statement
under Section 313 of the Code of Criminal Procedure. He accepted his
guilt. [Para 54) [940-C-E)

G State of Rajasthan v. Kheraj Ram, [2003) 8 SCC 224; State of MP.
v. Munna Choubey, [2005] 2 SCC 710; Sahdeo v. State of UP., (2004] 10
SCC 684; Amrit Singh v. State of Punjab, (2006) AIR SCW 5712; Sheikh
Ishaque v. State ofBihar, (1995) 3 SCC 392; Rony v. State of Maharashtra,
[1998] 3 SCC 625, Bachan Singh v. State of Punjab, [1980] 2 SCC 684
H and Machhi Singh v. State of Punjab, (1998) 3 sec 470, referred to.
{.._
f

BISHNU PRASAD SINHA & ANR. v. STATE [SINHA, J.] 921
...,
10. There is another aspect of this matter which cannot be overlooked. A
Appellant No. 1 made a confession. He felt repentant not only while making
the confessional statement before the Judicial Magistrate, but also before
the Sessions Judge in his statement under Section 313 of the Code of
Criminal Procedure. [Para 62] [945-C]

11. It is, therefore, not a case where extreme death penalty should be B
imposed. 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 the sentence
imposed by the Sessions Judge are maintained. [Para 63] [945-D-E] C
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 453 of
2006.

From the Judgment and Order dated 31-8-2005 of the High Court of
Gauhati in Criminal Death Reference No. 1/2005 with Crl. A. No. 20(1) of D
2005.

Vibha Datta Makhija for the Appellant.

Ng. Junior Luwang, Minakshi Shanna and Krishna Shanna (for Mis.
Corporate Law Group) for the Respondent. E

The Judgment of the Court was delivered by

S.B. SINHA, J. : 1. Appellants were charged with and convicted for

- commission of offences under Sections 376(2)(g), 302 and 201 read with
Section 34 of the Indian Penal Code, 1860 for rape and murder of one Bamali
Deb@ Poppy (the deceased), a 7-8 year old girl. She was travelling with her
F

parents - Bishnu Deb (father-PW 23), Anima Deb (mother-PW 22) and
younger brother in a private transport service known as Net Work Travels
from Dharmanagar (Tripura). They were on their way to Dimapur in the State
of Nagaland. They reached Net Work Travels' Complex at Paltan Bazar, G
Guwahati at around 10.30 p.m. on 12.7.2002. There was no connecting bus
to Dimapur at that time. They were advised to stay over for the night at
Guwahati. Appellant No. l was a night chawkidar of the waiting room of the
said Net Work Travels. He represented that they could stay there for the
night and therefore should not have any apprehension in regard to their H
922 SUPREME COURT REPORTS (2007) I S.C.R.

A safety. Their luggage was carried by the appellant No. I to the waiting room.
The waiting room had two openings. It was covered by grills. Only the front
gate was open, which was kept under lock and key, the key whereof was
with the appellant No. I.

2. The family of PW 23 went out for dinner and came back to the said
B waiting room. He and both his children slept. Anima Deb (PW 22), mother
of the deceased, however, kept on sitting. Appellant No. l insisted on her
repeatedly that she should go to sleep stating that as the waiting room
would be locked, there was nothing for her to worry about. As she had not
been sleeping, the appellant No.I, allegedly, scolded her to do so. At that
c time, a bus bearing No.AS-25-C-1476 arrived at the said bus stop. Putul Bora
- Appellant No.2 was the 'handiman' of the said bus. While the Manager,
Driver and the Conductor slept in the said bus, he did not. He was seen
talking with the appellant No. I.

3. Anima Deb-PW 22 slept for a while. As her son had cried out, she
D woke up at about 3 p.m. She did not find Barnali. A hue and cry was raised
by her. Being attracted by her alarm, Bishnu Deb-PW 23 also woke up. They
requested the appellant No.I to open the gates of the waiting room. He
showed his reluctance at the first instance. He was thereafter told about the
missing of the girl. On being so informed, he opined that she might be
E somewhere else within the room. A search was carried out in the three
buses, which were at the bus stop belonging to the travel agency. Near-
about places as also the railway station were searched. The bathroom
situated in the said premises was also searched.

4. Shri Kapil Kumar Paul-P.W.2, the Cashier of the Net Work Travels
F was informed about the missing of Bamali Deb. As the girl could not be
found despite vigorous search, Bishnu Deb, the father of the girl was
advised to inform the police. A missing entry was lodged before the Officer-
in-Charge of Paltan Bazar Police Station. At about 8.30 a.m. on 14.7.2002, a
complaint was made that the flush in the toilet was not working. P.W.7-Amar
G Deep Basfore (sweeper) was asked by P.W.2-Shri Kapil Kumar Paul to find
out the reason therefor. He later on opened the septic tank and saw the head
of a small child. He immediately reported the matter to P.W.1-Shri Bidhu
Kinkar Goswami as well as P. W.2-Shri Kapil Kumar Paul.

5. A First Information Report was lodged thereafter by Shri Bidhu
H Kinkar Goswami, the Manager of Net Work Travels. In the said First
BISHNU PRASAD SINHA & ANR. v. STATE [SINHA, J.] 923

Information Report, apart from the appellant No. l, suspicion was raised A
about the involvement of driver-Krishna Hazarika (P. W.26), conductor-Rama
Hazarika (P. W.25) and the handiman-Putul Bora (Appellant No.2 herein) of
the bus bearing No.AS-25-C-1476. The said bus had already left for its
destination at about 6.30 in the morning. Even prior thereto, P. W.2 was
persuaded that the said bus be pennitted to leave early for Jorhat, which was
declined. B

6. Pursuant to the said First Information Report, a case under Sections
376(2)(g) and 302 read with Section 34 of the Indian Penal Code, 1860 was
registered. A Magistrate was called. An inquest of the dead body was made.
The said bus was intercepted and the driver-P.W.26, conductor-P.W.25 and C
Appellant No.2-Putul Bora were arrested. They were brought to the police
station.

7. During the course of investigation, the appellant No.1 made a
confessional statement before the Magistrate under Section 164 of the Code
of Criminal Procedure, 1973 ('the Code' for short). He gave a vivid description D
)
as to how the offence was committed by him and the appellant No.2.

8. On completion of investigation, a charge-sheet was filed against the
appellants. They were convicted by the learned Sessions Judge, Karnrup
and sentenced to death. An appeal preferred by them, by reason of the E
impugned judgment, has been dismissed by the High Court.

9. The appellants are, thus before us.

10. At our request, Ms. Vibha Datta Makhija, learned counsel assisted
us as Amicus Curiae in the matter. F
11. Evidently, there was no eye-witness to the occurrence in this case.
Nobody had seen the appellants lifting the girl, committing rape and
murdering her. The entire prosecutio_n case is based on circumstantial
evidences. The circumstances, which found favour with the learned Sessions
Judge as also the High Court, are :- G
As against Appellant No. I :

(i) The confession of the appellant No. l recorded by Smt. Nirupama
Rajkumari, Judicial Magistrate, 1st Class at Guwahati (P.W.8).
H
·\
924 SUPREME COURT REPORTS [2007] l S.C.R.

A (ii) Appellant No. I was the night chawkidar of the Net Work Travel
Agency and the parents of the deceased girl along with their children were
persuaded to stay at the waiting room in the night

(iii) P.Ws. 22 and 23 (mother and father of the deceased) were prevailed
upon by the appellant No. I to spend the night in the waiting room. He had
B also carried their luggage assuring them full security and safety.
·•
(iv) The key of the waiting room was with him. Appellant No.I alone,
thus, had the access to the waiting room. He only had access to the entire
premises.
c
(v) P.W.22-Anima Deb saw both the appellants held discussion in
suspicious circumstances.

(vi) Despite the information that Bamali was missing, the appellant
No. I showed his reluctance to open the door. On the contrary, P. Ws.22 and
D 23 were told that she might be somewhere else in the room.

(vii) The evidences brought on records go to show that the appellant
No. I had a nefarious plan.

E (viii) A black coloured half pant belonging to the appellant No. I was
seized by the police (Exhibit 3).

(ix) No explanation was offered by him as to how the said half pant
could be found there. It was admitted it belonged to him.
F
As against Appellant No.2 :

(i) He was the handiman of the bus bearing No.AS-25-C-1476.

(ii) The evidences of P.Ws. 22, 23 and 26 clearly point out that he held
G some discussions with the appellant No. I.

(iii) Although, he had made preparations to sleep in the bus, in which
he was travelling, but, in fact, slept in different bus bearing No.AS- l-G-5990.
No satisfactory explanation was offered by him to a question put in that
H behalf by P. W.4-Shri Jams Brown, conductor of said bus.
~
(

BISHNU PRASAD SINHA &ANR. v. STATE [SINHA, J.] 925

(iv) P.W.3-Shri Kamal Goswami, Manager of the Travel Agency, at A
about 2/2.30 p.m. had suddenly felt some touch on his leg. He found the
appellant No.2 climbing the upper bunker of the vehicle. He was wearing a
long pant, although during his journey he was wearing only a jangia.

(v) While the missing girl was searched, the appellant No.2 was found
to have sustained some injuries on his face, although, no such injury/stain B
was noticed by P.W.3 while they were coming from Nagaon to Guwahati,
which showed that the girl offered resistance before being raped.

(vi) A brown coloured jangia belonging to him was recovered, which
was having some white stains. c
(vii) He made constant pressure on P. W.2-Shri Kapil Kumar Paul to
allow him to leave Paltan Bazar bus stand with his vehicle.

12. Ms. Vibha Datta Makhija, learned Amicus Curiae, in support of the
D
)
appellants would submit :

(a) There are many missing links in the chain which have not been
appreciated by the courts below in their proper perspective.

b) Seizure of the under garments of the appellants is not free from E
doubt as the seizure witnesses clearly stated that they had visited police
station at different points of time and thi..s, they could not be witnesses to
seizure;

(c) The under garments, which were purported to have seized, had not p
been sent for chemical examination and thus, inference drawn by the courts
below that white stains were semen stains, had not been established.

(d) Although, urine and blood samples of the appellants were taken,
the same having not been sent for chemical analysis, an adverse inference
in this behalf should be drawn against the prosecution. G

(e) In the vaginal swap obtained by the doctor, no semen was found.
The Forensic Science Laboratory Report was not brought on record and
thus, deliberate withholding of material must be held to have weakened the
prosecution case. H
-+
\

926 SUPREME COURT REPORTS [2007) I S.C.R.

A (f) Although, the appellant No. I had t~e key of the lock, the possibility
of some co-passengers committing the said offence cannot be ruled out.

(g) The testimony of mother of the deceased is not reliable as she had
omitted to make statements as regards the purport conduct of the appellants
before the police.
B
(h) No reliance can be placed on the confession of the appellant No. I
as he had remained in police custody for a long time.

(i) Evidence ofSmt. Nirupama Rajkumari, the Judicial Magistrate (P. W.8)
does not show that all statutory requirements in recording the said confession
c had been carried out.

13. Mr. Ng. Junior Luwang, learned counsel appearing on behalf of the
respondent, on the other hand, would submit :

D (i) Confession of the appellant No.1 itself was sufficient to uphold the
judgment of conviction and sentence of both the appellants;

(ii) The depositions of the prosecution witnesses clearly suggest that
offence had been committed between I p.m. to 3 p.m.;

E (iii) The conduct of Appellant No. I clearly goes to show that he had
committed the offence;

(iv) Appellant No.2's admitted presence at the spot, his absence from
the bus for some time, coupled with the injuries on his face, clearly point
out that he had also taken part in commission of the said offence.
F
14. We may, at the outset, place on record that this is one of the rare
cases where the witnesses examined on behalf of the prosecution, inter alia,
were the employees of the company where the appellants had also been
working.
G I5. The presence of the appellants at the place of occurrence on the
said night is not in dispute.

16. Appellant No.I was the chawkidar of the waiting room ofNet Work
Travels and he was the only person who had the key, and without his
H knowledge nobody could have entered into the waiting room.
BISHNU PRASAD SINHA & ANR v. STATE [SINHA, J.] <J27

17. The waiting room was otherwise secure, having grills and collapsible A
gates. The second collapsible gate was also closed.

18. The bathroom as also the latrine were situated within the said
premises.

19. The family came back to the waiting room after 10.30 p.m. The girl B
was found missing at about 3 O'clock. A search of the deceased was
commenced. She was not found not only within the premises of the waiting
room but also other nearby places.

20. The buses belonging to other travel agencies were also searched.
A search was carried out even at the railway station. c
21. The bus bearing No.AS-25-C-1476, in which the appellant No.2 was
working as a handiman, left at about 6.30 a.m. for Jorhat.

22. The dead body was detected at about 9 a.m.
D
23. The Manager of the Net Work Travels himself lodged the First
Information Report suspecting the appellant No. l as also the driver,
conductor and the handiman of the bus bearing No.AS-25-C-1476, as having
committed the offence.

24. The said bus was intercepted at about 10 a.m. and they were
E
brought to the police station.

25. P.W.22-the mother of the victim saw the appellants herein talking
to each other. According to her she was goaded to go to sleep; she was
even threatened. F
26. Appellant No.2 did not have any injury on his face earlier. Shri
Kamal Goswami, the Manager of the Net Work Travels, who had travelled
with the appellant No.2 in the same bus, in no uncertain tenns stated that
while he went to sleep, at about 2/2.30 p.m. he suddenly felt a touch on his
leg and found the appellant No.2 moving to the upper bunker of the said G
vehicle. He had been wearing a long pant, although he had been wearing
only a jangia while traveling from Nagaon to Guwahati. He had heard that
' , the couple and the children were staying in the waiting room having missed
their bus to Dimapur as also in regard to the searches carried out for tracing
the missing girl. H
928 SUPREME COURT REPORTS [2007] 1 S.C.R.

A 27. He also deposed to the effect that although the appellant No.2 had
some injuries on his face, he had not offered any explanation therefor. He
is also a witness to the seizure of the under pants. Apparently, there is no
reason to disbelieve his statement, particularly when both the appellants in
their examination under Section 313 of the Code have accepted their
presence. Appellant No.2 at no point of time, even during his examination
B under Section 313 of the Code, could offer any suitable explanation in regard
to the stains/injuries on his face.

28. Shri Krishna Hazarika, the driver of the bus, examined himself as
P.W.26. He proved that the appellant No.2 was seen to be gossiping with
C the appellant No. l inside the complex of Net Work Travels. He proved the
fact that a search was carried out in regard to the missing of Bamali. He also
spoke about the seizure of the under pants containing some stains. This
witness categorically stated that when they had gone to sleep, the appellant
No.2 was not seen. On the aforementioned aspects he was not even cross-
examined.
D
29. P.W.4 Shri Jams Brown was the conductor of bus bearing No.AS-
1-G-5990. Apart from corroborating the prosecution case in regard to the
commotion emanating from the missing of the deceased, he had stated that
after the missing girl was searched, the appellant No.2 came into his bus.
E On being questioned, he had reported that he came from bus bearing No.AS-
25-C- l 4 76 for sleeping.

30. We have noticed hereinbefore that the parents of the deceased girl
(P.Ws.22 and 23) stated in details as to under what circumstances they had
F to stay in the waiting room. The Cashier of the Net Work Travels Shri Kapil
Kumar Paul, who examined himself as P. W.2, apart from his statements which
have been noticed hereinbefore, categorically stated that the appellant No.2,
together with the driver and conductor of the bus bearing No.AS-25-C-1476
persuaded pressed him to allow the bus to leave for Jorhat earlier than the
scheduled time, and he refUsed to accede to their request. It is only because
G of their conduct he suspected their involvement in the crime. This witness
also categorically stated that lock and key of the waiting room would always
be with the chawkidar.

31. We may now consider the manner in which the confessional
H statement made by the appellant No. I was recorded. He was admittedly
,.
,
BISHNU PRASAD SINHA & ANR. v. STATE [SINHA, J.] 929

brought to the Court of Smt. Nirupama Rajkumari, the Judicial Magistrate, A
1st Class at Guwahati (P.W.8), for getting his statement recorded on
24.7.2002. The voluntariness and truthfulness of the confession is not in
dispute. Appellant No.] was produced before P. W.8 in her official Chamber
at about 4.45 p.m. He was warned that the confession made by him might
be used in evidence against him. She recorded the confessional statement
of the appellant No.1 being satisfied as regards the voluntariness thereof. B
The said confessional statement reads as follows :
7
"I am the night watchman of the Paltan Bazar counter
of Network travels. On 13/7/02 I was on duty at the counter.
Around 10.30 that night a bus arrived from Dharmanagar. Some C
passengers : from that bus came and requested me to allow them
to stay at the counter for the night. The group comprised a man,
two women a girl of about 8 or 9 and a child of about 3 or 4. I
allowed them to sleep at the counter. Around 1.30 am one 'NR
Super' bus (No.1476) arrived from Jorhat and its staff slept in the D
bus itself. Around 2 a.m. Putul Bora, handyman of the N.R. Super
bus got down from the bus and came to me. Then I proposed to
Putul Bora rape of the said 8 or 9 year old girl sleeping at the
counter. According to my plan I and Putul Bora lifted the said 8 or
9 year girl in her sleep and in the bathroom at the counter, we raped
her, first me and then Putul Bora. As the girl was asleep, she did E
not shout. After having raped her, we found the girl still. Then I
and Putul Bora opened the lid of the septic tank of the lavatory at
the counter, put the girl inside the septic tank and closed the lid.
Then I left for my duty and Putul Bora went back to the bus and
slept there." F

32. 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.

33. A confessional statement, as is well known, is admissible in G
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 H
930 SUPREME COURT REPORTS [2007] 1 S.C.R.

A accepted by the accused in his examination under Section 313 of the Code,
in our considered opinion, can be fully relied upon.

34. In this case, not only the confession had not been retracted, the
appellant No. I in his examination under Section 313 of the Code accepted
the same, as would be evident from the following questions and answers :
B
"Q.No.41 : It is also in her .evidence that on your production, the
Magistrate asked you whether you were willing to give a ~-

confessional statement of guilt. What is your say?
Ans : The Magistrate asked me whether I was willing to make
c confessional statement. I wanted to give my confessional statement
)
as I committed the offence. ·

Q.No.42 : It is also in her evidence that she made you understand
that you are not bound to make confessional statement, the
confession so to be made would go against you, that she was not
D
a police ·man but a magistrate. What is your say?
Ans : The Magistrate did explain me the above fact to me and
consulted the same carefully about the result of such confession.

Q.No.43 : It is also in her evidence that you were put in the charge
E in the office peon in her chamber (office) at 1.30 PM you were
produced and then again at 4.45 PM for recording your statement.
Ans : Yes, I was produced before her.

Q.No.44 : It is also in her evidence that at your production again
F she again explained to you the import of confession and you
expressed your willingness to give confessional statement. What is
your say?
Ans : Yes I, expressed my willingness to give confessional statement.
I understand her all questions (sic) put to me.
G
Q.No.45 : It is also in her evidence that inspite of repeated caution
you were sanguine to give a confessional statement about your
guilt. What is your say?
Ans : I was sanguine to given confessional statement because I
was repenting to my misdeed that I did.
-
H
BISHNU PRASADSINHA&ANR. v. STATE[SINHA,J.] 931

Q.No.46 : It is also in her evidence that you voluntarily gave A
confessional statement, what is your say?
Ans. : Yes, I voluntarily gave my confessional statement because
I comrp.itted the offence. I am guilty of the offence.

Q.No.47 : It is also in her evidence that she recorded your
B
confessional statement and the statement was readover to you and
put your signatures having found the same as correct. What is
your say?
Ans : Yes, my confessional statement was recorded by the
Magistrate. The confessional statement so recorded was not read
over to me. I put my signature in the confessional statement. c
Q.No.48 : It is also in her evidence that Ext.IO is the confessional
statement recorded by her wherein Ext.10(7) to 10(8) and 10(9) are
my signatures and Ext.I 0(1) to I 0(6) are her signatures. What is
your say? D
Ans: Yes. Ext.10(7) to 10(9) are my signatures."

35. 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 ca.ses
where an appellant had stuck to his own confessional statements. He did E
not make any attempt to retract. He even did not state that it was not truthful
or involuntary.

36. It is well settled that statements under Section 313 of the Code of
Criminal Procedure, cannot fonn the sole basis of conviction; but the effect F
thereof may be considered in the light of oftier evidences brought on record.
[See Mohan Singh v. Prem Singh, [2002] 10 SCC 236, State of UP v.
Lakhmi, [1998] 4 SCC 336 and Rattan Singh v. State of HP, [1997] 4 SCC
161]

G
37. In Aloke Nath Dutta & Ors. v. State of West Bengal, [2006] 13
SCALE 467], this Court noticed the law in regard to the effect of a
confessional statement of the accused in the following terms :

"Sections 24 to 30 deal with confession. Section 24 speaks of
the effect of a confession made by an accused through inducement, H
932 SUPREME COURT REPORTS [2007] I S.C.R.

A threat or promise proceeding from a 'person in authority'. Whereas
section 25 and section 26 deal with situations where such 'person
in authority' is police. It is an institutionalized presumption against
confession extracted by police or in police custody. In that frame
of reference, Section 24 is the genus and sections 25 and 26 are its
species. In other words, sec.tion 25 and section 26 are simple
B corollaries flowing out of the axiomatic and generalized proposition
(confession caused by inducement where inducement proceeds
from a person in authority, is bad in law) contained in section 24.
They are directed towards assessing the value of a confession
made to a police officer or in police custody.
c
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
D
Section 24 and, therefore, inadmissible, except so far as is provided
by Section 27 of the Act.

Section 164, however, makes the confession before a Magistrate
admissible in evidence. The manner in which such confession is to
E 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
F 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. [See
G Babubhai Udesinh Parmar v. State of Gujarat, [2006] 12 SCALE
385].

In a case, where confession is made in the presence of a
Magistrate conforming the requirements of Section 164, if it is
H retracted at a later stage, the court in our opinion, should probe
BISHNU PRASAD SINHA&ANR. v. STATE [SINHA, J.] 933

deeper into the matter. Despite procedural safeguards contained in A
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.
B
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 c
voluntary and had not been by reason of any inducement, threat
or torture."

It was further opined :

"In a case of retracted confession, the courts while arriving at D
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."

38. In State (N.c:r. of Delhi) v. Navjot Sandhu @Afsan Guru, [2005] E
11 SS 600, this Court stated :

"As to what should be the legal approach of the court called
upon to convict a person primarily in the light of the confession
or a retracted confession has been succinctly summarised in Bharat
F
v. State ofU.P. Hidayatullah, C.J., speaking for a three-Judge Bench
observed thus: (SCC p. 953, para 7)

"Confessions can be acted upon if the court is satisfied that
they are voluntary and that they are true. The voluntary
nature of the confession depends upon whether there was G
any threat, inducement or promise and its truth is judged in
the context of the entire prosecution case. The confession
must fit into the proved facts and not run counter to them.
When the voluntary character of the confession and its truth
are accepted, it is safe to rely on it. Indeed a confession, if
H
934 SUPREME COURT REPORTS [2007] I S.C.R.

A it is voluntary and true and not made under any inducement \...

or threat or promise, is the most patent piece of evidence
against the maker. Retracted confession, however, stands on
a slightly different footing. As the Privy Council once stated,
in India it is the rule to find a confession and to find it
retracted later. A court may take into account the retracted
B confession, but it must look for the reasons for the making of
the confession as well as for its retraction, and must weigh the
;.
two to determine whether the retraction affects the voluntary
nature of the confession or not. If the court is satisfied that
it was retracted because of an afterthought or advice, the
c retraction may not weigh with the court if the general facts
proved in the case and the tenor of the confession as made
and the circumstances of its making and withdrawal warrant
its user. All the same, the courts do not act upon the retracted
confession without finding assurance from some other sources
as to the guilt of the accused. Therefore, it can be stated that
D a true confession made voluntarily may be acted upon with
slight evidence to corroborate it, but a retracted confession
requires the general assurance that the retraction was an
afterthought and that the earlier statement was true ... "

39. We may also notice that in Sidharth & Ors. v. State ofBihar, [2005]
E
12 SCC 545, this Court opined :

"The confession made by the appellant Amit Das is voluntary
and is fully corroborated by the above items of evidence. The
Sessions Judge was perfectly justified in relying on the confession
F made by the appellant Amit Das."

40. 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. {See
G State of Tamil Nadu v. Kutty@ Lakshmi Narsimhan, [2001] 6 SCC 550;
Bhagwan Singh v. State ofMP., [2003] 3 SCC 21; and Sarwan Singh Rattan
Singh v. State of Punjab, [1957] SCR 953.}
/
41. We have analysed at some length the corroborative nature of
evidences brought on records by the prosecution. The fact that the appellants
H
BISHNU PRASADSINHA&ANR. v. STATE[SINHA,J.) 935

were seen talking to each other, absence of the appellant No.2 from the bus A
in question, his effort to sleep in another bus leaving his own bus, his
absence for about 1 to 1Y:z 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. l. Indeed corroboration to the said confession and
the circumstantial evidences as noticed hereinbefore can also be judged B
from the statements made by the appellant No.2 in his examination under
Section 313 of the Code of Criminal Procedure.

42. The relevant questions and answers thereunder are as follows :
c
"Q.14 : Was the other accused, the watchman, present that
night?
Ans : It is true the other accused, the watchman, was there.

Q.19 : Did your bus, i.e. bus No.AS-25-C-1476, start from
... Jorhat in the morning?
D
Ans : That is true.

Q.25 : Where you there in the Network travels compound that
night with the vehicle?
Ans : That is true. E

Q.32 : The witness say stains on your face and when he asked
you about, you could not say anything. You had no stains in
your face when you had come from Nagaon?
Ans : That is true. F
Q.33 : By ext.6 the police seized the underpants you were
wearing which had white stains on it. Ext 6(1) is the signature
of the witness. What is your statement?
Ans : That is true. G
Q.34 : Witness No.4 has stated that on the night of occurrence
he was the Conductor of bus No.AS-106-5996 and that you
were on the campus. Is that true?
Ans : That is true.
H
-,

936 SUPREME COURT REPORTS [2007] I S.C.R.

A Q.36 : Witness No.5 has stated that he is the owner of bus
No.AS-25-C-1476; that the manager informed him over
telephone that a girl had gone missing from the waiting room
of Network travels; that he then came and went to Paltan
Bazar police station; and that the police seized your
undergarments. rs that true?
B
Ans : That is true.
',

Q.42 : Witness No.9 he stated that in his presence Paltan
Bazar Police seized, by ext.6, your undergarments containing
white stains. What is your statement?
c Ans : That is true.

Q.84 : The following morning you and the driver and the
conductor started from Jorhat by that bus, and the police
seized the bus at Kahara with you all. Is that true?
D Ans : That is true.

Q.96 : Did the police seized your undergarments that had
white stains on it?
Ans : That is true."
E 43. Indisputably, .Section 30 of the Indian Evidence Act, 1872, in a
situation of the present nature, can be taken aid of. The courts below did
take into consideration the confessional effect of the statements made by
the appellant No. I as against the a'ppellant No.2 for arriving at an opinion
that by reason thereof involvement of both of them amply stand proved.
F
44. 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. Jn absence of any substantive evidence, no judgment of conviction
G 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.

45. The question has been considered in State of MP. through CBI &
Ors. v. Pa/tan Mal/ah & Ors., [2005] 3 SCC 169, stating :
H
(

BISHNU PRASAD SINHA & ANR. v. STATE [SINHA, J.] 937

" ..... Under Section 30 of the Evidence Act, the extra-judicial A
confession made by a co-accused could be admitted in evidence
only as a corroborative piece of evidence. In the absence of any
substantive evidence against these accused persons, the extra-
judicial confession allegedly made by the ninth accused loses its
significance and there cannot be any conviction based on such
extra-judicial confession."
B

In Sidhartha (supra), this Court held :

"It is true that the confession made by a co-accused shall not
be the sole basis for a conviction. This Court in Kashmira Singh C
v. State of MP. held that the confession of an accused person is
not evidence in the ordinary sense of the term as defined in Section
3. It cannot be made the foundation of a conviction and can only
be used in support of other evidence. The proper way is, first, to
marshal the evidence against the accused excluding the confession D
altogether from consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is capable of belief
independently of the confession, then of course it is not necessary
to call the confession in aid. But cases may arise where the judge
is not prepared to act on the other evidence as it stands, even
though, if believed, it would be sufficient to sustain a conviction. E
In such an event the judge may call in aid the confession and use
it to lend assurance to the other evidence and thus fortify himself
in believing what without the aid of the confession he would not
be prepared to accept."

- In Ram Parkash v. The State of Punjab, [1959] SCR 1219, it was
F
held:

"That a voluntary and true confession made by an accused
though it was subsequently retracted by him, can be taken into
consideration against a co-accused by virtue of s. 30 of the Indian
G
Evidence Act, but as a matter of prudence and practice the court
should not act upon it to sustain a conviction of the co-accused
without full and strong corroboration in material particulars both as
to the crime and as to his connection with that crime.
H
938 SUPREME COURT REPORTS [2007] l S.C.R.

A The amount of credibility to be attached to a retracted
confession would depend upon the circumstances of each particular
case."

It was further opined :

B "On the evidence m the case the confession of P was
voluntary and true and was strongly corroborated in material
particulars both concerning the general story told in the confession
concerning the crime and the appellant's connection with crime."

C {See also Navjot Sandhu (supra) and Jaswant Gir v. State of Punjab,
[2005] 12SCC438.}

46. Both the appellants had accepted their presence at the place of
occurrence. Appellant No.2 had accepted that there were injuries on his face.
He also accepted that there were stains in his seized undergarment.
D
47. Ms. Makhija may be correct in saying that all the witnesses to the
seizure are not truthful, but, apart from the Investigating Officer, seizure has ~
been proved by P.W.4 and P.W.26. They were themselves suspects; they
were brought to the police station. They must have been interrogated and
E if they were witnesses to the seizure, we do not find any reason as to why
we should completely ignore the seizure of the said undergarments,
particularly in regard to its relevance, vis-a-vis, the statement of the manager
of the bus that he had changed his dress within the probable time of
commission of the offence.
F
48. Indisputably, the investigation was done in a slipshod manner. The
.
undergarments should have been sent for chemical analysis. Even the urine
and blood samples, which were taken, allegedly, have been sent for their
analysis in the Forensic Laboratory. According to the Investigating Officer,
the report ~as placed on records. It, however, was not marked as exhibit.
G Apart from the Investigating Officer, indeed the Public Prosecutor was
remiss in performing his duties.

49. Submission of Ms. Makhija, that the possibility of the other
passenger committing the crime cannot be ruled out, in our opinion, is
H wholly misplaced. Some more passengers may be there in the waiting room,
/
~

BISHNU PRASAD SINHA & ANR. v. STATE [SINHA, J.] 939

but, they were found present at the time of search of the deceased girl. A
Evidently, they must have been found sleeping. If they had committed the
offence, some suspicious circumstances could have been found. They were
not suspected even by the parents of the deceased girl. Evidently, they
could not have gone out as the lock and key was with the appellant No. l.
Even no outsider would come in to commit the offence. The bathroom, where
the offence had been committed, measures 5 ft. x 5 ft. It was within the
B
-~-
locked premises. Only the septic tank was outside the premises, wherefrom
the dead body of Bamali was recovered.

50. There were two other small rooms. One was urinal for the passengers.
Another was the place of drinking water. Both were on the two sides of the c
said bathroom. Even the office room and the store room of the Net Work
Travels were within the enclosed premises. There was an office room of Air
India.

51. There were three buses, which were parked outside. Only because
six other persons were there in the bus, suspicion cannot be pointed out to
D
..,.
them.

52. It is settled that the conviction can be based solely on circumstantial
evidence, but it should be tested by the touchstone of law relating thereto
as laid down by this Court in Hanumant Govind Nargundkar v. State of E
MP., AIR (1952) SC 343. {See Sharad Birdhichand Sarda v. State of
Maharashtra, [1984] 4 SCC 116.}

In Hodge's case [168 ER 1136 at 1137], it was held:
F
"Alderson, B., told the jury, that the case was made up of
circumstances entirely; and that, before they could find the prisoner
guilty, they must be satisfied, "not only that those circumstances
were consistent with his having committed the act, but they must
also be satisfied that the facts were such as to be inconsistent with
any other rational conclusion than that the prisoner was the guilty G
person."

He then pointed out to them the proneness of the human mind
to look for - and often slightly to distort the facts in order to
establish such a proposition-forgetting that a single circumstance H
940 SUPREME COURT REPORTS [2007] I S.C.R

A which is inconsistent with such a conclusion, is of more importance ....
than all the rest, inasmuch as it destroys the hypothesis of guilt."

53. Appellant No.l'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
B 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.I, 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.
c 54. 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.
D 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. I showed his remorse and repentance even in
his statement under Section 313 of the Code of Criminal Procedure. He
accepted his guilt.

E 55. In State of Rajasthan v. Kheraj Ram, [2003] 8 SCC 224, this Court
has stated the law thus :

"In Machhi Singh v. State of Punjab, [1983] 3 SCC 470 it was
observed:

F The following questions may be asked and answered as a test
to determine the 'rarest of the rare' case in which death sentence
can be inflicted:

(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and calls for
G a death sentence?

(b) Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which speak in
H favour of the offender? (SCC p.489, para 39)
.,
~-!
BISHNUPRASADSINHA&ANR. v. STATE[SINHA, J.] 941

The following guidelines which emerge from Bachan Singh A
case (supra) will have to be applied to the facts of each individual
case where the question of imposition of death sentence arises:

(i) The extreme penalty of death need not be inflicted except
in gravest cases of extreme culpability.
B
(ii) Before opting for the death penalty the circumstances of
the "offender" also require to be taken into consideration along
with the circumstances of the "crime".

(iii) Life imprisonment is the rule and death sentence is an
exception. Death sentence must be imposed only when life
c
imprisonment appears to be an altogether inadequate punishment
having regard to the relevant circumstances of the crime, and
provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the D
relevant circumstances.

(iv) A balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so the mitigating
circumstances have to be accorded full weightage and a just
balance has to be struck between the aggravating and the mitigating
E
circumstances before the option is exercised. (SCC p.489, para 38)

In rarest of rare cases when collective conscience of the
community is so shocked that it will expect the holders of the

- judicial power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining
death penalty, death sentence can be awarded. The community may
F

entertain such sentiment in the foliowing circumstances:

(1) When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as to arouse G
intense and extreme indignation of the community. (SCC pp. 487-
• 88, paras 32-33)

(2) When the murder is committed for a motive which evinces
total depravity and meanness; e.g. murder by hired assassin for H
\_
942 SUPREME COURT REPORTS [2007] l S.C.R.

A money or reward or a cold-blooded murder for gains of a person
vis-a-vis whom the murderer is in a dominating position or in a
position of trust, or murder is committed in the course for betrayal
of the motherland. (SCC p.488, para 34)

(3) When murder of a member of a Scheduled Caste or minority
B community etc., is committed not for personal reasons but in
circumstances which arouse social wrath, or in cases of 'bride
burning' or 'dowry deaths' or when murder is committed in order '"
to remarry for the sake of extracting dowry once again or to marry
another woman on account of infatuation. (SCC p.488, para 35)
c
.I
#>II.

(4) When the crime is enormous in proportion. For instance
when multiple murders, say of all or almost all the members of a
family or a large number of persons ofa particular caste, community,
or locality, are committed. (SCC p.488, para 36)

D (5) When the victim of murder is an innocent child, or a ~

helpless woman or an old or infirm person or a person vis-a-vis
whom the murderer is in a dominating position or a public figure
generally loved and respected by the community. (SCC pp.488-89,
para 37)
E
If upon taking an overall global view of all the circumstances
in the light of the aforesaid propositions and taking into account
the answers to the questions posed by way of the test for the rarest
of rare cases, the circumstances of the case are such that death
F sentence is warranted, the court would proceed to do so. (SCC
p.489, para 40)"
..
56. In State of MP. v. Munna Choubey & Anr., [2005] 2 SCC 710, it
was observed as under :

.G "Therefore, undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine the public
confidence in the efficacy of law and society could not long endure I=
under such serious threats. It is, therefore, the duty of every court
to award proper sentence having regard to the nature of the offence
H and the manner in which it was executed or committed etc. This
1
I

..I
-~
BISHNU PRASAD SINHA&ANR. v. STATE [SINHA, J.] 943

position was illuminatingly stated by this Court in Sevaka Perumal A
V. State of Tamil Naidu, [1991] 3 sec 471."

57. In Sahdeo & Ors. v. State of UP, [2004] 10 SCC 682, this Court
opined :

"As regards the sentence of death imposed on five accused B
persons by the sessions court, which was confirmed by the
appellate court, the counsel for the appellants, Shri Sushi! Kumar
submitted that in the absence of clear and convincing evidence
regarding the complicity of the accused, these appellants could not
be visited with the death penalty, while the counsel for the State C
submitted that this is a ghastly incident in which eight persons
were done to death and the death penalty alone is the most
appropriate punishment to be imposed. Though it is proved that
there was an unlawful assembly and the common object of that
unlawful assembly was to kill the deceased persons, there is
D
another aspect of the matter inasmuch as there is no clear evidence
by the use of whose fire-arm all the six deceased persons died as
a result of firing in the bus. It is also pertinent to note that the
investigating agency failed to produce clear and distinct evidence
to prove the actual overt acts of each of the accused. The failure
to examine the driver and conductor of the bus, the failure to seize E
the bus and the absence of a proper 'mahzar', are all lapses on the
part of investigating agency. Moreover, the doctor who gave
evidence before the court was not properly cross-examined regarding
the nature of the injuries. Some more details could have been
collected as to how the incid~nt might have happened inside the F
bus These facts are pointed out to show that the firing may have
been caused by the assailants even while they were still standing
on the footboard of the bus and some of the appellants may not,
in fact, have had an occasion to use the fire-arm, though they fully
shared the common object of the unlawful assembly. Imposition of
the death penalty on each of the five appellants may not be G
justified under such circumstances. We take this view in view of
the peculiar circumstances of the case and it should not be
understood to mean that the accused persons are not to be
convicted under Section 302 read with Section 149 and the death
penalty cannot be imposed in the absence of various overt acts by H
I
\

944 SUPREME COURT REPORTS [2007] l S.C.R

A individual accused persons. In view of the nature and circumstances
of the case, we commute the death sentence imposed on A-1
Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10
Parvinder to imprisonment for life."

58. In Raju v. State of Haryana, [2001] 9 SCC 50, it has been opined
B by this Court :

"However, the next question is whether this would be a rarest
'""
of rare cases where extreme punishment of death is required to be
imposed. In the present case, from the confessional statement made
c by the accused, it would appear that there was no intention on the
part of the accused to commit the murder of the deceased child. He '
caused injury to the deceased by giving two brick blows as she
stated that she would disclose the incident at her house. It is true
that learned Sessions Judge committed error in recording the
evidence of SI Shakuntala, PW 15 with regard to the confessional
D statement made to her, but in any set of circumstances, the
~·
evidence on record discloses that the accused was not having an
intention to commit the murder of the girl who accompanied him.
On the spur of the moment without there being any premeditation,
he gave two brick blows which caused her death. There is nothing
E on record to indicate that the appellant was having any criminal
record nor can he be said to be a grave danger to the society at
large. In these circumstances, it would be difficult to hold that the
case of the appellant would be rarest of rare case justifying
imposition of death penalty."
F
59. Yet, recently in Amrit Singh v. State of Punjab, (2006) AIR SCW
5712. this Court, in a case where the death was not found to have been
intended to be caused, was of the opinion that no case under Section 302
cf the Indian Penal Code was made out stating :
"
G "Imposition of death penalty in a case of this nature, in our
opinion, was, thus, improper. Even otherwise, it cannot be said to ~
be a rarest of rare cases. The manner in which the deceased was ~
raped may be brutal but it could have been a momentary lapse on
'
the part of Appellant, seeing a 10nely girl at a secluded place. He
H had no pre-meditation for commission of the offence. The offence
BISHNU PRASAD SINHA & ANR. v. STATE [SINHA, J.] 945

may look a heinous, but under no circumstances, it can be said to A
be a rarest of rare cases."

60. {See also Sheikh lshaque & Ors. v. State of Bihar, [1995] 3 SCC
392, Rony v. State ofMaharashtra, [1998] 3 SCC 625, Bachan Singh v. State
of Punjab, [1980] 2 SCC 684 and Machhi Singh (supra).}
B
61. This aspect of the matter has recently been considered at some
length by this Court in Aloke Nath Dutta (supra).

62. There is another aspect of this matter which cannot be overlooked.
Appellant No. l made a confession. He felt repentant not only while making C
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.

63. It is, therefore, in our opinion, not a case where extreme death
penalty should be imposed. We, therefore, are of the opinion that imposition
D
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. E
64. Subject to the modification in the sentence mentioned hereinbefore,
this appeal is dismissed.

65. We must, before parting, however, express our appreciation for Ms. F
Makhija who had rendered valuable assistance to us.

v.s.s. Appeal dismissed.