MAHABIR BISWAS AND ANR.versusSTATE OF WEST BENGAL

                         MAHABIR BISWAS AND ANR.                                 A
                                    v.
                          STATE OF WEST BENGAL

                               OCTOBER 28, 1994

         [M.M. PUNCHHI, M.K.MUKHERJEE AND K. JAYACHANDRA                         B
                             REDDY, JJ.]

         Evidence Act, I872-Section 30- Confession-Evidentiary value-Its use
     against a co-accused.

         Indian Penal Code, I860- Section 302134- Murderous assault- C
     Retracted judicial confessions-Discoveries made pursuant to statements of
     two accused-Conviction-Whether legally sustainable.

         The two appellants, along with six others were arraigned for
     offences punishable under Sections 364134, 302/34, 201/34 and 379 IPC.
     The appellants were convicted u/s 302/34 IPC and sentenced to death. D
     On reference, the High Court while upholding the conviction of the two

..   appellants commuted their sentence to imprisonment for life.

          The case of the prosecution was that the two victims were
     returning to their houses in a rickshaw when some miscreants led by
     the two appellllnts came there, surrounded the two victims, dragged         E
     them out of the rickshaw and forcibly took them, and that on the
     follwoing morning their dead bodies were found lying on the road with
     their hands tied and with multiple injuries on their persons.

         The prosecution examined the rickshaw puller, to give an ocular
     version of ·the incident, but he turned hostile. In absence of any other    F
     witness to the actual commission of the crime, the prosecution rested its
     case upon two retracted judicial confessions of the appellants and
     certain discoveries made pursuant to the statement or the two
     appellants.
                                                                                 G
         In this appeal filed against the judgment of convication, the
     question that arose for determination was whether the prosecution had


-
     been able to prove conclusively that the appellants were amongst
     others, the authors of the crime and whether the convictions recorded
     by the trial Court and the High Court could be· sustained or not.
     Disposing of the appeal, this Court                                         H
                                       241
     242                   SUPREME COURT REPORTS           [1994] SUPP. 5 s.c;.R.·

A        HELD 1.1 A confession, before it can be acted upon must be
     established to have been voluntarily made and is true. As regards the
     evidentiary value of a confession, which passes the above two tests,
     against the maker thereof, in law it would be open to the Court to
     convict him on his confession itself though he has retracted his
     confession at a later stage. (245-G-H)
B
         1.2 Such a confession can also be used against a co-accused, in view
     of Section 30 of the Evidence Act. (246-C)

          Sarwan singh v. State of Punjab, AIR (1957) SC 637; Kehar Singh v.
     State (Delhi Admn), AIR (1988) SC 1883 and Kashmira Singh v. State of
     Madhya Pradesh, AIR (1952) SC 159, relied on.
c
          1.2 To ascertain whether the confession of appellant was true or
     not, the trial Court considered all the relevant factors required to be
     looked into for that purpose, including the period he was kept in
     segregation and the questions put by the Magistrate before recording
     the same, and on proper appraisal thereof answered the question i9 the
D    affirmative and the High Court concurred with the same. Whether a
     confession is voluntary or not, is a question of fact and when both the
     trial Court and the High Court have, on proper discussion of the
     materials brought on record, held it to be true, there is no reason
     whatsoever to disturb that finding. (246-H; 247-B)
E       1.3 The t.rial Court proceeded to examine the confession of the
    appellant M in the light of the rest of the prosecution evidence and the
    probabilities of the case to find out whether it was true and on a
    threadbare discussion held it to be so. In arriving at this conclusion the
    Court pointed out, .that appellant M's unequivocal admission fitted in
    with the ·evidence adduced by the witnesses to the· inquest anti the
F . Doctor who held the post mo'rtem examination. The above reasons
    found favour with the Higli Court and meet approval of this Court too.
                                                                    (247-C-D)
         1.4 Record indicates that M retracted the confession by. filing an
     application. The trial court considered the allegations in the light of
G    the materials on record and probabilities and found them to be
     baseless. This finding is unexceptional. (247-E)

          1.5 Besides the retracted confession the prosecution relied upon ttie
     discoveries of the sword and the watc~ of the victim pursuant to the
     statement of appellant M. The recovery of wrist watch pursuant to the
H    statement of appellant M fully corroborates his confession that during
               M. BISWAS v. STATE [M.K. MUKHERJEE, J.)                 243

their 6/7 days stay in the paternal aunt's home of the appellant S after A
the murder, S sold the said watch to PW 34, son of his aunt. This
confession of ap~llant M can be safely and fully relied upon to uphold
his conviction. (247-F-H, 248-A)

     2. In the case of appellant S, both the trial Court and the High
Court have relied upon the confessional statements of co-accused A and B
M and discovery of a silver ring belonging to the victim pursuant to his
statement made while in police custody. The confession of the co-
accused have to be ignored as against S and can be pressed into service
only to lend assurance to other substantive and reliable evidence.
Considering the evidence relating to the discovery of the ring, the
admissible part of the statement of S, pursuant to which the ring was C
recovered, only proves th.at he knew that the ring was concealed in the
ash dump. From such knowledge no inference of S committing theft of
the ring from the person of the deceased at the time of his murder and ·
for that matter, of his participation in the murder can be drawn, more
particularly when the recovery was made almost six months after the
murder. In the absence of any other substantive evidence against D
appellant S, the confessions of the coaccused cannot be called in aid.
(248-C-E)

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.14
of 1991.
                                                                             E
    From the Judgment and Order dated 31.7 .90 of the Calcutta High Court
in D.R. No.3of1989 and Crl.A .No. 371of1989.

    D.B. Vohra for the Appellants.

    Tapash Ray, Dilip Sinha, J.R. Das and A. Bal for the Respondent.
                                                                             F
    The Judgment of the Court was delivered by.

     M.K. MUKHERJEE, J. Mahabir Biswas and Shiba @ Bijoy Krishna
Dutta, the two appellants herein, along with six others, including one Amit
Haldar @ Pagla, were arraigned before the Court of Session for offences
punishable under Sections 3(i4/34, 302/34, 201134 and 379 I.P.C. On G
conclusion of the trial the Court, while recording an order of acquittal in
favour of four, convicted the other four including the two appellants and
Amit Haldar under section 302/34 I. P. C. but acquitted them of the charge
under section 201134 I. P. C. As regards the charges under sections 364/34
I. P. C. and 379 I. P. C. the Court recorded a finding that those were
redundant in the facts and circumstances of the case and, as such, di~ not H
    244                     SUPREME COURT REPORTS            [1994] SUPP. 5 S.C.R.

A   pass any fonnal order of conviction and sentence in respect of the same.
    For the conviction under section 302/34 l.P.C. the two appellants were
    sentenced to death and the other two to imprisonment for life. The reference
    made to the High Court under section 366 Cr.P.C. for confinnation of the
    sentence of death'. and the appeal preferred. by the app~llants were heard
    togehter and by the impugned judgment the High Court while upholding
B   the conviction of the two· appellants commuted their sentence to
    imprisonment for life. Hence this appeal by special leave.

        Bereft of details the case of the prosecution is as under. On March 20,
    1987 at or about 10.30 P.M. Pabitra Bhattacharjee and Tapan Ghosh (the
    two victims) along with one Shambhu Debnath were returning to their
c   respective houses in a rickshaw from Naihati Railway Station rickshaw
    stand after being dropped there by Dr. Tarun Adhikari, the local M.L.A. On
    the way Shambhu Debnath got down from the rickshaw in front of his
    house: Immediately thereafter some miscreants led ,by the two appellants
    came there, surrounded the two victims, dragged them out of the rickshaw
    and forcibly took them towards the nearby football ground.         ·
D
         Information about the abduction of the two victims was given to the
    members of thier families by Shambhu Debnath on the same night, who in
    their tum, informed the local police station. Inspite of vigorous searches
    conducted by the members of the victim's families and the police they
    could not be traced. However, on the following morning, their dead bodies
E   were found lying by the side of a water tank on Adahata Road, Naihati with
    their hands tied and multiple injuries on their persons. Thereafter on a
    written complaint lodged by Debaprasad, the younger brother of Pradip, a
    case was registered and on completion of investigation charge sheet was
    submitted against the appellant and others alleging that after forcbily taking
    the victims to the football ground the miscreants tied them with rope, killed
F
    them and removed the~ dead bodies to the nearby water tank.

         The defence of the appellants, as it can be gathered from the trerl'd of
    their cross examination of the prosecution witnesses and the statements
    made by them in their examination under section 313 Cr. P.C., was one of
G   innocence and of false implication due to political rivalry.

         That the dead bodies of the two victims were found lying on Adahata
    Road in the early morning of March 31, 1987 and that they met with their
    death owing to murderous assault . stand conclusively proved by
    overwhelming and unimpeachable evidence on record. In fact, this part of
H   the prosecution case was not seriously challenged by the defence. While the
               M. BISWAS v. STATE [M.K. MUKHERJEE, J.]                  245

evidence of Sunil Bose (P.W. 18) and Ranjit Kumar Bhattacharya (P.W. A
20), who were the two witnesses to the inquest (exhibit 3 and 4), besides
that of others, proves the find of the dead body, the evidence of Dr. S.K.
Ganguli (P.W. 36) who held post mortem examination upon i:he two dead
bodies proves the murder. P.W.36 found four incised injuries on the
mandible, chin and shoulders of Pabitra, besides some bruises and
abrasions. In his opinion the death was due to the shock and haemorrahage B
caused by the incised injuries which were ante mortem and homicidal in
nature. When shown the sword seized during investigation (Ext.VIII) he
stated that such injuries could be caused by that weapon. According to P.W.
36 the abrasions and bruises which he found on the wrists on the deceased
could be caused if the hands were tied by ropes. On the dead body of
Tapan, P. W .36 found one incised wound on the neck at the level of 4th C
cervical vertebra with all the vessels, nerves and muscles cut. The trachea
and oesophagus were also cut. He also found bruises and abrasions on
different parts of the body including the two wrists. He testified that the
incised wound was fatal and could be caused by the sword (Ext. VIII) and
the abrasions and bruises by tying the victims with ropes and by dragging.
                                                                               D
    The next and the most pertinent question that falls for determination is
whether the prosecution has been able to prove conclusively that the
appellants were, amongst others, the authors of the crime; in other words,
whether the convictions recorded by the trial Court and the High Court can
be sustained or not.
                                                                               E
     To bring home the accusations levelled against the appellants and the
other accused, the prosecution examined Shambhu Debnath (P.W.4) and
Sunil Karmakar (P.W.8) the rickshaw puller, to give an ocular version of
the incident, but they turned hostile. In such circumstances and in absence
of any other witness to the actual commission of the crime, the prosecution
rested its case upon two retracted judicial confessions of the appellant F
Mahabir and Amit @ Pagla and certain discoveries made pursuant to the
statements of the two appellants.

    A confession, before it can be acted upon, must be established to have
been voluntarily made and is true. As regards the evidentiary value of a G
confession, which passes the above two tests, against the maker thereof, this
Court has held, in Sarwan Singh v. State of Punjab, A.LR. (1957) S.C 637:

               " .... .in Jaw it would be open to the Court to convict him on
               his confession itself though he has retracted his confession
               at a later stage. Nevertheless usually Courts require some H
    246                      SUPREME COURT REPORTS            [1994) SUPP. 5 S.C.R.

A                    corroboration to the confessional statement before
                     convicting an accused person on such a statement. What
                     amount of corroboration would be necessary in such a case
                     would always be a question of fact to be determined in the
                     light of the circumstances of each case."

B        The same.principle has been reiterated by this Court in Kehar Singh v.
    State (Delhi Admn.), A.LR. (1988) SC 1883.

          Such a confession can also be used against a co-accused, in view of
    . Section 30 of the Evidence Act, which reads as under :

c                    "When more persons than one are being tried jointly for the
                     same offence, and a confession make by one of such
                     persons affecting himself and some other of such persons is
                     proved, the Court may take into consideration such
                     confession as against such other person as well as against
                     the person who makes such confession."
D
        The next question that naturally arises is how far and in what way the
    confession can be used against a co-accused, who has faced the trial for the
    same offence with the maker thereof. This was pithily answered by this
    Court in Kashmira Singh v. State of Madhya Pradesh, A.l.R. (1952) SC
    159 with the following words:
E
                     "The proper way to approach a case of this kind is, first to
                     marshall the evidence against the accused excluding the
                     conftission altogether from consideration and see whether, if
                     it is believed, a conviction could safely b.e based on it. If it
                     is capable of belief course it is not necessary to call the
F                    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. In such an event the Judge may call in aid the
                     confession and use it to lend asurance to the other evidence
                     and thus fortify himself in believing what without the aid of
G                    the confession he would not be prepared to accept."

          Keeping in view the above principles we may now proceed to consider
     the case of the appellants separately. On perusal of the impugned judgments
     we find that to ascertain whether the confession of Mahabir (Ext.16) was
     true or not, fue trial Court cons~dered all the relevant factors required to be
H    looked into for that purposf, including the period he was kept in
                                         I
                                     I
                                     I
                                     I
                                     I
               M. BISWAS v. STATE [M.K. MUKHERJEE, J.]                 247

segregation and the questions put by thelMagistrate before recording the A
same, and on proper appraisal thereof 'answered the question in the
affirmative and the· High Court concurred with the same. Needless to say
whether a confession is voluntary or not, is a question of fact and when
both the trial Court and the High Court have, on proper discussion of the
materials brought on record, held it to be true, we do not find any reason
whatsoever to disturb that finding.                                        B
     The trial Court then proceeded to examine the confession of Mahabir
in the light of the rest of the prosection evidence and the probablities of the
case to find out whether it was true and, on a threadbare discussion held to
be so. In arriving at this conclusion the Court pointed out, - in our view
rightly - that Mahabir's unc:quivocal admission that (i) on the fateful night C
he along with others compelled Pabtra and Tapan to come down from the
rickshaw,(ii) forcible took them to some distance, (iii) there they tied them
with ropes, (iv)·he and Shiba killed Pabitra with swords while his associates
killed Tapan and (v) all of them then carried the dead bodies to dump them
near a tank, fitted in with the evidence adduced by the witnesses to the
inquest and the doctor who held the post mortem examination. The above D
reasons found favour with the High Court and meets our approval too.

     Record .indicates that Mahabir retracted the confession bY. filing an
application before the Sub-Divisional Magistrate, Barrackpore on February
12, 1988 wherein he stated that he made it according to the dictates of the
C.I.D. Officer as he threatened him with dire consequences. The trial Court E
considered the allegations in the light of the materials on record and
probabilities and found them to be baseless. This finding also, in our view,
is unexceptional.

     Besides his retracted confession the prosecution relied upon the
discovries. of the sword and the watch of victim Pabitra pursuant to the F
statement of Mahabir. The wrist watch was recovered on 29th August, 1987
from the possession of Pradip Roy (P.W. 34). Though P.W. 34 was
declared hostile by the prosecution as he did not support its case that the
appellant Shiba had handed over the watch to him he did not deny the fact
that the wrist watch (Ext. VI) was recovered from his possession. He, G
however, claimed that he had purchased the wrist watch from a Bangladeshi
national in 1984. In absence of any proof of such purchase and in view of
the admitted fact that on the band of the wrist watch the name 'Pabitra' was
engraved, the trial Judge was right not only in discarding the claim of P. W.
34, but also recording that the wrist watch belonged to victim Pabitra,
relying upon the other evidence on record. The recovery of wrist watch H
    . 248                    SUPREME COURT REPORTS           (1994) SUPP.' S.C.R.c---._
                                         I

A /pursuant to the statement of the ·..ppellant Mahabir fully corroborates his ·
   confession that during their 6n days' stay in the paternal aunt's home of
     Slu'ba after the murder, Shiba sold the watch of Pabitra, which was taken
     away at the time to his murder, to Pradip Roy (P.M. 34), son of his     aunt
     Since, for the foregoing discussion we fmd that the confession of Mahiibir ·
     can be safely and fully relied upon to uphold his conviction we need not
B    consider the evidence regarding the recovery of sword nor call in t.id the
     confession of the co-accused Amil                            ·

         Coming now to the case of other appellant, namely, Shiba @ Bijoy
    Krishna' Dutta we fmd that both the trial Court and the High Court have
    relied upon the confessional statements of Amit and Mahiibir and discovery
c   of a silver ring belonging to Pabitra on September 20, 1987 from an ash
 .. dump pursuant to his statement made while in police custody. Since, to start
    with, the confessions of the co-accused namely Mahabir and Amit have to
    be ignored as against Shiba and can be pressed into service only to lend
    assurance to other substantive and reliable evidence, we proceed to consider
    the evidence relating to the discovery of the ring. The admissible. part of the
D statement of Shiba, pursuant to which the ring was recovered, only proves
    that he knew that the ring was concealed in the ash dump. From such
    knowledge no inference of Shiba's committing theft of the ring from the
    person of Pabitra at the time of his murder and for that matter, of his
    participation in the murder can be drawn, more particularly when the
    recovery was made almost six months after the murder. In absence of any
E other substantive evidence against appellant Shiba, the confessions, of the
    two co-accused cannot be called in aid.

         On the conclusions as above we dismiss the appeal, so f.;,. as it relates
     to Mahabir, the appellant No.I, but allow that of Shiba @ Bijoy Krishna
     Dutta, the appellant No.2. Let the appellant No.2 be released forthwith.
F    The appeal is thus disposed o(

     A.G.                                                     Appeal disposed of.