# 1 S.C.R. 929 RABINDRA KUMAR PAL @ DARA SINGH v. REPUBLIC OF INDIA

- **Citation:** [2011] 1 S.C.R. 929
- **Court:** Supreme Court of India
- **Decided:** 2011-01-21
- **Case number:** Criminal Appeal No. 1366 of 2005
- **Bench:** P. Sathasivam Anij Dr. B. S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-929-rabindra-kumar-pal-dara-singh-v-republic-of-india-27282
- **Pages:** 68

## Headnote

~
Penal Code, 1860 - s. 302 - Rioting, arson and mufdt}r
of three persons - Christian Missionary from Australia,
engaged in propagating cmd preaching Christianity in the c
tribal area, burnt to death afongwith his two minor sons by 5060 miscreants - Victims also prevented from escaping from
the vehicle - Conviction and sentence of 14 accused - High
Court modifying death se1ntence awarded to A-1 to life
imprisonment and upheld life imprisonment.Jmpos~d on A-3
D
and acquitted the others - On appeal, held: Letters addressed
by A-3 to the trial judge wherein he confessed his guilt, in the
course of trial lend ample corroboration to his identification
before the trial court by P~V-23, even th6ugh no I/P was
conducted by Judicial Magistrate - A-3 also addressed a
[
letter to his sister-in-law, inculpating himself and A-L- A-3
though denied the letters b'ut it amounts to confession and
lend support to the evidence in identification before the trial
court for the first time - Testimony of witnesses that miscreants
raised slogans in the name of A-1 which co"oborates the
F
identification before the trial court for the first time - All the
witnesses mentioned about th,9 blowing of whistle by A 1 - A3 in his statement u/s. 313 Cr.P.C. admitted to have set fire
to the vehicles and confessed his guilt - Abscondence of A3 soon after the incident and c.1voiding of a"est, is a relevant
G
"'j
·l!
conduct to prove his guilt - Death of the victims by setting
fire by the miscreants cannot be ruled out - Even in the midst
of uncertainties, witnesses specified the role of A-1 and A-3
- However, more than 12 yeam having elapsed since the act
929
H
930
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A was committed, life sentence awarded by the High Court not
enhanced - Conviction of A-1 and A-3 and the sentence of
life imprisonment imposed on them by the High Court,
maintained - As regards the other accused, testimony of the
eye-witnesses about their identification before the trial court
B for the first time without corroboration by previous Test
Identification Parade, not credible - In view of absence of
acceptable materials and various infirmities in the
prosecution case, order of acquittal of accused other than A_.._
1 and A-2 upheld - Sentence/Sentencing - Evidence - Test
c identification parade.
Identification - Photo identification and identification of
the accused by the witnesses done for the first time before the
trial court without being corroborated by Test Identification
Parade or any other material - Evidentiary value - Held:
D Though such identification is permissible but cannot be given
credence without further corroborative evidence - On facts, for
many days, t:ye-witnesses never came forward before the /Os
and the police personnel claiming that they had seen the
occurrence - As such, their teslim'ony about the identification
E of the accused other than A-1 and A-3 before the trial court
for the first time without corroboration by previous TIP, not
credible -As regards A-1 and A-3, they were identified which
was also corroborated by the 'evidence of slogans given in
their name and each one of the witnesses asserted the said
.~f aspect, thus, their identification can be relied upon - Test
identification parade
Code of Criminal Procedure, 1963 - s. 164 - Recording
of confessions and statements - Procedure to be followed by
G the Magistrate - Reiterated - On facts, procedural lapse on
the part of the Judicial Magistrate in recording confessional
1
'
statements - Accused in their confessional statements, made
exculpatory statements - Thus, confessional statements with
regard to accused other than A-1 and A-3, not admissible.
H
Appeal - Appeal against acquittal - When two views are
RABINDRA KUMAR PAL @ DARA SINGH v.
931 ·
REPUBLIC OF INDIA
~
possible, the one in favour of the accused should be . A
accepted - Presumption of innocence is a fundamental
principle of criminal jurisprudence - On facts, absence of
definite assertion from the prosecution s

## Text

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(2011] 1 S.C.R. 929
RABINDRA KUMAR PAL @ DARA SINGH
A
v.
REPUBLIC OF INDIA
Criminal Appeal No. 1366 of 2005
JANUARY 21, 2011
B
[P. SATHASIVAM ANIJ DR. B. S. CHAUHAN, JJ.]
~
Penal Code, 1860 - s. 302 - Rioting, arson and mufdt}r
of three persons - Christian Missionary from Australia,
engaged in propagating cmd preaching Christianity in the c
tribal area, burnt to death afongwith his two minor sons by 5060 miscreants - Victims also prevented from escaping from
the vehicle - Conviction and sentence of 14 accused - High
Court modifying death se1ntence awarded to A-1 to life
imprisonment and upheld life imprisonment.Jmpos~d on A-3
D
and acquitted the others - On appeal, held: Letters addressed
by A-3 to the trial judge wherein he confessed his guilt, in the
course of trial lend ample corroboration to his identification
before the trial court by P~V-23, even th6ugh no I/P was
conducted by Judicial Magistrate - A-3 also addressed a
[
letter to his sister-in-law, inculpating himself and A-L- A-3
though denied the letters b'ut it amounts to confession and
lend support to the evidence in identification before the trial
court for the first time - Testimony of witnesses that miscreants
raised slogans in the name of A-1 which co"oborates the
F
identification before the trial court for the first time - All the
witnesses mentioned about th,9 blowing of whistle by A 1 - A3 in his statement u/s. 313 Cr.P.C. admitted to have set fire
to the vehicles and confessed his guilt - Abscondence of A3 soon after the incident and c.1voiding of a"est, is a relevant
G
"'j
·l!
conduct to prove his guilt - Death of the victims by setting
fire by the miscreants cannot be ruled out - Even in the midst
of uncertainties, witnesses specified the role of A-1 and A-3
- However, more than 12 yeam having elapsed since the act
929
H
930
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A was committed, life sentence awarded by the High Court not
enhanced - Conviction of A-1 and A-3 and the sentence of
life imprisonment imposed on them by the High Court,
maintained - As regards the other accused, testimony of the
eye-witnesses about their identification before the trial court
B for the first time without corroboration by previous Test
Identification Parade, not credible - In view of absence of
acceptable materials and various infirmities in the
prosecution case, order of acquittal of accused other than A_.._
1 and A-2 upheld - Sentence/Sentencing - Evidence - Test
c identification parade.
Identification - Photo identification and identification of
the accused by the witnesses done for the first time before the
trial court without being corroborated by Test Identification
Parade or any other material - Evidentiary value - Held:
D Though such identification is permissible but cannot be given
credence without further corroborative evidence - On facts, for
many days, t:ye-witnesses never came forward before the /Os
and the police personnel claiming that they had seen the
occurrence - As such, their teslim'ony about the identification
E of the accused other than A-1 and A-3 before the trial court
for the first time without corroboration by previous TIP, not
credible -As regards A-1 and A-3, they were identified which
was also corroborated by the 'evidence of slogans given in
their name and each one of the witnesses asserted the said
.~f aspect, thus, their identification can be relied upon - Test
identification parade
Code of Criminal Procedure, 1963 - s. 164 - Recording
of confessions and statements - Procedure to be followed by
G the Magistrate - Reiterated - On facts, procedural lapse on
the part of the Judicial Magistrate in recording confessional
1
'
statements - Accused in their confessional statements, made
exculpatory statements - Thus, confessional statements with
regard to accused other than A-1 and A-3, not admissible.
H
Appeal - Appeal against acquittal - When two views are
RABINDRA KUMAR PAL @ DARA SINGH v.
931 ·
REPUBLIC OF INDIA
~
possible, the one in favour of the accused should be . A
accepted - Presumption of innocence is a fundamental
principle of criminal jurisprudence - On facts, absence of
definite assertion from the prosecution side, about the specific
role and involvement of the acquitted accused who are all
. poor tribals -
Thus, not safe to convict them - Order of s
acquittal of these accused upheld - Criminal jurisprudence.
Sentence/Sentencing - Conviction u/s. 302 /PC - Award
-"'
of Punishment - Held: Normal rule is to award punishment
of life imprisonment - Punishment of death should be
resorted to only for the rclfest of rare cases which is to be
C
examined with reference to the facts and circumstances of
each case - Court to take note of the aggravating as well as
mitigating circumstances ~ Penal Code, 1860.
Secularism - Concept of - Held: State will have no
D
religion - It shall treat all religions and religious groups equally
and with equal respect without in any manner interfering with
their individual right of religion, faith and worship - There is
no justification for interferin17 in someone's religious belief by
any means - Constitution of India, 1950.
E
The prosecution case was that 'GS', a Christian
Missionary from Australia, was engaged in propagating
and preaching Christianity in the tribal area of Orissa. On
the fateful day, the Missionary team conducted different
programmes in the village 11ear the church and retired for
the day. 'GS' and his two minor sons slept in a vehfole.
At mid-night, a mob of 60-70 people set fire to the vehicle
and prevented 'GS' and his sons to escape from vehicle.
F
As a result GS' and his two sons were burnt to death. The
local police and the State Crime Branch failed to conduct G
the investigation satisfactorily and as such the
investigation was transferred to CBI. The charge sheet
was filed against 14 accust~d persons. The prosecution
examined 55 witnesses and the defence examined 25
witnesses. The trial court convicted all the accused and
H
932
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A sentenced them for offences punishable under various
Sections. 'OS'- A-1 was awarded death sentence and the
others were awarded sentence of life imprisonment. The
High Court holding that the witnesses are not trustworthy
and no credence should be given to their statement and
B confessional statements were procured by the
investigating agency under threat and coercion, modified
the death sentence awarded to A-1 into life imprisonment
and upheld the sentence of life imprisonment awarded to
· 'MH'-A-3 and acquitted the other accused. Therefore, the
c instant appeals were filed by A-1, A-3 and CBI.
Dismissing the appeals, the Court
HELD: 1. The analysis of entire materials clearly
shows that the High Court was right in arriving at its
D conclusion. In the instant case, there is no material to
prove conspiracy charge against any of the accused.
Even in the midst of uncertainties, the witnesses have
specified the role of A-1 and A-3 which is accepted and
confirmed. The conviction of the appellant A-1 and A-3
E and the sentence of life imprisonment imposed on them,
is maintained. In the absence of acceptable materials and
in view of the various infirmities in the prosecution case
as pointed out by the High Court, the order of acquittal
of others who are all poor tribals is concurred with. [Para
F 48] [995-G-H; 996-A-B]
2.1 In the absence of any independent corroboration
like Test Identification Parade held by judicial Magistrate,
the evidence of eye-witnesses as to the identification of
the appellants/accused for the first time before the trial
G court generally cannot be accepted. If the case is
supported by other materials, identification of the
accused in the dock for the first time would be
permissible subject to confirmation by other
corroborative evidence, which are lacking in the instant
H case, except for A-1 and A-3. The High Court rightly
RABINDRA KUMAR PAL @ DARA SINGH v.
933
REPUBLIC OF INDIA
observed that for a long number of days, many of these
A
eye-witnesses never came forward before the IOs and the
police personnel visiting the village from time to time,
claiming that they had seen the occurrence. Thus, no
importance need to be attached on the testimony of these
eye-witnesses about their identification of the appellants
B
other than A1 and A-3 before the trial court for the first
. time without corroboration by previous TIP held by the
Magistrate in accordance with the procedure established.
[Para 11] [960-C-G]
2.2 Showing photographs of the miscreants and c
identification for the first time in the trial court without
being corroborated by TIP held before a Magistrat~ or
without any other material may not be helpful to the
prosecution case. The evidence of witness given in the
court as to the identification may be accepted only if he
D
identified the same persons in a previously held TIP in
jail. It is true that absence of TIP may not be fatal to the
. prosecution. In the instant case, A-1 and A-3 were
identified and also corroborated by the evidence of
sloga~s given in his name and each one of the witnesses · E
asserted the said aspect in~ofar as they are concerned.
None of these witnesses named the offenders in their
statements except few recorded by IOs in the course of
investigation. Though an explanation was offered that out
of fear they did n9t name the offenders, the fact remains,
F
on the next day of the incident, Executive Magistrate and
top level police officers were camping the village for quite
some time. Inasmuch as evidence of the identification· of
the accused during trial for the first time is inherently
weak in character, as a safe rule of prudence, generally G
~ ""
it is desirable to look for corroboration of the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to them, in the form of earlier
TIP. Though some of them were identified by the
photographs except A-1 and A-3, no other corroborative
H
934
SUPREME COURT REPORTS
[2011) 1 S.C.R.
• A material was shown by the prosecution. Thus, it is clear
that identification of accused persons by witness in dock
for the first time though permissible but cannot be given
credence without further corroborative evidence. Though
some of the witnesses identified some of the accused in
B the dock without corroborative evidence, the dock
identification alone cannot be treated as substantial
evidence, though it is permissible. [Paras 12 and 15] [960H; 961-A-E; 966-D-E]
C
Manu Sharma vs. State (NCT of Delhi) (201 O) 6 SCC 1
- relied on.
D
Umar Abdul Sakoor Sorathia vs. Intelligence Officer,
Narcotic Control Bureau AIR 1999 SC 2562; Jana Yadav vs.
State of Bihar (2002) 7 SCC 295 - referred to.
3. If the witnesses are seen through microscope, it
is true that the contradictions would be visible and clear
but by and large they explained the prosecution case
though they could not identify all the accused persons
E with clarity except A-1 and A-3. By virtue of these minor
contradictions, their testimony cannot be rejected in toto.
But, by and large, there are minor contradictions in their
statements. In the face of the difference in the evidence
of prosecution witnesses with regard to light, clothing,
number of accused persons, fog, faces covered or not,
F it is not acceptable in toto except certain events and
incidents which are reliable and admissible in evidence.
[Para 17] [967-D-Fl
4.1 The following principles emerge with regard to
G Section 164 Cr.P.C.:-
H
(i) The provisions of Section 164 Cr.P.C. must be
complied with not only in· form, but in essence.
(Ii) Before proceeding to record the confessional
...
.
'(
RABINDRA KUMAR PAL @ DARA SINGH v.
935
REPUBLIC OF INDIA
statement, a searching enquiry must be made from
A
the accused as to the custody from which he was
produced and the treatment he had been receiving
in such custody in order to ensure that there is no
scope for doubt of any sort of extraneous influence
proceeding from a source interested in the s
prosecution.
(iii) A Magistrate should ask the accused as to why
he wants to make a statement which surely shall go
against his interest in the trial.
· (iv) The maker should be granted sufficient time for
reflection.
(v) He should be assured of protection from any sort
c
of apprehended torture or pressure from the police
0
in case he declines to make a confessional
statement.
•
(vi) A judicial confession not given voluntarily is
unreliable, more so, when such a confession is
retracted, the conviction cannot be based on such
E
retracted judicial confession.
(vii) Non-compliance of Section 164 Cr.P.C. goes to
the root of the Magistrate's jurisdiction to record the
confession .and renders the confession unworthy of F
credence.
(viii) During the time of reflection, the accused should
be completely out of police influence. The judicial
officer, who is entrusted with the duty of recording
confession, must apply his judicial mind to ascertain
G
and satisfy his conscience that the statement of the
accused is not on account of any extraneous
influence on him.
(ix) At the time of recording the statement of the· H
936
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A
accused, no police or police official shall be present
in the open court.
"
(x) Confession of a co-accused is a weak type of
evidence.
B
(xi) Usually the Court requires some corroboration
from the confessional statement before convicting
the accused person on such a statement. [Para 29]
[980-G-H; 981-A-H; 982-A]
_..__
c
Bhagwan Singh and Ors. vs. State of M.P. (2003) 3 SCC
21; Shivappa vs. State of Kamataka (1995) 2 SCC 76; Dagdu
and Ors. vs. State of Maharashtra (1977) 3 SCC 68; Davendra
Prasad Tiwari vs. State of U.P. (1978) 4 SCC 474; Kalawati
and Ors. vs. State of Himachal Pradesh 1953 SCR 546; State
D · thr. Superintendent of Police, CBI/SIT vs. Nalini and Ors.
(1999) 5 SCC 253; State of Maharashtra vs. Damu (2000) 6
~
sec 269 - relied on.
4.2 The analysis of evidence of Judicial Magistrates
- PW-29 who recorded the confessional statement of
E 'RS' and 'TH' and PW-34 who recorded the confessional
statement of 'MM', 'UK' and 'DP', shows that many of the
confessional statements were recorded immediately after
production of the maker after long CBI custody and in
some cases after such statements were made and
F recorded by the Judicial Magistrate, the maker was
remanded to police custody. Though the Magistrates
have deposed that the procedure provided under Section
164 Cr.P.C. has been complied with, various warnings/
cautions required to be given to the accused before
·G . recording such confession, have not been fully adhered
to by them. The High Court strongly observed about the
)I
•
procedural lapse on the part of PWs-29 and 34. Their
statements and requirements in terms of Section 164
. Cr.P.C. are verified. In the certificate, there is no specific
H reference about the nature of the custody from which
RABINDRA KUMAR PAL @ DARA SINGH v. ·
937
REPUBLIC OF INDIA
these persons were produced nor about the assurance
A
that they would not be remanded to police custody if they
declined. Section 164 Cr~P.C. requires strict and faithful
compliance of sub-sections 2 to 4, the failure to observe
safeguards not only impairs evidentiary value of
confession but cast a doubt on nature and voluntariness
B
of confession on which no reliance can be placed. No
exceptional circumstances could be brought to the
notice by the prosecution in respect of the appellants
other than A-1 and A-3. [Paras 32 and 33] [983-H; 984-AH]
C
4.3 Under sub-section (3) of Section 164 Cr.P.C., if
any accused refuses_ to make any confessional
statement, such Magistrate shall not authorize detention
of the accused in police custody. Remanding 'RS' to
police custody after his statement was recorded under D
Section 164 Cr.P.C. is not justified. The High Court rightly
observed that the possibility of coercion, threat or
inducement to the accused 'RS' to make the confession
cannot be ruled out. In the same manner, confession of
accused 'TH' was also recorded by the very same
E
Magistrate. The High Court pointed out that he was not
cautioned that if he made any confession, same may be
used against him in evidence and on that basis he may
be sentenced to death or imprisonment for life; and that
if he refused to make the confessional statement, he
F
would not be remanded to police custody. Both of these
accused, in their confessional statements, made
exculpatory statements. PW-34, Judicial Magistrate,
recorded the confessional statement of accused 'MM'
immediately after his production before him from the G
• .,,,
police custody. It was noted that he was given only 10
minutes' time for reflection after his production from
police custody. The other accused who made the
confessional statement is 'DP! whose statement was
recorded by PW-34~ The High Court, on corroboration of H
938
SUPREME COURT REPORTS
[2011] 1 S.C.R.
.
A the confessional statement, had found that the entire
confessional statement is exculpatory and he also
.\
retracted from the confession. It was further found that
this confessional statement was made long after the
charge-sheet was filed. [Paras 31 and 32] [983-D-H; 984B A-C]
5. The procedure adopted by the investigating
agency with regard to taking of the signature/writings of
A-3 or examination by the expert was analyzed and
..I,_
c approved by the trial court and confirmed by the High
Court, and cannot be faulted with. In view of oral report
of PW-4 which was reduced into writing, the evidence of
PW-23, two letters dated 01.02.2002 and 02.02.2002
addressed by A-3 to the trial judge facing his guilt
D
coupled with the other materials, the submission that
there is deficiency in the prosecution case insofar as A3, cannot be accepted and the conclusion arrived by the
High Court is confirmed. [Para 35] [989-B-C]
The State of Bombay vs. ·Kathi Kalu Oghad and Ors.
E (1962) 3 SCR 10; M.P. Sharma and Ors. vs. Satish Chandra,
District Magistrate, Delhi and Ors. (1954) SCR 1077 - relied
on.
6.1 With regard to the role of A-3, the prosecution
F very much relied on the letters by A-3 addressed to the
Sessions Judge wherein he confessed his guilt. Though
a serious objection was taken about the admissibility of
these two letters, the contents of these two letters in the
course of trial lend ample corroboration to his
G
identification before the trial court by PW-23 and the same
could be safely relied upon. Even in his case, it is true
that there was no TIP conducted by Judicial Magistrate.
y
~
[Para 36] [989-E-F]
6.2 The prosecution also relied on a letter said to
H have been addressed by A-3 to PW-9, his sister-in-law.
c
•
RABINDRA KUMAR PAL @ DARA SINGH v.
939
REPUBLIC OF INDIA
The said letter is a confessional statement of accused AA
1--
3 inculpating himself and A-1. A-3 in said letter confessed
that he along with A-1 burnt the 'Jisu' (Christian
Missionary). All the ocular witnesses have testified that
after setting fire to vehicles and burning 'GS' and his two
sons alive, the miscreants. raised slogans "Jai Baj rang
B
Bali" and "Dara Singh Zindabad". The entire contents of
letter were used by the trial judge which was rightly
)..
1 accepted by the High Court. [Paras 38 and 41) [990-F-G;
992-D]
6.3 A-3 in his statement recorded under Section 313
C
Cr.P.C. on 04.02.2002, admitted to have set fire to the
vehicles and in his statement recorded under Section 313
Cr.P.C. on 24.03.2003 has admitted to have filed petitions
pleading guilty and to have stated in his earlier
examination under Section 313 Cr.P.C. that he had set fire
D
to the vehicles. There is no impediment in relying on a
portion of the statement of the accused and finding him
guilty in consideration of the other evidence against him
as laid by the prosecution. [Para 39) [991-8-C)
E
6.4 It is clear that A-3 though denied the letters written
by him, the contents of the said two letters amount to
confession, or in any event admission of important
incriminating materials. He had been identified before the
trial court by PW-23 as a participant in the crime. The High
F
Court rightly observed that the contents of the two letters
lend support to the evidence in identification before the
trial court for the first time as narrated by PW-23. In this
way, his identification for the first time in the trial court is
an exceptional case and even in the absence of further G
corroboration by way of previously held TIP, his
involvement in the crime is amply corroborated by the
said letters written by him. [Para 40] [991-D-F]
6.5 Though an objection was raised as to the manner
H •
0
940
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A in which the trial judge questioned A-3 with reference to
contents of his letters dated 01.02. 2002 and 02.02.2002,
addressed to the Sessions Judge wherein he confessed
his guilt, it is relevant to point out that when the person
facing trial insisted to look into the contents of his letter&,
B the presiding officer concerned has to meet his
requirement subject to the procedure established. The
trial judge accepted the entire contents of the admission
made by A-3 and affording reasonable opportunity and
by following the appropriate procedure coupled with the
c corroborative evidence of PW-23, upheld his involvement
and participation in the crime along with A-1 which
resulted in rioting, arson and murder of three persons.
Also A-3 absconded soon after the incident and avoided
arrest and this abscondence being a conduct under
0 Section 8 of the Evidence Act, 1872 should be taken into
consideration along with other evidence to prove his
guilt. The fact remains that he was not available for quite
sometime till he was arrested which fact has not been
disputed. Before accepting the contents of the two letters
and the evidence of PW-23, the trial Judge afforded him
E required opportunity and followed the procedure which
was rightly accepted by the High Court. [Para 41) [992A-F]
7.1 Though several inconsistencies were noticed in
F the prosecution evidence and the accused persons were
not specifically identified except A-1 and A-3, the fact
remains that the Van in which 'GS' and his two children
were sleeping were set on fire and burnt to death due to
the cause of the miscreants. The death of these three
G persons by setting fire by the miscreants cannot be ruled
out. There is no material to conclude that the fire
emanated from inside of the vehicle and then spread to
rest of the vehicle after the fuel tank caught fire. There is
no basis for such conclusion though the prosecution.
RABINDRA KUJMAR PAL @ DARA SINGH v.
941
'
R~PUBLIC OF INDIA
witnesses could not pin-point and identify the role of A
"
each accused. [P~ra 34] [985-C-E]
7 .2 All the : eye,.witnesses examined by the
prosecution conststently stated that during occurrence
the miscreants rai ed slogans in the name of A-1 as "Dara 8
Singh Zindabad' . The story of this slogan was also
~entioned i. n the1 first information report lodged soon
after the occurref'lce. This slogan is in the name of A-1,
,,.. borroborates the itlentification before the trial court for the
first time. In addi~ion to the same, some of the witnesses
identified A-1 by photo identification. In addition to the C
same, all the witnesses mentioned about the blowing of
whistle by A-1. [Para 42] [992-G-H; 993-A-C]
8. The submission that only :after the intervention of
•
'
-
i
PW-55, 1.0. from CBI, seve1ral persons made a D
confessional statement· by applying strong arm tactics
that were used by the investigating agency, the entire
case of the prosecution has to be rejected, cannot be
accepted. Some of the witnesses did not mention
anything about the incident to the local police or· the E
District Magistrate or the higher level police officers who
were camping from the next day of the incident. However,
regarding the fresh steps taken by the Officer of the CBI,
particularly, the efforts made by PW-55, though there are
certain deficiencies in the investigation, the same cannot F
be under estimated. The young children were being
coerced into being witness to the occurrence whereas
the elder family members were never joined as witness
by the prosecuting agency. The prosecution could have
examined elders and avoided persons like PW-5 who was
a minor on the date of the incident. [Para 44] [993-H; 994G
A-E]
9. On conviction under Section 302 IPC, the normal
I
rule is to award punishment of life imprisonment and the
punishment of death should be resorted to only for the H
•
942
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A
rarest of rare casei. Whether a case falls within the rarest
of rare case or not, has to be examined with reference to
"
the facts and circumstances of each case and the court
has to take note of the aggravating as well as mitigating
circumstances and conclude whether there was
s something uncommon about the crime which renders the
sentence of imprisonment for life inadequate and calls for
death sentence. However, more than 12 years has
elapsed since the act was committed, the life sentence
j._
awarded by the High Court need not be enhanced in view
c of the factual position. [Para 43) [993-E-G]
D
Bachan Singh vs. State of Punjab AIR 1980 SC 898;
Machhi Singh vs. State of Punjab (1983) 3 SCC 470; Kehar
Singh vs. State (DelhiAdministration) (1988) 3 SCC 609 -
relied on.
10.1 Insofar as the appeals filed by the CBI against
the order of acquittal by the High Court in respect of
certain persons, it was pointed out that when two views·
are possible, the one in favour of. the accused should be
E
accepted. The presumption of innocence is a fundamental
principle of criminal jurisprudence. Further, presumption
of innocence is further reinforced, reaffirmed and
strengthened by the judgment in his favour. [Para 45)
[994-E-F]
F
•
t
RABINDRA KUMAR PAL @ DARA SINGH v.
943
REPUBLIC OF INDIA
High Court insofar as the order relating to acquittal of A
·~
certain accused persons, is concurred with. [Para 45) ·
[995-A-B]
11. In a country like India where discrjmination on the
ground of caste or religion is a taboo, taking lives of B
persons belonging to another caste or religion is bound
to have a dangerous and reactive effect on the society
at large. It strikes at the very root of the orderly society
,,. ;.ii.
which the founding fathers of our Constitution dreamt of.
The concept of secularism is that the State will have no c
religion. The State shall treat all religions and religious
· groups equally and with equal respect without in any
manner interfering with their individual right of religion,
faith and worship. It is hoped that the vision of religion
playing a positive role in bringing _India's nu_merous
D
religion and communities into an integrated prosperous
y
nation be realized by way of equal respect for all religions.
There is no justification for interfering in someone's
religious belief by any means. [P~ras. 46 and 47] [995-CF]
'
E
Case Law Reference:
(201 O) 6 sec 1
Relied on
Para 11
.......
AIR 199~ SC 2562
Referred to
Para 14
-;
(2002) 1 sec 295
Referred to
Para 15
F
(2003) 3 sec 21
Relied on
Para 22
(1995) 2 sec 76
Relied on
Para 23
(1977) 3 sec 68
Relied on
Para 24
G
,,_ "
(1978) 4 sec 474
Relied ori
Para 25
1953 SCR 546
Relied on ·
Para 26
(1999) 5 sec 253
Relied on
Para 27
H
A
B
c
944
SUPREME COURT REPORTS
(2000) 6 sec 269
(1962) 3 SCR 10
(1954) SCR 1077
AIR 1980 SC 898
. (1983) 3 sec 470
(1983) 3 sec 609
(2009) 14 sec 501
(2008) 11 sec 186
(2003) 1 sec 398
(2002) 3 sec 57
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
Relied on
[2011] 1 S.C.R.
Para 28
Para 35
Para 35
Para 43
Para 43
Para 43
Para 45
Para 45
Para 45
Para 45
D
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1366 of 2005.
From the Judgment & Order, dated 19.05.2005 of the
High Court of Orissa at Cuttack in Criminal Appeal No. 239 of
E 2003.
WITH
Crl. Appeal Nos. 1259 of 2007 & 1357-1365 of 2005.
Vivek K. Tankha, KTS Tulsi, Katnakar Dash, A.
F
Mariyaputham, Mrinmayee Sahu, Sibo Sankar Mishra, Raj
Kumar Parashar, Priyanka Agarwal, Sumeer Sodhi, Pratul
Shandilya, Vaibhav Srivastava, D. Kumanan, R. Sancheti, K.
G
· Sudhakar, S. Wasim, A Quadri, Arvind Kumar Sharma for the
appearing parties.
The judgment of the Court was delivered by
P. SATHASIVAM, J. 1. These appeals relate to a
sensational case of triple murder of an Australian Christian
H
Missionary - Graham Stuart Staines and his two minor sons,
•
J.
RABINDRA KUMAR PAL @ DARA SINGH v.
945
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
namely, Philip Staines, aged about 10 years and Timothy
A
Staines aged about 6. years.
2. Criminal Appeal No. 1366 of 2005 is filed by Rabindra
Kumar Pal @ Dara Singh against the final judgment and order
dated 19.05.2005 passed by the High Court of Orissa at
8
Cuttack in Criminal Appeal No. 239 of 2003 whereby the High
Court dismissed the appeal of the appellant upholding the
conviction and commuting the death sentence passed by the
trial Court into that of life imprisonment. Against the same
judgment, Criminal Appeal No. 1259 of 2007 is filed by
Mahendra Hembram challenging his life imprisonment awarded
C
by the trial Court and confirmed by the High Court. Against the
acquittal of rest of the accused by the High Court, the Central
Bureau of Investigation (in short "the CBI") filed Criminal Appeal·
Nos. 1357-1365 of 2005. Since all the appeals arose from the
D
common judgment of the High Court and relating to the very
same incident that took place in the midnight of 22.01.1999/
23.01.1999, they are being disposed of by this judgment.
3. The case of the prosecution is as under:
i
E
(a) Graham Stuart Staines, a Christian Missionary from
F
Australia, was Working among the tribal people especially
lepers of the State of Orissa. His two minor sons, namely,
Philip Staines and Timothy Staines were burnt to death along
with their father in the midnight of 22.01.1999/23.01.1999. The
deceased-Graham Staines was engaged in propagating and
preaching Christianity in the tribal area of interior Orissa.
Manoharpur is. a re.mote tribal village under the Anandapur
Police Station of the District Keonjhar of Orissa. Every year,
soon after the Makar Sankranti, the said missionary used to
come to the village to conduct the Jungle Camp. Accordingly,
G
·on 20.01.1999, the deceased-Staines, along with his two minor
sons Philip and Timothy and several other persons came to the
village Manoharpur. They conducted the camp for next two
days by hosting a series of programmes.
H
946
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A
(b) On 22.01.1999, the Missionary Team, as usual
conducted different programmes in the village near the Church
and retired for the day. Graham Staines and his two minor sons
slept in their vehicle parked outside the Church. In the midnight, a mob of 60-70 people came to the spot and set fire to
B the vehicle in which the deceased persons were sleeping. The
mob prevented the deceased to get themselves out of the
vehicle as a result of which .all the three persons got burnt in
the vehicle. The local police was informed about the incident
c
D
on t~e next day.
(c) Since the local police was not able to proceed with the
investigation satisfactorily, on 23.04.1999, the same was
handed over to the State Crime Branch. Even the Crime Branch
failed to conduct the investigation, ultimately, the investigation
was transferred to CBI.
(d) On 03.05.1999, the investigation was taken over by the
CBI. After thorough investigation, charge sheet was filed by
the CBI on 22.06.1999. On the basis of charge sheet, as many
as 14 accused persons w~re put to trial. . Apart from these
E accused, one minor was tried by Juvenile Court.\ ,
(e) The prosecution examined as many as 55 witnesses
whereas in defence 25 witnesses were examined. Series of
documents were exhibited by the prosecution. By a common
F judgment and order dated 15.09.2003 and 22.09.2003,
Sessions Judge, Khurda convicted all the accused and
sentenced them for offences punishable under various sections.
The death sentence was passed against Dara Singh-appellant
in Criminal Appeal No. 1366 of 2005 and others were awarded
sentence of life imprisonment.
G
(f) The death reference and the appeals filed by the
convicted persons were heard together by the High Court and
·were disposed of by common judgment dated 19.05.2005
concluding that the witnesses are not trustworthy and no
. H credence should be given to their statements and confessional
.....
-
:J..
RABINDRA KUMAR PAL @ DARA SINGH v.
947
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
statements were procured by the investigating agency under
A
threat and coercion. The High Court, by the impugned judgment,·
modified the death sentence awarded to Dara Singh into life
imprisonment and confirmed the life imprisonment imposed __ on
Mahendra Hembram and acquitted all the other accused
persons. Questioning the conviction and sentence of life
B
impri~onment, Dara Singh and Mahendra Hembram filed
Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007
respectively and against the acquittal of rest of the accuse~.
CBI filed .Criminal Appeal Nos. 1357-65 of 2005 before this
Court.
c
4. Heard Mr. KTS Tulsi and Mr. Ratnakar Dash, learned
senior counsel for the accused/appellants and Mr. Vivek K.
Tankha, learned Addi. Solicitor General for the CBI.
· 5. Mr. K.T.S. Tulsi, learned senior counsel appearing for
D
Rabindra Kumar Pal @ Dara Singh (A 1) and other accused in
the appeals against acqui~al filed by the CBI, after taking us
through all the relevant materials has raised the following
contentions:-
· (i) Confessions of various accused persons, particularly,
Rabi Soren (A9), Mahadev Mahanta (A11) and Turam Ho {A12)
under Section 164 of the Code of Criminal Procedure, 1973
{hereinafter referred to as 'Cr.P.C.') cannot be considered to
E
F
be voluntary on account of the fact that all the co-accused
persons were produced before the Magistrate from the police
custody and were remanded back to police custody. Similarly,
Dayanidhi Patra@ Daya (A14) was produced from the police
custody for confession while Umakant Bhoi (A 13) made his
statement while on bail. Besides all confessions being
exculpatory and made after conspiracy ceased to be operative
G
and inadmissible.
· (ii) Inasmuch as recording of confessions of various
accused persons was done after the investigation was taken
.over by Jogendra Nayak (PW 55), 1.0. of the CBI which shows
H
948
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A the extent to which strong arm· tactics were used by the
investigating agency.
'
(iii) The statements of eye-witnesses are contradictory to
each other on all material points.
B ·
(iv) There are several circumstances which are
c
inconsistent with the fire started by arson from outside and
several circumstances consistent with the fire emanating from
inside of the vehicle and then spread to rest of the vehicle after
fuel tank caught fire.
(v) This Court in cases of appeals against acquittal has
held that when two views are possible, one in favour of the
accused should be accepted.
0
6. Mr. Dash, learned senior counsel appearing for the
accused Mahendra Hembram (A3) reiterating the above
submissions of Mr. Tulsi also pinpointed deficiency i"n the
prosecution case insofar as (A3) is concerned.
7. Mr. Vivek Tankha, learned Addi. Solicitor General, after
E taking us through oral and documentary evidence, extensively
refuted all the contentions of the learned senior counsel for the
accused and raised the following submissions:-
(i) The High Court committed an error in altering the death
F sentence into life imprisonment in favour of (A 1) and acquitting
all other accused except (A3). He pointed out that the
appreciation of the evidence by the High Court is wholly
perverse and it erroneously disregarded the testimony of twelve
eye-witnesses.
G
(ii) The High Court failed to appreciate the fact that the
three accused, namely, Mahendra Hembram (A3), Ojen @
Suresh Hansda (A7) and Renta Hembram (A10) belonging to
the same village were known to the eye-witnesses and,
therefore, there is no requirement to conduct Test Identification
H Parade (in short 'TIP').
-
-
RABINDRA KUMAR PAL @ DARA SINGH v.
949
REPUBLIC OF INDIA [P. SATHASIVAM, J.]
(iii) The High Court erred in acquitting 11 accused persons
A
on the sole ground that TIP was not conducted and, therefore,
identification by the eye-witnesses was doubtful.
(iv) The evidence of identification in Court is substantive ·
evidence and that of the identification in TIP is of corroborative
B
value.
(v) The High Court committed a serious erro.r in law in
~ disregarding the confessional statements made under Section
164 of the Cr.P.C. as well as the extra-jud.icial confessions
made by Dara Singh (A 1) and Mahendra Hembram (A3).
c
(vi) The High Court wrongly held inculpatory confessional
statements as exculpatory and on that ground rejected the
same. The High Court failed to appreciate that in their
confessional statements (A9), (A11), (A12), (A13) and (A14)
D
have clearly admitted their plan for committing the crim~.
(vii) The adverse observations against (PW 55) the
Investigating Officer of CBI, by the High Court are not warranted
and in any event not supported by any material.
E
(viii) Inasmuch as it was Dara Singh (A 1) who originated
-"J
and organized the heinous act and also prevented ~e
deceased persons from coming out of the burning vehicle, the
High Court ought to have confirmed his death sentence.
~
(ix) The reasons given by the High Court in acquitting 11
F
persons are unacceptable and the judgment to that extent is
liable to be set aside.
8. We have considered the rival submissions and perused
~'"""
all the oral and documentary evidence led by the prosecution
G
and defence.
9. With the various materials in the form of oral and ·
. documentary evidence, reasoning of the trial Judge a.nd the
ultimate decision ofthe High Court, we have to find out wh~ther H
950
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A the conviction and sentence of life imprisonment imposed on
B
Dara Singh (A1) and Mahendra Hembram (A3) is sustainable
-""
and whether prosecution has proved its case even against the
accused who were acquitted by the High Court.
Eye witnesses
10. According to the learned senior counsel for the
accused, the statements of eye-witnesses are corltradictory to
each other on all material points. It is his further claim that
exaggerated and improved version of the incident makes it
C difficult to place implicit reliance on the statements of any of
those witnesses. On the other hand, it is the claim of the
prosecution that the statements of eye-witnesses are reliable
and acceptable and it was rightly considered by the trial Court
and erroneously rejected except insofar as against Dara Singh
D (A 1) and Mahendra Hembram (A3) by the High Court.
(i) PW2, Basi Tudu, one of the prime eye-witness,
identified in dock the previously known accused of her village
Ojen Hansda. She was not examined by local police, however,
examined by the CID on 04.02.1999 and by the CBI on
E 05.06.1999. In herevidence, she stated that she is a Christian
by faith. Before the court, she deposed that her house is
located near the place of occurrence. She also stated that
Graham Staines along with his two sons came at Manoharpur
church after Makar Sankranti and stayed there in the night. He ·
F along with his two sons slept inside the vehicle. Inside the court,
during her deposition, she first wrongly identified accused Rajat
Kumar Das as accused Ojen Hansda. However, when she had
a better view of the accused in the court, she correctly identified
. Ojen Hansda as the person whom she saw among 60 persons
G holding torch lights and lathis going towards the church. She
stated that in the midnight, on hearing barking of dogs, she
woke up from sleep and came out of the house. .She found
about 60 persons going towards the church where the vehicles
of Graham Staines were parked. Those persons did not allow
H her to proceed further.