# [2006] Supp. 10 S.C.R. 662 - **Citation:** [2006] Supp. 10 S.C.R. 662 - **Court:** Supreme Court of India - **Decided:** 2006-12-12 - **Case number:** Criminal Appeal Nos. 8867868 of2005 - **Bench:** S.B. Sinha, Dal Veer Bhandari - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2006-supp-10-s-c-r-662-21324 - **Pages:** 67 ## Headnote Penal Code, 1860: ss. 120B/302 and 201134--Conspiracy and murder-Prosecution case C against four accused based on circumstantial evidence-Second accused impersonating as brother of first accused and signing some papers for sale of property-Other accused signing as witnesses-Dead body of brother of first accused found concealed in a newly erected platform in his houseExtra-judicial confession of first accused stating to have killed his brother as deceased was not agreeable to the sale of ancestral property-He did not D state other accused to have participated in the crime-Retracted judicial confession of second accused involving other accused--But stating that before taking to Magistrate for recordhg confession, he was taken to police station, tortured and tutored-No other evidence suggesting participation of other accused in crime-Held, there is no eye-witness of the incident- £ Signing of certain documents by one accused impersonating deceased and other accused signing as witnesses per se would not lead to conclusion that other accused agreed with first accused to eliminate his brother-In absence of any substantive evidence other accused cannot be convicted merely on basis of retracted confession and are, therefore, acquitted-First accused convicted u/s 302 and his sentence commuted to imprisonment for lifeF Retracted confession-Evidentiary value of-Circumstantial evidence. Evidence Act, 1872: Extra-judicial confession-Admissibility of in evidence-Held, law does not envisage taking on record entire confession by making it an exhibit G incorporating both admissible and inadmissible part thereof together-On facts, only that part of confession which is admissible would be leading to recovery of dead body and/or articles of deceased-Purported confession proceeded to state even the mode and manner in which deceased was allegedly killed-This part is not to be taken on record H 662 .... ALO KE NATH DUTT Av. STA TE OF WEST BENGAL 663 Confession before Magistrate-Recording of-Factors, besides A procedural safeguards, to be taken into consideration-Discussed-Code of Criminal Procedure, 197 3-s.164. s.24-Confession retracted stating that it was recorded after being tortured and tutored by police-Evidentiary value of-Held, retracted confession is a weak evidence-No judgment of conviction to be passed on B an uncorroborated retracted confession-Factors to be taken into consideration while testing veracity of a retracted confession-DiscussedCode of Criminal Procedure, 1973-Constitution of India, 1950-Articles 20(3) and 21. s.30-Proved confession-Affecting person making it, and co-accused- C Evidentiary value of s.114-Presumption-Plea of accused that before taking to Magistrate for recording his confession, he was taken to police station and tortured and tutored-Application filed to call for jail records to prove this-Record not produced-Trial court drawing inference that record had been destroyed- D Held, no such inference could be drawn in /aw-Court should give benefit of doubt to accused instead of prosecution. Appellants A-1 to A-4 were prosecuted for offences punishable under ss. 120B/302, 302/34 and 201134 IPC. The prosecution case was that A-1, E who had vices of gambling and horse racing etc. took advance from PW-15 and PW-8, to whom he intended to sell the house property of which he was a co-owner along with his other three elder brothers namely PWs 3,4 and deceased 'B' and one sister(PW-5). His ~Ider brother 'B' was livi.ng in the same hotise while his other two brothers were living separately. 'B' was not in favour of sale of the property; other brothers were not even aware of it. F The transactions with regard to sale of the property in favour of PW-15 and PW-8 were being made as if 'B' was a party thereto. A-2 was said to have been impersonating 'B' and signing several documents. A-1 to A-4 were alleged to have committed murder of 'B' in the night between 22/23.1.1994 and concealed the dead body by erecting a platform in the r ## Text _Characters 0–39,218 of 157,256. This is a partial read: ask again with offset=39218 for what follows._ A ALOKE NA TH DUITA AND ORS. v.. STA TE OF WEST BENGAL DECEMBER 12, 2006 B [ S.B. SINHA AND DAL VEER BHANDARI, JJ.] Penal Code, 1860: ss. 120B/302 and 201134--Conspiracy and murder-Prosecution case C against four accused based on circumstantial evidence-Second accused impersonating as brother of first accused and signing some papers for sale of property-Other accused signing as witnesses-Dead body of brother of first accused found concealed in a newly erected platform in his houseExtra-judicial confession of first accused stating to have killed his brother as deceased was not agreeable to the sale of ancestral property-He did not D state other accused to have participated in the crime-Retracted judicial confession of second accused involving other accused--But stating that before taking to Magistrate for recordhg confession, he was taken to police station, tortured and tutored-No other evidence suggesting participation of other accused in crime-Held, there is no eye-witness of the incident- £ Signing of certain documents by one accused impersonating deceased and other accused signing as witnesses per se would not lead to conclusion that other accused agreed with first accused to eliminate his brother-In absence of any substantive evidence other accused cannot be convicted merely on basis of retracted confession and are, therefore, acquitted-First accused convicted u/s 302 and his sentence commuted to imprisonment for lifeF Retracted confession-Evidentiary value of-Circumstantial evidence. Evidence Act, 1872: Extra-judicial confession-Admissibility of in evidence-Held, law does not envisage taking on record entire confession by making it an exhibit G incorporating both admissible and inadmissible part thereof together-On facts, only that part of confession which is admissible would be leading to recovery of dead body and/or articles of deceased-Purported confession proceeded to state even the mode and manner in which deceased was allegedly killed-This part is not to be taken on record H 662 .... ALO KE NATH DUTT Av. STA TE OF WEST BENGAL 663 Confession before Magistrate-Recording of-Factors, besides A procedural safeguards, to be taken into consideration-Discussed-Code of Criminal Procedure, 197 3-s.164. s.24-Confession retracted stating that it was recorded after being tortured and tutored by police-Evidentiary value of-Held, retracted confession is a weak evidence-No judgment of conviction to be passed on B an uncorroborated retracted confession-Factors to be taken into consideration while testing veracity of a retracted confession-DiscussedCode of Criminal Procedure, 1973-Constitution of India, 1950-Articles 20(3) and 21. s.30-Proved confession-Affecting person making it, and co-accused- C Evidentiary value of s.114-Presumption-Plea of accused that before taking to Magistrate for recording his confession, he was taken to police station and tortured and tutored-Application filed to call for jail records to prove this-Record not produced-Trial court drawing inference that record had been destroyed- D Held, no such inference could be drawn in /aw-Court should give benefit of doubt to accused instead of prosecution. Appellants A-1 to A-4 were prosecuted for offences punishable under ss. 120B/302, 302/34 and 201134 IPC. The prosecution case was that A-1, E who had vices of gambling and horse racing etc. took advance from PW-15 and PW-8, to whom he intended to sell the house property of which he was a co-owner along with his other three elder brothers namely PWs 3,4 and deceased 'B' and one sister(PW-5). His ~Ider brother 'B' was livi.ng in the same hotise while his other two brothers were living separately. 'B' was not in favour of sale of the property; other brothers were not even aware of it. F The transactions with regard to sale of the property in favour of PW-15 and PW-8 were being made as if 'B' was a party thereto. A-2 was said to have been impersonating 'B' and signing several documents. A-1 to A-4 were alleged to have committed murder of 'B' in the night between 22/23.1.1994 and concealed the dead body by erecting a platform in the room. A-1 made an extra judicial confession before PWs-3, 4,6 and 15 and some tenants that he G had throttled 'B' to death. When interrogated by police A-1 made a confession that he had concealed the dead body of' B' in the newly constructed platform · in the room. The platform was dismantled and a skeleton was recovered which was identified to be of'B'. A-2 was also made a statement under s. 164 Cr.P.C. H 664 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A before Metropolitan Magistrate on 31.3.1994 which he later retracted. The trial court relied upon the circumstantial evidence and the confessions and convicted A-1, A-2 and A-3 under ss. 302/1208, 302/34 IPC and sentenced them to death. A-4 was found guilty under s.302/34 IPC and was sentenced to imprisonment for life. All the four accused were also convicted under s.201/ B 34. The High Court found no ground to interfere with the judgment and order of the trial court. Aggrieved, the accused filed the present appeals. It was contended for the appellants, inter a/ia, that (1) the circumstantial evidence brought on record was not sufficient to bring home the charge of conspiracy against the appellants to commit the murder; (2) Courts below C erred in not distinguishing between a larger conspiracy to commit a murder and a relatively smaller conspiracy for impersonation of deceased by A-2 and committing the offence of forgery and cheating; (3) that purported extra judicial confession made by A-1 was confined to acceptance of his own guilt and as such all the appellants could not have been convicted u/s 302/34 IPC; (4) judgment of conviction could not have been arrived at on the basis of judicial D confession made by A-2 which was retracted and was thus of a weak evidentiary value especially when there was no corroboration thereof; and (5) the case being based on circumstantial evidence and there being no eye-witness, the prosecution could not be said to have established all the links in the chain so as to prove commission of offence by appellants. E F On the question : Whether A-1 hatched a conspiracy with the other appellants to do away with his brother and dispose of his dead body, Allowing the appeals of A-2, A-3 and A-4, and partly allowing the appeal of A-1, the Court HELD:l.1. There is no direct evidence to show that other appellants also conspired with A-1 to kill his brother and dispose of his dead body. Their presence had not been noticed by any of the witnesses. Nobody saw them together in the house. Nobody saw A-2 coming to the house even once. It is true that it is difficult to have direct evidence of conspiracy, but to prove G conspiracy hatched to commit a heinous crime, circumstantial evidence brought on record must be such which would have no loose ends to tie. 1681-E] 1.2. From the evidence of PWs 7,8,10,14,15 and 16, though it is sufficiently clear that A-1 and A-2 conspired to sell the property, but their H evidences taken in entirety, however, do not lead to the conclusion that they ALO KE NATH DUTT Av. STA TE OF WEST BENGAL 665 conspired to murder the deceased. (682-D) A 1.3. So far as A-1 is concerned, having regard to the charges framed, both the circumstantial evidence as also the extra judicial confession made by him are relevant. His further statements leading to the recovery of the dead body as also recovery of articles belonging to his deceased brother are also relevant. It has also been proved that he sold some ofthe articles belonging B to the deceased. (691-H; 692-Al 2.1. The confession made by A-1 has not been brought on record in a manner contemplated by law. Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible C and inadmissible part thereof together. Only that part of confession which .is admissible would be leading to the recovery of dead body and/or recovery of articles of deceased. The purported confession proceeded to state even the mode and manner in which deceased was allegedly killed. It should not have been done. It may influence the mind of the court. (692~B] State of Maharashtra v. Damu Slo Gopinath Shinde & Ors., (2000] 6 SCC 269; Anter Singh v State of Rajasthan, (2004) 10 SCC 657 and Dhananjoy Chatterjee@ Dhana v. State of West Bengal, (1994) J SCC 220, referred to. D 2.2. Prosecution witnesses have deposed that A-1 made confession before E them; and in view of the evidences on record, it has to be held that the same was voluntary in nature. The confession having been spontaneous in the form of natural response to a stressful stimulus made at the spur of the moment, ther~ is no reason as to why t~e same should be discard~d. A-1 made extra judicial confession not only in presence of his own elder brothers PW-3 and PW-4, but also in the presence of his nephew (PW-6), the intending purchaser F of the house (PW-15) as also the two tenants of the premises, PW-18 and PW-19. The evidences of these witnesses are consistent and there is no reason to disagree with findings of the courts below in this behalf. [694-F; 695-C] Heramba Brahma and Anr. v. State of Assam, AIR (1982) SC 1595, G distinguished. State of Rajasthan v. Raja Ram, [2003] 8 SCC 180; Gagan Kanojia and Anr. v. State of Punjab Criminal Appeal Nos. 561-62, 563 of 2005, decided on 24.11.2006; Nazir Khan & Ors, v. State of Delhi, [2003} 8 SCC 461; Ram Khilari v. State of Rajasthan., [1999] 9 SCC 89; and Namala Subba Rao v. H 666 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A State of A.P., [2006] (10) SCALE 253; State of Rajasthan v. Kashi Ram, (2006) 1 J SCALE 440; and Ku/winder Singh v. State of Punjab Criminal Appeal No. 675 of 2006 decided on 05.12.2006, relied on. 2.3. In his confession A-1 takes the entire blame on himself. The courts below have not erred in opining that extra judicial confession of A-1 is B not in any way doubtful. The circumstances enumerated by the trial Judge in the light of the evidences brought on record and the extra judicial confession made by A-1 lead to only one conclusion that the dead body recovered was that of the deceased and it was A-1 who was responsible for his death. On the evidence on record, the involvement of A-1 is proved beyond any shadow of C doubt. He has, therefore, rightly been convicted of charges leveled against him. [697-G; 694-C) 3.1. Appellants other than A-1, had not been seen by anybody else immediately before or after the alleged occurrence. In fact, there is no eyewitness to the alleged occurrence. The neighbours were also not examined to D show that any untoward incident had taken place. There is furthermore no evidence on record to show that any of A-2 to A-4 had even taken part in concealment of the dead body. The prosecution did not examine any witness · to establish the case as to how the other appellants had helped A-1 in procuring bricks and cement or whether any other person had helped him in concealment of the dead body. So far as extra-judicial confession of A-1 is concerned, he E implicated only himself and did not implicate any other person in the conspiracy. Thus, there is no evidence in regard to the meeting of mind witli reference to the plot of murder. A-1 evidently was in a desperate situation. He required money. Others did not. Motive on the part of other appellants is not explicit. Therefore, others cannot be treated to be his accomplice. Even p the statements made by him, leading to recovery of the dead body or other articles belonging to the deceased, do not implicate the other appellants in any manner whatsoever. [698-E, D, G, HJ 3.2. Assuming that other appellants conspired with A-1 for selling the house. Signing of certain documents, impersonation of deceased by A-2 or G the other appellants' signing the said documents as witnesses, per se would not lead to the conclusion that at any point of time they had agreed with A-1 that deceased should be eliminated. There is no eye-witness to the occurrence. Nobody has noticed any suspicious conduct on part of other appellants indicating their role in committing murder or disposing the dead body. While H dealing with a case of grave nature like the present one, there is always a ALO KE NATH DUTT Av. ST A TE OF WEST BENGAL 667 danger that conjectures and suspicion may take the place of legal truth. This A court has laid down guidelines from time to time in regard to a finding of guilt solely on the basis of circumstantial evidence in a number of cases. (699-A-DJ Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR (1952) SC 343; Sharad Birdhichand Sarda v. State of Maharashtra, AIR B (1984) SC 1622 = (1984) 4 SCC 116; Kashmira Singh v. State of MP., AIR (1952) SC 159; Swaran Singh Rattan Singh v. State of Punjab, AIR (1957) SC 637; Mousam Singha Roy and Ors. v. State of West Bengal, [2003) 12 SCC 377; Shankaria v. State of Rajasthan, (1978) 3 SCC 435 and Anil@ Raju Namdev Patil v. Administration of Daman and Diu, Daman and Anr., C (2006) 12 SCALE 516, relied on. Muthuswami v. State of Madras, AIR (1954) SC 4, referred to. 4.1. As regards retracted confession of A-2, considering the guarantee under Article 20 (3) and also humanizing standards under Article 21 of the Constitution of India, the Court need to tread cautiously while construing D retracted confession. Although such caution is subject to some exceptions such as per se evidence of the motivating factors of retraction or retraction based on extraneous circumstances. To withdraw from what has been said previously needs to be interpreted in the vein of right to remain silent as an extension of this civil liberty. In similar vein the law on retracted confession E must be judged in the context of each case. (7~4-G; 705-G, H; 706-AJ Smt. Nandini Satpathy v. P.L. Dani and Anr., AIR (1978) SC 1025; State (N.C. T. of Delhi) v. Navjot Sandhu @ Afsan Guru, [2005] 11 SCC 600; Directorate of Enforcement v. Deepak Mahajan and Anr., [1994) 3 SCC 440 and Balkishan A. Devidayal v. State of Maharashtra, [1980] 4 SCC 600, p referred to. 4.2. In a case, where confession is made in the presence of a Magistrate conforming to the requirements of Section 164 of the Code of Criminal Procedure, 1973, if it is retracted at a later stage, the court should probe deeper into the matter. Judicial confession must be recorded in strict G compliance of the provisions of Section 164 of the Code. It is to be borne in mind that despite the fact that procedural safeguards contained in Section 164. may be satisfied, the courts must also look for truthfulness and voluntariness thereof. Where there is no objective material available for verifying the conditions in which the confession was retracted, the spirit of H section 24 of the Evidence Act (irrelevance of confession caused by inducement) 668 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A may be extended to retracted confession. An inverse presumption must be drawn from absence of materials. (707-B, D, F-H; 708-AJ Babubhai Udesinh Parmar v. State of Gujarat, (2006] 12 SCALE 385, relied on. B 4.3. It is a well-known principle of law that a retracted confession is a week evidence. In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for corroboration of material particulars by independent and cogent evidence. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature. Although C retracted confession is admissible, the same should be looked with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads e''iuence to the court [712-F; 708-B; 710-BJ Sidharth and Ors v. State of Bihar, (2005] 12 SCC 545 and State of Tamil D Nadu v. Kutty@ Lakshmi Narsimhan, (2001) 6 SCC 550, distinguished. Bharat v. State of UP, [1971) 3 SCC 950; Kora Ghasi v. State, [1983) 2 SCC 251, Preetam v. State of MP, [1996) 10 SCC 432, and Bhagwan Singh v. State of MP, (2003) 3 SCC 21, referred to. E · 4.4. No judgment of conviction shall be passed on an uncorroborated retracted confession. The court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthful and voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be F compromised. (709-G) 4.5. In the instant case, it is true that sufficient time was given (two days) to A-2 to confirm his willingness to confess and finalize the contents of the confession. The reasons for which the confession had been retracted and th~ subsequent events wherein the appellants intended to prove a certain state G of affairs, namely, although A-2 was supposed to have been produced directly from the jail to the Magistrate concerned but in fact he was taken out of jail 2 Y2 hours before the time fixed therefor, could be a pointer to the fact as to whether the confession was a voluntary one. He was, as subsequently asserted by him, first taken to the Police Station and was threatended and tortured and was also tutored as to what he should tell the Magistrate in his confession. H PW-48the1.0. was cross examined on this point and suggestions were also ALOKENATHDUTTA v. STATE OF WEST BENGAL 669 given to him which he denied. (711-G-H; 714-E) 4.6. The fact that the accused was produced from the police custody is accepted. But it was considered in a routine manner. The Magistrate in his evidence could not even state as to whether the appellants had any injury on his person or whether there had been any tainted marks therefor. Further, A on 4. J0.2002, the lawyer appearing for appellant no. 2 made a submission B that an application had been filed praying for calling of some records from the Presidency Jail. No order had been passed thereupon. It was contended that he had been taken from Jail at 10.00 a.m .. The records were directed to be produced. However from the order sheet dated 14.11.2002 it appears that the said records had not been produced. On 17.01.2003 a prayer had again C been made on behalf of A-2 that steps would be taken for production of the documents in terms of order dated 04.10.2002. [707-E; 710-C-D] 4. 7. It is expected in a situation of this nature that the court will issue a suo motu direction to the authority to produce the records. There was absolutely no reason as to why the records would not be produced by the Jail D authorities for a period of two months. If the said records had not been produced, it was obligatory on the part of the court to issue a suo motu notice. If a public authority does not produce a document despite being called upon to do so; an adverse inference is to be drawn. Converse is not the law. (711-Fl 4.8. There was no reason for the court to draw an adverse inference E that the records had been destroyed. No such inference could be drawn in law either in terms of Section 114 of the Evidence Act or any other law. The period during which such documents are preserved under the provisions of the jail manual have not been referred to. No evidence was brought on record to show that the documents had in fact been destroyed. The least the jail authorities could do was to produce the destruction register. (712-C] F 4.9. In the aforementioned backdrop, the court should give the benefit of doubt to the accused instead of the prosecution. The trial Judge should not have closed the case. He should have invoked his jurisdiction under Section 311 of the Code of Criminal Procedure in the interest of justice and instead of blaming the defence for non-examination of the Superintendent of Jail, the G court itself should have called upon authorities to produce the document The presumption raised by the court in this behalf is wholly misconceived. (712-D) 5.1. In the instant case, there is no independent evidence adduced on behalf of the prosecution to prove conspiracy with regard to cheating and H 670 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A forgery of documents and impersonation. They had been sought to be proved by the supplementary circumstantial evidences. The courts below have failed to notice the legality of the judicial confession. There did not exist any evidence against A-2. The courts apparently considered the confessions of A-1 and then started connecting links therefrom and again came back to the confession for completing the chain. (714-F-G-H] B 5.2. The evidences merely established to defraud the intending purchasers. At that point of time, A-1 thought it fit to do away with his brother as he was proved to be an obstruction in his attempt to dispose of the property. The other appellants might or might not have joined hands with him, but unless there exist sufficient and cogent reasons to link them with the alleged crime C committed by A-1, it may not be said that they are also guilty thereof. . (715-B-C) 5.3. Furthermore, so far as the accusations against A-3 and A-4 are concerned, the only evidence against them was the judicial confession of A2. The same was admissible against them only under Section 30 of the Evidence D Act. It is not in dispute that apart from general evidence in regard to commission of forgery etc., only evidence of involvement of A-3 and A-4 is the judicial confession made by A~2. The extra judicial confession made by A-1 before the prosecution witnesses does not implicate these appellants. Only in his judicial confession, A-2 has assigned roles to these accused persons as having common intention to commit the offence of murder of deceased with E A-1. (715-D-F] 5.4. The expression 'the court may take into consideration such confession' appearing in s.30 of Evident Act is significant. It signifies that such confession by the maker as against the co-accused should be treated as a piece of corroborative evidence. In absence of any substantive evidence, no F judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra judicial confession or a judicial confession and least of all on the basis of retracted confession. What is furthermore required to be considered is that if a retracted confession itself is weak evidence, the question of conviction of a co-accused on the basis thereof would not arise. Therefore, this part of the judgment of the trial judge cannot be sustained. G (716-B-C) Ram Parkash v. The State of Punjab, (1959) SCR 1219; Bhuboni Sahu v. R., AIR (1949) PC 257; Hari Charan Kurmi and Jogia Hajam v. State of Bihar, (1964) 6 SCR 623; Subramania Goundan v. The State of Madras, AIR (1958) SC 66; Pyare Lal Bhargava v. State of Rajas than, AIR (1963) SC H 1094; Puran v. The State of Punjab, AIR (1953) SC 459; Balbir Singh v. State •' ALO KE NATH DUTT Av. STATE OF WEST BENGAL 671 of Punjab, AIR (1957) SC 216; Nand Kumar and Ors. v. State of Rajasthan, A . (1963) Crl. Ll 702; State of Maharashtra v. Bharat Chaganlal Raghani and Ors., (2001] 9 SCC I; Jameel Ahmed and Alir v. State of Rajas than, (2003) 9 SCC 673 and Parmananda Pegu v. State of Assam, AIR (2004) SC 4197, referred to. R .. v. Thompson, (1893), 2 QB 12, 18 ; R v. Babula/, 6 A 509, 542, 543, B referred to. Sarkar on Evidence, 15th Edn., Volume 1- page 466, referred to. 6.1. Sentencing indisputably is a part of criminal jurisprudence. More importantly, in death penalty references sentencing issue requires serious C deliberation. Cases of this nature warrant objective evaluation ofindicia and legal thresholds. When a statute provides for death penalty, so long as the . same is not ultra vires, application thereof cannot be altogether eliminated. But keeping in view the decision of the Constitution Bench of this Court, the juriStliction of the Court in this behalf is limited. Death penalty can be D awarded only if in the opinion of the court, the case answers the description of rarest of rare cases. What would constitute a rarest of rare cases must be determined in the fact situation obtaining in each case. (726-F; 727-C) Union of India (UOI) and Ors. v. Devendra Rai, (2006) 2 SCC 243; State of MP. through CBI and Ors. v. Pa/tan Mal/ah and Ors., (2005) 3 SCC 169; E Bachan Singh v. State of Punjab, [1980) 2 SCC 684 =AIR (1980) SCC 898; Machhi Singh and Ors. v. State of Punjab, (1983) 3 SCC 470; Sevaka Perumal v. State of Tamil Nadu, AIR (1991) SC 1463; Devender Pal Singh v. State of NCTof Delhi, AIR (2002) SC 1661; Dhananj~y Chatterjee@ Dhana v._State of West Bengal & Ors., (2004) 9 SCC 759; Saibanna v. State of Karnataka, JT (2005) 5 SC 564 = (2005) 4 SCC 165; Ram Anup Singh and Ors v. State F of Bihar, [2002) 6 SCC 686, Bachittar Singh and Anr v. State of Punjab, [2002) 8 SCC 125; Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3 SCC 127; State of Maharashtra v. Man Singh, [2005( 3 SCC 131; Rama Subramanian v. State of Kera/a, AIR (2006) SC 639 ; State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224; State of UP. v. Salish, (2005) 3 SCC 114; G Holiram Bordoloi v. State of Assam, 120051 3 SCC 793 and Pratap Singh v. State of Jharkhand and Anr., (2005( 3 SCC 551, relied on. Jaswant Gir v. State of Punjab, 12005] 12 SCC 438; Amr ii Singh v. State of Punjab, [2006) 11 SCALE 309; Major Singh and Anr. v. State of Punjab, [2006) to SCALE 354; Renuka Bai@ Rinku@ Ratan & Anr. v. State of H 672 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A Maharashtra, 12006] 7 SCC 442, 12006] 8 SCALE 604; Gurmeet Singh v. State of Uttar Pradesh, [2005] 12 SCC 107; Mithu v. State of Punjab, [19831 2 SCR 690; Sahdeo and Ors etc. v. State of UP., [2004] 10 SCC 682; Sheikh /shaqe and Ors. v. State of Bihar, (1995] 3 SCC 392; Kishori v. State of Delhi, 11999) 1SCC148; Ba/raj v. State of UP., 11994) 4 SCC 29; Jashubha B Bharatsing Gohil and Ors., [1994) 4 SCC 353; and Union of India, (UOI) and Ors. v. Devendra Rai, [2006) 2 SCC 243, referred to. c Atkins v. Virginia, 536 U.S. 304 (2002); Reyes v. R ,(2002) UKPC 11 : 12 BHRC 219; Hughes, R v. (Saint Lucia), (2002) UKPC 12; Roper v. Simmons, 543 U.S. 551 (2005), referred to. 6.2. The facts of this case do not make out the case to be one of rarest of rare cases. The manner of commission of offence may be gruesome. Deceased was killed while he was in deep slumber, but the method applied cannot be said to be cruel. The reason for commission of the murder is greed of money on the part of A-1 which evidently arose out the result of his bad D habits. He was pu~hed back to such a situation where he thought that he had no other option but to kill his brother. The prosecution has not brought out any material to show that A-1 had not been maintaining good relations with his deceased brother. There might have been difference of opinion between the brothers in regard to the question of sale of the house, but there is nothing to say one way or the other in this behalf. Besides, in the facts and E circumstances of the case, prosecution having failed to prove the case of conspiracy against A-1 the case cannot be said to be one constituting rarest of rare cases. There is no special reason for awarding death penalty which is imperative. There are some precedents of this Court which are authorities for the proposition that if the offence is proved by circumstantial evidence F ordinarily death penalty should not be awarded. Following the said precedents instead and, thus, in place of awarding the death penalty, sentence of rigorous imprisonment for life is imposed as against A-1. Furthermore, there is no special reason for awarding death penalty which is imperative. 1725-G; 727-F-G; 728-B) G Sahdeo and Ors etc. v. State of UP., 12004110 SCC 682; Sheikh Ishaqe and Ors v. State of Bihar, 11995) 3 SCC 392, relied on. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 8867868 of2005. From the final Judmgnet and Order dated 4.3.2005 of the High Court of H Calcutta at Calcutta in Death Reference No.2 of2003 and Crl. A. Nos. 396, 489/ ALO KE NATH DUTT Av. ST A TE OF WEST BENGAL (S.B. SINHA, J.] 673 2003. A WITH Criminal Appeal No. 875 of2005. Pradip Ghosh, Manohar Singh Bakshi (A.C.) Rauf Rahim and Mohd. B Iqbal for the Appellants. Altaf Ahmed, A vijit Bhattacharjee, Kaji Safiulla, Saumya Kundu and Bikash Kargupta, for the Respondent. The Judgment of the Court was delivered by S.B. SINHA, J. INTRODUCTION : Premise No.2C, a three storied building situate at Beadon Street situated . in the town of Kolkata, belonged to one Jagannath Dutta. He transferred the c said property in favour of his wife Arunamoyee Dutta on certain terms and D conditions wherewith we are not concerned. She had four sons and one daughter. During her life time, tWo of the sons, namely, Biswanath Dutta (deceased) and Aloke Nath Dutta, (appellant), were residing with her. Biswanath used to stay at the second floor with some tenants occupying some portions thereof; whereas Aloke Nath Dutta used to reside on the first floor. Her daughter Anuradha Das was married and was residing at Jadavpore. Two E other sons, namely, Amar Nath Dutta (PW-4) and Samar Nath Dutta (PW-3) were residing in the towns of Chandannagore and Bararast respectively. Arunamoyee Dutta died intestate in April, 1993. Aloke Nath was working with Kolkata Police, whereas Biswanath was employed in the United Bank of India. Biswanath was a bachelor, whereas Aloke Nath is married. Mamata F one of the appellants herein, is Aloke Nath's wife. Sister of Mamata and her husband Shib Sankar Roy @ Gobinda@ Babu Roy were also residing on the first floor. Appellants herein are alleged to have entered into a conspiracy to commit the murder of Biswanath on 22.01.1994 at the first floor of the said G premises, the details whereof, we would deal with hereinafter. PROSECUTION CASE: Aloke Nath had many vices. He was a spendthrift. He was a womanizer H 674 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R. A and spent a lot of money in gambling and horse racing etc. He intended to sell the said house property, wherefor he entered into agreements for sale with one Nandlal Singh as also with one Arunmoy Bose. Arunmoy Bose advanced a sum of Rs.65,000/- to him. Nandlal Singh (PW-15) also had advanced various sums of money to Aloke Nath from time to time. He on the advice B of his advocate Bikash Pal (PW-14) refused to advance any further sum till the time he was put in possession of the room of the second floor and the Puja Room; which was promised to· be delivered on 23.01.1994. Prosecution story is that the deceased was not in favour of sale of the said property. The transactions with regard to the sale of the said property, C in favour of the said Nandlal Singh and Arunmoy Bose, however, were being conducted, as if Biswana