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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.47-48 OF 2013

Ashok Debbarma @ Achak Debbarma .. Appellant

Versus

State of Tripura .. Respondent

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1. We are, in this case, concerned with a tragic incident  

in  which  a  group  of  Armed  Extremists  at  Jarulbachai  

village in the night of 11.2.1997, set fire to twenty houses  

belonging to a group of linguistic minority community of  

Bengal settlers, in which 15 persons lost their lives, which

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included  women  and  children  and  causing  extensive  

damage to their properties.   

2. The  Takarajala  Police  Station,  West  Tripura  got  

information about  the incident  at  about  11.00 p.m.  on  

11.2.1997  from  Jarullabachai  DAR  Camp  stating  that  

extremists  had  set  on  fire  a  number  of  houses  at  

Jarulbachai  village  and  that  the  people  had  been  shot  

dead and injured grievously.    Information so  received  

was  entered  into  the  General  Diary  at  the  Takarajala  

Police  Station  in  the  form  of  Entry  No.292  dated  

11.2.1997.   PW18 (Officer-in-Charge) of Takarajala Police  

Station visited the Jarullabachai DAR Camp, cordoned off  

the area, and conducted search.  Most of the houses of  

the village were found gutted by fire.   On the very night  

of the occurrence, as many as 13 dead bodies were found  

lying  at  various  places  and  three  persons  were  found  

lying injured.   A formal written information, as regards  

the occurrence, was received by the investigating officer  

from  one  Gauranga  Biswas  (PW2)  from  the  place  of

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occurrence.  Based on the written information, which was  

so received at the place of occurrence, Takarajala Police  

Station  Case  No.12/97  under  Sections  

148/149/302/326/307/436 IPC read with Section 27(3) of  

the Arms Act, 1959 was registered.  Later, more number  

of dead bodies were found and number of dead persons  

increased to 15, so also the number of injured persons.  

Dead bodies as well as injured persons were taken to GB  

Hospital at about 4.00 p.m. on 12.2.1997.   Inquests were  

held on the dead bodies and post-mortem examinations  

were also conducted.   PW.18,  the Investigating Officer,  

seized vide seizure list (Ex.11), two empty cartridges and  

some ashes from the place of occurrence.   Looking at the  

serious nature of the evidence, investigation was handed  

over to the Criminal Investigation Department (CID) and  

PW20 (a DSP) was entrusted with the investigation.

3. PW20,  on  completion  of  the  investigation,  filed  a  

charge-sheet  under  Sections  148/149/302/326/307/436  

IPC read with Section 34 IPC and 27(3) of the Arms Act,

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1959  read  with  Section  34  IPC  against  11  persons,  

including (1) Rabi Deb Barma, (2) Gandhi Deb Barma, (3)  

Mantu  Deb  Barma,  (4)  Sambhuram  Deb  Barma,  (5)  

Budhraj Deb Barma.   Charge-sheet was also filed against  

some  other  accused,  who  were  found  absconding,  

namely, (1) Subha Deb Barma, (2) Sandhya Deb Barma,  

(3) Samprai Deb Barma, (4) Falgoon Deb Barma, (5) Bijoy  

Deb Barma, (6) Budh Deb Barma, (7) Mangal Deb Barma,  

(8)  Sankar  Deb  Barma,  (9),  Kaphur  Deb  Barma,  (10)  

Sandhyaram Deb Barma alias Phang and (11) Ashok Deb  

Barma (i.e. the Appellant herein).  Out of the 11 persons  

named  in  the  charge-sheet,  chargers  were  framed  

against  five  persons  under  Sections  326,  436 and 302  

read with Section 34 IPC and also Section 27(3) of the  

Arms Act, 1959 read with Section 34 IPC, which included  

the Appellant herein.  All  the above-mentioned persons  

pleaded not guilty and claimed to be tried.   

4. The  prosecution,  in  order  to  establish  its  case,  

examined 20 witnesses.  Two accused persons, namely,

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Gandhi  Deb Barma and Ashok  Deb Barma alias  Ashok  

Achak (i.e.  the Appellant  herein)  were examined under  

Section 313 CrPC and, in their examinations, they denied  

to have committed the alleged offences.   Due to want of  

evidence, the trial Court acquitted three persons vide its  

order dated 23.4.2005 under Section 232 CrPC and only  

two accused persons, namely, Gandhi Deb Barma and the  

Appellant herein were called upon in terms of Section 232  

CrPC  to  enter  on  their  defence  and,  accordingly,  the  

defence adduced evidence by examining two witnesses.  

5. The  Additional  Sessions  Judge,  West  Tripura,  

Agartala,  having  found  the  Appellant  and  Gandhi  Deb  

Barma guilty of the offences under Sections 326, 436 and  

302 read with Section 34 IPC and also Section 27(3) of  

the Arms Act,  1959 read with Section 34 IPC,  declared  

both the accused guilty of the offences aforementioned  

and  convicted  them  accordingly  vide  judgment  dated  

7.11.2005, on which date Gandhi Deb Barma was absent  

since  he  was  absconding.   Judgment  was,  therefore,

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pronounced by the Sessions Judge in the absence of the  

co-accused  in  terms  of  Section  353(6)  CrPC.   The  

Additional  Sessions  Judge  then  on  10.11.2005,  after  

hearing the prosecution as well  as the accused on the  

question  of  sentence,  passed  an  order  sentencing  the  

Appellant  to  death  on  his  conviction  under  Sections  

148/149/302/326/307/436 IPC read with Section 27(3) of  

the Arms Act, 1959.   

6. The Additional Sessions Judge in terms of provisions  

contained in Section 366 (1) CrPC referred the matter to  

the  High  Court  for  confirmation  of  death  sentence  

awarded  to  the  Appellant,  which  was  numbered  as  

Criminal  Reference  No.02/2005.    The  Appellant  also  

preferred Criminal Appeal (J) 94/2005.  Both the Appeals  

as well as the Reference were heard by the High Court.  

The  High  Court  vide  its  judgment  and  order  dated  

5.9.2012 set aside the conviction of the Appellant under  

Section 27(3) of the Arms Act, 1959.   However, the death  

sentence under Section 302 IPC read with Section 34 IPC,

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in  addition  to  the  sentence  passed  for  offence  under  

Sections  326  and  436  read  with  Section  34  IPC,  was  

sustained,  against  which  these  Appeals  have  been  

preferred.  

7. Shri  T.R.  Venkita  Subramoniam,  learned  counsel  

appearing  for  the  Appellant,  submitted  that  the  

prosecution  has  miserably  failed  to  establish  beyond  

reasonable doubt the involvement of the Appellant in the  

incident in question.  Learned counsel pointed out that  

even  though  20  witnesses  were  examined,  only  two  

witnesses viz. PW10 and PW13 in their deposition in the  

Court had mentioned the name of the Appellant, which is  

nothing  but  an  improvement  of  the  prosecution  case,  

especially when the Appellant was not named in the FIR.  

Learned counsel also pointed out that PW10 and PW13  

had not  mentioned the name of  the  Appellant  in  their  

statements made to the Police under Section 161 CrPC.  

Learned counsel placed reliance on the judgment of this  

Court  in  Tahsildar  Singh  and  another  v.  State  of  

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U.P.  AIR  1959  SC  1012  and  Shashidhar  Purandhar  

Hegde and another v. State of Karnataka (2004) 12  

SCC 492 and submitted that the omission to mention the  

name of the Appellant in the FIR as well as in the Section  

161  statement  was  a  significant  omission  which  may  

amount  to  contradiction  and  the  evidence  of  those  

witnesses should not have been relied upon for recording  

conviction.   

8. Learned  counsel  also  pointed  out  that  the  

prosecution completely erred in not conducting the Test  

Identification  Parade.   Consequently,  no  reliance  could  

have been placed on the statement of witnesses stating  

that  they  had  seen  the  Appellant  participating  in  the  

incident.  Placing reliance on the judgment of this Court in  

Dana  Yadav  alias  Dahu  and  others   v.  State  of   

Bihar (2002) 7 SCC 295, learned counsel pointed out that  

ordinarily  if  the  accused  is  not  named  in  the  FIR,  his  

identification  by  the  witnesses  in  Court  should  not  be  

relied upon.    Learned counsel also submitted that the

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High Court has committed an error in taking note of the  

fact that the Appellant was absconding immediately after  

the incident.  Such a presumption should not have been  

drawn  by  the  Court,  especially  when  the  question  

regarding abscondance was not put on the Appellant in  

the  statement  recorded  while  examining  him  under  

Section 313 CrPC.  Learned counsel  placed reliance on  

the judgment  of  this  Court  in  Shamu Balu Chaugule  

v. State of Maharashtra (1976) 1 SCC 438, S. Harnam  

Singh  v.  State  (Delhi  Admn.)  (1976)  2  SCC  819,  

Ranvir Yadav v. State of Bihar (2009) 6 SCC 595 and  

Hate  Singh  Bhagat  Singh  v.  State  of  Madhya  

Bharat  AIR 1953 SC 468.   Learned counsel  submitted  

that,  in  any view,  this  is  not  a  case which falls  in  the  

category  of  rarest  of  rare  case  warranting  capital  

punishment.   

9. Learned counsel  submitted that the appellant is  a  

tribal  coming  from  lower  strata  of  the  society,  totally  

alienated from the main stream of the society and such

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extremist’s upsurge might have occurred due to neglect  

and frustration.  Further, it was pointed out that, seldom,  

people like  the appellant  get  effective  legal  assistance  

and while applying the RR test, the question whether the  

appellant had got proper legal assistance, should also be  

examined.   Learned  counsel,  after  referring  to  few  

judgments of the U.S. Supreme Court, submitted that the  

Court, while considering the question of death sentence,  

should  also  examine  whether  there  is  any  “residual  

doubt” over the guilt of the accused.   

10. Shri  Gopal  Singh,  learned  counsel  for  the  State,  

highlighted the manner in which the entire operation was  

executed  by  a  mob  consisting  of  30  to  35  persons.  

Learned counsel submitted that they mercilessly fired at  

women  and  children  and  others  with  latest  arms  and  

ammunitions by killing as many as 15 persons, leaving  

large  number  of  persons  injured.    Learned  counsel  

pointed out  that  they set  ablaze various huts in  which  

poor  and  illiterate  persons  were  living.   Many  of  the

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persons who participated in the incident were known to  

the locals and the prosecution has examined as many as  

20 witnesses, of which the evidence tendered by PW10  

and PW13 was very crucial so far as the involvement of  

the Appellant is concerned.   Learned counsel pointed out  

that the Courts have rightly believed the evidence of the  

above-mentioned witnesses and the mere fact that the  

Appellant’s name did not figure in the initial complaint or  

in  the  statement  under  Section  161  CrPC  would  not  

absolve him from the guilt, since the involvement of the  

appellant  has  been  proved  beyond  reasonable  doubt.  

Learned counsel also submitted that there is no necessity  

of  conducting  the  Test  Identification  Parade  since  the  

accused persons were known to the witnesses.   Learned  

counsel  also  submitted  that  all  relevant  incriminating  

questions were put by the Court to the accused while he  

was examined under Section 313 CrPC and the answers  

given  by  the  accused  would  be  sufficient  to  hold  him  

guilty  of  the  charges  levelled  against  him.   Learned  

counsel also submitted that both the trial Court as well as

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the High Court have correctly appreciated the oral and  

documentary  evidence  adduced  and  the  Court  rightly  

awarded death sentence, which falls under the category  

of rarest of rare case.   

11. We may indicate that though the trial Court as well  

as  the  High  Court  have  found  that  both  Gandhi  Deb  

Barma  and  the  Appellant  were  guilty  of  the  various  

offences  levied  against  them,  we  are  in  this  case  

concerned with  the  Appeal  filed  by  Ashok Deb Barma,  

who has also been awarded death sentence by the trial  

Court,  which was confirmed by the High Court.  At the  

outset, we may point out that the High Court is right in  

holding  that  the  Appellant  is  not  guilty  under  Section  

27(3) of the Arms Act, 1959, in view of the law declared  

by this Court in State of Punjab v. Dalbir Singh (2012)  

3 SCC 346, wherein this Court held that Section 27(3) of  

the  Arms  Act  is  unconstitutional.    The  fact  that  such  

dastardly acts referred to earlier were committed in the  

Jarulbachai  village  in  the  night  of  11.2.1997,  is  not

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disputed.    The  question  that  we  are  called  upon  to  

decide  is  with  regard  to  the  complicity  of  the  

accused/Appellant,  who  was  found  guilty  by  the  trial  

Court  as well  as by the High Court.    The facts  would  

clearly  indicate  that,  in  this  case,  15  persons  were  

brutally and mercilessly killed and the houses of villagers  

with all household belongings and livestock were buried  

to ashes.  PW1, an injured person, had given a detailed  

picture of what had happened on the fateful day and he  

was not cross-examined by the defence.   The evidence  

of PW1 was also fully corroborated by PW2.  PW18, the  

officer-in-charge  of  Takarajala  Police  Station,  West  

Tripura, as already indicated, had visited the site since he  

got information at the Jarullabachai DAR Camp.  At about  

4.00 a.m. the next day, he had received the complaint  

from  PW2,  by  the  time,  he  had  already  started  

investigation after getting information from Jarullabachai  

DAR Camp and on his personal visit to the site.  In other  

words,  the  police  machinery  had  already  been  set  in  

motion on the basis of the information PW18 had already

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got and, it was during the course of investigation, he had  

received the complaint from PW2.  Though the complaint  

received from PW2 was treated as the First Information  

Report, the fact remains that even before that PW18 had  

started investigation.  Consequently, written information  

(Ex.1) received from PW2, at best, could be a statement  

of PW2 made in writing to the police during the course of  

investigation.  Of course, it can be treated as a statement  

of  PW2  recorded  under  Section  161  Cr.P.C  and  the  

contents  thereof  could  be  used  not  as  the  First  

Information Report, but for the purpose of contradicting  

PW2.   

12. PW20, the DSP (CID), as already indicated, was later  

entrusted  with  the  investigation  because  of  the  

seriousness  of  the  crime.   PW20  visited  the  place  of  

occurrence and noticed  that  the  entire  hutments  were  

gutted  by  fire,  35  families  were  affected  by  fire,  15  

persons  had  been  killed  and  four  seriously  injured.  

PW20,  during  investigation,  received  15  post-mortem

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reports from Dr. Pijush Kanti Das of IGM Hospital (PW9),  

who  conducted  the  post-mortem  on  the  dead  bodies.  

PW20 had also forwarded on 29.4.2011 one fire cartridge  

case to ballistic expert for his opinion and, on 19.5.1997,  

he received the expert opinion of the same date to the  

effect that it was around 7.62 mm ammunition.   PW20  

has also deposed that the fire arm was AK47 rifle.  PW20  

has also asserted that the Appellant was a person who  

was  known  to  the  locality  and  he  remained  as  an  

absconder from the day of the occurrence.   The evidence  

of PW20 as well as the evidence tendered by PW9 would  

clearly  indicate  that  the  cartridge seized  from the  site  

was found to be of 7.62 mm ammunition and the bullets  

were fired from an automatic fire arm like SLR and, in the  

instant case, the fire arm used was nothing but an AK 47  

rifle.   

13. Evidence of PWs6, 7 and 8, Medical Officers posted  

in G.B. Hospital at Agartala, would indicate that many of  

the persons,  who had sustained gunshot  injuries,  were

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treated in the hospital by them and they had submitted  

their reports which were also marked in evidence.  The  

fact that the fire arms were used in commission of the  

crime was fully  corroborated by the  evidence of  PW20  

read with evidence of PWs 6 to 9.   

14. We may now refer to the crucial evidence of some of  

the  witnesses  who  had  stated  the  involvement  of  the  

Appellant in the instant case.   PW10 has clearly stated in  

his deposition that the accused as well  as Gandhi Deb  

Barma (since absconding) were firing with fire arms, due  

to which, his brother died on the spot with bullet injuries.  

PW10 has further deposed that there were around 30-35  

members  in  the group,  who had,  either  set  fire to  the  

huts or opened fire from their fire arms.   PW10, in his  

cross-examination, deposed that he had stated before the  

police that he had seen Gandhi Deb Barma as well as the  

Appellant  opening  the  fires,  which  statement  was  not  

effectively cross-examined.  PW10’s version that he had  

seen  the  Appellant  firing  from  his  fire  arm  remained

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wholly  unshaken.   PW10  asserted  in  his  cross-

examination that he had stated before the police that his  

brother died due to bullets fired by the Appellant.  PW11  

has  also  deposed  that  the  extremists  had  killed  15  

persons, injured large number of persons and 23 houses  

were gutted in fire. PW11, of course, did not name the  

appellant  as  such,  but  has  fully  corroborated  the  

evidence tendered by PW10. PW11’s evidence reinforces  

the evidence of PW10 that the Appellant is one of those  

persons who had attacked the villagers and set fire to the  

houses and injured or killed large number of men, women  

and children.  PW14, a resident of the locality, has also  

corroborated the evidence of PW11.

15.   PW13 is one of the persons who got injured in the  

incident, lost both his son and wife in the firing occurred  

on the fateful day.  PW13, it is reported, was examined by  

the police on the night of the incident but, of course, he  

did  name  the  appellant  then,  consequently,  the  

appellant’s name did not figure in the FIR.   PW13, in his

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evidence, deposed that his wife, Saraswati, aged around  

30 years and his  daughter,  Tulshi  aged about 5 years,  

had  died  in  the  incident.   PW13  deposed  that  the  

miscreants had set fire to his house and when he wanted  

to come out of his house, 10-12 miscreants with fire arms  

fired at him and he sustained injuries. PW13 identified the  

accused in the Court.  

16.    We have gone through the oral evidence of PW10  

and PW13 and, in our view, the trial Court and the High  

Court  have  rightly  appreciated  their  evidence  and  the  

involvement  of  the  Appellant  in  the  above  incident,  

including  the  fact  that  he  had fired  at  various  people,  

which led to the killing of relatives of PW10 and PW13.  

We are of the view that since the accused persons were  

known to the witnesses and they were identified by face,  

the fact that no Test Identification Parade was conducted  

at the time of investigation, is of no consequence.  The  

primary  object  of  the  Test  Identification  Parade  is  to  

enable the witnesses to identify the persons involved in

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the  commission  of  offence(s)  if  the  offenders  are  not  

personally known to the witnesses.    The whole object  

behind  the  Test  Identification  Parade  is  really  to  find  

whether or not the suspect is the real offender.  In Kanta  

Prashad v. Delhi Administration AIR 1958 SC 350, this  

Court stated that the failure to hold the Test Identification  

Parade does not make the evidence of identification at  

the  trial  inadmissible.   However,  the  weight  to  be  

attached to such identification would be for the Court to  

decide and it  is  prudent  to  hold the Test  Identification  

Parade with respect to witnesses, who did not know the  

accused before the occurrence.  Reference may also be  

made to the judgment of this Court in Harbhajan Singh  

v.  State  of  Jammu  &  Kashmir  (1975)  4  SCC  480,  

Jadunath Singh and another v. State of UP (1970) 3  

SCC 518 and George & others v. State of Kerala and  

another (1998) 4 SCC 605.   

17. Above-mentioned  decisions  would  indicate  that  

while the evidence of identification of  an accused at a

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trial is admissible as substantive piece of evidence, would  

depend on the facts of a given case as to whether or not  

such a piece of evidence can be relied upon as the sole  

basis of conviction of an accused.  In  Malkhansingh v.  

State of M.P. (2003) 5 SCC 746, this Court clarified that  

the Test Identification Parade is not a substantive piece of  

evidence and to hold the Test Identification Parade is not  

even the rule of law, but a rule of prudence so that the  

identification of the accused inside the Court room at the  

trial, can be safely relied upon.  We are of the view that if  

the witnesses are trustworthy and reliable, the mere fact  

that no Test Identification Parade was conducted, itself,  

would  not  be  a  reason  for  discarding  the  evidence  of  

those witnesses.   This Court in Dana Yadav alias Dahu  

(supra) has  examined  the  points  on  the  law  at  great  

length and held that the evidence of identification of an  

accused in Court by a witness is  substantive evidence,  

whereas  identification  in  Test  Identification  Parade  is,  

though a primary evidence, but not substantive one and  

the  same  can  be  used  only  to  corroborate  the

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identification of the accused by witness in the Court.  So  

far  as the present case is  concerned,  PW10 and PW13  

have identified the accused in open Court which is the  

substantive piece of evidence and such identification by  

the eye-witnesses has not been shaken or contradicted.  

The  trial  Court  examined  in  detail  the  oral  evidence  

tendered by those witnesses, which was accepted by the  

High Court and we find no error in the appreciation of the  

evidence tendered by those witnesses.  

18.  The mere fact that the Appellant was not named in  

the statement made before the police under Section 161  

CrPC and, due to this omission, the evidence of PW10 and  

PW13  tendered  in  the  Court  is  unreliable,  cannot  be  

sustained.   Statements  made  to  the  police  during  

investigation were not substantive piece of evidence and  

the statements recorded under Section 161 CrPC can be  

used only  for  the purpose of  contradiction and not  for  

corroboration.   In our view, if the evidence tendered by  

the  witness  in  the  witness  box  is  creditworthy  and

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reliable,  that  evidence  cannot  be  rejected  merely  

because  a  particular  statement  made  by  the  witness  

before the Court does not find a place in the statement  

recorded under Section 161 CrPC.  Police officer recorded  

statements of witnesses in an incident where 15 persons  

lost  their  lives,  23  houses  were  set  ablaze  and  large  

number of persons were injured.     PW10 lost his  real  

brother and PW13 lost his daughter as well as his wife  

and in such a time of grief, they would not be in a normal  

state of mind to recollect who were all the miscreants and  

their names. The witnesses may be knowing the persons  

by face, not their names.  Therefore, the mere fact that  

they had not named the accused persons in Section 161  

statement, at that time, that would not be a reason for  

discarding the oral evidence if their evidence is found to  

be reliable and creditworthy.  

19.    Learned  counsel  appearing  for  the  accused  has  

raised the question that incriminating questions were not  

put to the accused while he was examined under Section

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313 CrPC. The object of Section 313 CrPC is to empower  

the Court to examine the accused after evidence of the  

prosecution has been taken so that the accused is given  

an opportunity to explain the circumstances which may  

tend to incriminate him.   The object of questioning an  

accused person by the Court is to give him an opportunity  

of explaining the circumstances that appear against him  

in the evidence.   In the instant case,  the accused was  

examined in  the  Court  on  23.4.2005 by  the  Additional  

Sessions Judge, West Tripura, Agartala, which,  inter alia,  

reads as follows :-

Question :  It  transpires  from the evidence of  PW No.10, 11 and 13 that they had  recognized  you  amongst  the  extremists.  Is it true?

Answer : False.

Question : It  transpires from the evidence of  the  above  witnesses  that  Dulal,  Ajit,  Saraswati  and  Hemender  sustained severe bullet injuries by  the  firing  of  you  and  your  associates?   What do you get to say regarding  this?

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Answer : Yes

Question : It  is  evident from the evidence of  these  witnesses  and  other  information  that  at  that  night  Sachindra Sarkar, Archana Garkar,  Dipak  Sarkar,  Gautam  Sarkar,  Shashi  Sarkar,  Prosenjit  Sarkar,  Saraswati  Biswas,  Tulsi  Biswas,  Narayan Das, Mithu Das, Bitu Das,  Khelan  Sarkar,  Sujit  Sarkar,  Bipul  Sarkar  and  Chotan  Sarkar  were  killed  by  the  bullets  of  fire  arms  and fire. What do you get to say regarding  this?

Answer : ………………. (Blank).

20.   The second question put to the accused was that,  

from the deposition of PW10, PW11, PW13, it had come  

out  in  evidence  that  it  was  due  to  the  firing  of  the  

accused  and  his  associates,  Dulal,  Ajit,  Saraswati  and  

Hemender had sustained severe bullet injuries, to which  

the answer given by the accused was “Yes”.   In  other  

words,  he  has  admitted  the  fact  that,  in  the  incident,  

Dulal, Ajit, Saraswati and Hemender had sustained severe

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bullet  injuries  by  the  firing  of  the  accused  and  his  

associates.   Further,  for  the  question,  that  from  the  

evidence  of  those  witnesses  and  other  information,  at  

that  night,  Sachindra  Sarkar,  Archana  Garkar,  Dipak  

Sarkar, Gautam Sarkar, etc. were killed by the bullets of  

fire arms and fire, the accused kept silent.  

21.   We  are  of  the  view  that,  under  Section  313  

statement, if the accused admits that, from the evidence  

of various witnesses, four persons sustained severe bullet  

injuries by the firing by the accused and his associates,  

that admission of guilt in Section 313 statement cannot  

be brushed aside. This Court in  State of Maharashtra  

v. Sukhdev Singh and another (1992) 3 SCC 700 held  

that since no oath is  administered to the accused,  the  

statement made by the accused under Section 313 CrPC  

will  not  be evidence  stricto  sensu  and the accused,  of  

course,  shall  not  render  himself  liable  to  punishment  

merely on the basis of answers given while he was being  

examined under Section 313 CrPC.   But, Sub-section (4)

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says that the answers given by the accused in response  

to his examination under Section 313 CrPC can be taken  

into consideration in such an inquiry or trial.   This Court  

in  Hate  Singh  Bhagat  Singh  (supra)  held  that  the  

answers  given  by  the  accused  under  Section  313  

examination can be used for proving his guilt as much as  

the evidence given by the prosecution witness. In Narain  

Singh v. State of Punjab (1963) 3 SCR 678, this Court  

held that when the accused confesses to the commission  

of the offence with which he is charged, the Court may  

rely upon the confession and proceed to convict him.     

22.   This Court in  Mohan Singh v. Prem Singh and  

another  (2002)  10  SCC  236  held  that  the  statement  

made in defence by accused under Section 313 CrPC can  

certainly be taken aid of to lend credence to the evidence  

led by the prosecution, but only a part of such statement  

under Section 313 CrPC cannot be made the sole basis of  

his conviction.   In this connection, reference may also be  

made to the judgment of this Court in Devender Kumar

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Singla v. Baldev Krishan Singla (2004) 9 SCC 15 and  

Bishnu Prasad Sinha and another v. State of Assam  

(2007)  11  SCC  467.   The  above-mentioned  decisions  

would indicate that the statement of the accused under  

Section  313  CrPC  for  the  admission  of  his  guilt  or  

confession  as  such  cannot  be  made the  sole  basis  for  

finding  the  accused guilty,  the  reason being  he  is  not  

making  the  statement  on  oath,  but  all  the  same  the  

confession or admission of guilt can be taken as a piece  

of  evidence  since  the  same  lends  credence  to  the  

evidence led by the prosecution.   

23. We may, however, indicate that the answers given  

by the accused while examining him under Section 313,  

fully  corroborate the evidence of  PW10 and PW13 and  

hence the offences levelled against the Appellant stand  

proved and the trial Court and the High Court have rightly  

found him guilty for the offences under Sections 326, 436  

and 302 read with Section 34 IPC.   

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24.   We shall now consider whether this is one of the  

rarest of rare case, as held by the trial Court and affirmed  

by the High Court, so as to award death sentence to the  

accused.  

25.   In  this  case,  altogether  11  persons  were  charge-

sheeted for the offences under Sections 326, 436 and 302  

read with Section 34 IPC and also Section 27(3) of the  

Arms Act,  1959 read with  Section 34 IPC,  but  charges  

were framed only against 5 persons under Sections 326,  

436 and 302 read with Section 34 IPC and also Section  

27(3) of the Arms Act,  1959 read with Section 34 IPC.  

For want of evidence, three accused persons Budhrai Deb  

Barma,  Mantu  Deb  Barma  and  Subhuram  Deb  Barma  

were acquitted on 23.4.2005 under Section 232 CrPC and  

only  two  accused  persons,  Appellant  and  Gandhi  Deb  

Barma were called upon in terms of Section 232 CrPC to  

enter on their defence.  Out of 11 accused, we are left  

with only two accused persons who were found guilty, out  

of whom Gandhi Deb Barma is now absconding, hence,

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we are concerned only with the Appellant.  We will first  

examine whether the appellant was solely responsible for  

all the elements of crime.   

ELEMENTS OF CRIME

26.   Appellant  alone  could  not  have  organized  and  

executed  the  entire  crime.   Eleven  persons  were  

originally charge-sheeted out of 30-35 group of persons  

who, according to the prosecution, armed with weapons  

like  AK47,  Dao,  Lathi,  etc.,  had attacked  the  villagers,  

fired at them and set ablaze their huts and belongings.  

The High Court while affirming the death sentence, stated  

as follows:

“The perpetrators of the crime, including the  present  appellant,  acted  in  most  cruel  and  inhuman  manner  and  murders  were  committed in extremely brutal, grotesque and  dastardly  manner,  which  is  revolting  and  ought to be taken to have vigorously shaken  the collective conscience of the society.  The  victims, all innocent, were helpless when they  were  put  to  death  or  grievously  injured  or  when their houses and belongings were burnt  to  ashes.   The  case  at  hand,  therefore,  squarely falls in the category of ‘rarest of rare

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cases’, where death penalty could be the only  adequate sentence.”

The High Court, therefore, while confirming the death  

sentence  recognized  the  accused  as  one  of  the  

“perpetrators of the crime”, not the sole, and then stated  

that they all  acted in most cruel  and inhuman manner  

and committed the offences.   Offences were committed  

by other so-called perpetrators of the crime as well, but  

they  could  not  be  apprehended  or  charge-sheeted.  

Appellant alone or the accused absconding, though found  

guilty, are not solely responsible for all the elements of  

the crime, but other perpetrators of the crime also, who  

could  not  be apprehended.   The Courts  below put  the  

entire  elements  of  crime  on  the  accused  and  treated  

those elements  as  aggravating  circumstances  so  as  to  

award death sentence, which cannot be sustained.

REASONABLE DOUBT AND RESIDUAL DOUBT

27. An accused has a profound right not to be convicted  

of an offence which is not established by the evidential  

standard of proof “beyond reasonable doubt”.  This Court

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in  Krishnan and another v.  State represented by  

Inspector  of  Police (2003)  7  SCC  56,  held  that  the  

doubts would be called reasonable if they are free from a  

zest  for  abstract  speculation.    Law cannot  afford  any  

favourite other than truth and to constitute reasonable  

doubt, it must be free from an overemotional response.  

Doubts must be actual and substantial doubts as to the  

guilt of the accused persons arising from the evidence, or  

from  the  lack  of  it,  as  opposed  to  mere  vague  

apprehensions.   A reasonable doubt is not an imaginary,  

trivial or a merely possible doubt, but a fair doubt based  

upon reason and common sense. It must grow out of the  

evidence in the case.   In Ramakant Rai v. Madan Rai  

and others (2002)12 SCC 395, the above principle has  

been reiterated.

28. In  Commonwealth v. John W. Webster 5 Cush.  

295,  320  (1850),  Massachusetts  Court, as  early  as  in  

1850, has explained the expression “reasonable doubt”  

as follows:

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“Reasonable  doubt  ...  is  not  a  mere  possible  doubt;  because  everything  relating  to  human  affairs, and depending on moral evidence, is open  to some possible or imaginary doubt.   It is that  state  of  the  case  which,  after  the  entire  comparison and consideration of all the evidence,  leaves the minds of the jurors in that condition  that  they  cannot  say  they  feel  an  abiding  conviction.”

In our criminal justice system, for recording guilt of  

the  accused,  it  is  not  necessary  that  the  prosecution  

should  prove  the  case  with  absolute  or  mathematical  

certainty,  but  only  beyond reasonable doubt.   Criminal  

Courts,  while  examining  whether  any  doubt  is  beyond  

reasonable  doubt,  may  carry  in  their  mind,  some  

“residual doubt”, even though the Courts are convinced  

of the accused persons’ guilt beyond reasonable doubt.  

For instance, in the instant case, it was pointed out that,  

according to the prosecution, 30-35 persons armed with  

weapons such as fire arms, dao, lathi etc., set fire to the  

houses of the villagers and opened fire which resulted in  

the  death  of  15  persons,  but  only  11  persons  were  

charge-sheeted and, out of which, charges were framed  

only  against  5  accused persons.   Even  out  of  those 5

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persons,  3  were  acquitted,  leaving  the  appellant  and  

another,  who  is  absconding.   Court,  in  such  

circumstances, could have entertained a “residual doubt”  

as  to  whether  the  appellant  alone  had  committed  the  

entire  crime,  which  is  a  mitigating  circumstance to  be  

taken note of  by the court,  at  least  when the court  is  

considering the question whether the case falls under the  

rarest of rare category.   

29. ‘Residual  doubt’  is  a  mitigating  circumstance,  

sometimes, used and urged before the Jury in the United  

States  and,  generally,  not  found favour  by the various  

Courts in the United States. In Donald Gene Franklin v.  

James A. Lynaugh, Director, Texas Department of  

Corrections 487 US 164 (1988) : 101 L Ed 2d 155, while  

dealing with the death sentence, held as follows:

“Petitioner  also  contends  that  the  sentencing  procedures  followed  in  his  case  prevented  the  jury from considering, in mitigation of sentence,  any "residual doubts" it might have had about his  guilt. Petitioner uses the phrase "residual doubts"  to refer to doubts that may have lingered in the  minds of jurors who were convinced of his guilt

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beyond  a  reasonable  doubt,  but  who  were  not  absolutely certain of his guilt. Brief for Petitioner  14.  The  plurality  and  dissent  reject  petitioner's  "residual  doubt"  claim  because  they  conclude  that the special verdict questions did not prevent  the  jury  from  giving  mitigating  effect  to  its  "residual  doubt[s]"  about  petitioner's  guilt. See  ante at 487 U. S. 175; post at 487 U. S. 189. This  conclusion is open to question, however. Although  the  jury  was  permitted  to  consider  evidence  presented  at  the  guilt  phase  in  the  course  of  answering the special verdict questions, the jury  was specifically instructed to decide whether the  evidence  supported  affirmative  answers  to  the  special  questions  "beyond  a  reasonable doubt."  App.  15  (emphasis  added).  Because  of  this  instruction, the jury might not have thought that,  in  sentencing petitioner,  it  was free  to  demand  proof of his guilt beyond all doubt.

30.    In  California v.  Brown 479 U.S.  541 and other  

cases, the US Courts took the view, “"Residual doubt" is  

not a fact about the defendant or the circumstances of  

the crime, but a lingering uncertainty about facts, a state  

of  mind  that  exists  somewhere  between  "beyond  a  

reasonable doubt"  and "absolute certainty."  Petitioner's  

"residual  doubt"  claim  is  that  the  States  must  permit  

capital sentencing bodies to demand proof of guilt to "an  

absolute certainty" before imposing the death sentence.

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Nothing  in  our  cases  mandates  the  imposition  of  this  

heightened burden of proof at capital sentencing.”

31.   We also, in this country, as already indicated, expect  

the  prosecution  to  prove  its  case  beyond  reasonable  

doubt, but not with “absolute certainty”.  But, in between  

“reasonable doubt” and “absolute certainty”, a decision  

maker’s mind may wander possibly, in a given case, he  

may  go  for  “absolute  certainty”  so  as  to  award  death  

sentence, short of that he may go for “beyond reasonable  

doubt”.   Suffice it to say, so far as the present case is  

concerned,  we  entertained  a  lingering  doubt  as  to  

whether  the  appellant  alone  could  have  executed  the  

crime single  handedly,  especially  when the prosecution  

itself says that it was the handiwork of a large group of  

people.  If that be so, in our view, the crime perpetrated  

by a group of people in an extremely brutal,  grotesque  

and dastardly manner, could not have been thrown upon  

the appellant alone without charge-sheeting other group  

of persons numbering around 35.   All element test as well

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as the residual doubt test, in a given case, may favour the  

accused, as a mitigating factor.

 COUNSEL’S INEFFECTIVENESS:

32. Can  the  counsel’s  ineffectiveness  in  conducting  a  

criminal  trial  for  the  defence,  if  established,  be  a  

mitigating circumstance favouring the accused, especially  

to escape from the award of death sentence.  Counsel for  

the  appellant,  without  causing  any  aspersion  to  the  

defence counsel  appeared for  the accused,  but  to  only  

save the accused from the gallows, pointed out that the  

records would indicate that the accused was not meted  

out  with  effective  legal  assistance.     Learned  counsel  

submitted  that  the  defence  counsel  failed  to  cross  

examine PW1 and few other  witnesses.  Further,  it  was  

pointed out that the counsel also should not have cross  

examined  PW17,  since  he  was  not  put  to  chief-

examination.  Learned counsel submitted that appellant,  

a tribal, coming from very poor circumstances, could not  

have engaged a competent defence lawyer to conduct a

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case on his behalf.   Placing reliance on the judgment of  

the  US  Supreme  Court  in  Charles  E.  Strickland,  

Superintendent, Florida State Prison v. David Leroy  

Washington 466 US 668 (1984), learned counsel pointed  

out that, under Article 21 of our Constitution, it is a legal  

right of the accused to have a fair trial, which the accused  

was deprived of.   

33. Right to get proper and competent assistance is the  

facet of fair trial.  This Court in Madhav Hayawadanrao  

S. Hoskot v. State of Maharashtra (1978) 3 SCC 544,  

State  of  Haryana  v.  Darshana  Devi  and  Others  

(1979)  2  SCC 236,  Hussainara  Khatoon and others  

(IV) v. Home Secretary, State of Bihar, Patna (1980)  

1  SCC  98  and  Ranjan  Dwivedi  v.  Union  of  India  

(1983)  3  SCC  307,  pointed  out  that  if  the  accused  is  

unable to engage a counsel, owing to poverty or similar  

circumstances,  trial  would  be  vitiated  unless  the  State  

offers free legal aid for his defence to engage a counsel,  

to whose engagement, the accused does not object.  It is

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a  constitutional  guarantee  conferred  on  the  accused  

persons under Article 22(1) of the Constitution.   Section  

304 CrPC provides for legal assistance to the accused on  

State expenditure.   Apart from the statutory provisions  

contained  in  Article  22(1)  and  Section  304  CrPC,  in  

Hussainara Khatoon  case (supra), this Court has held  

that this is a constitutional right of every accused person  

who  is  unable  to  engage  a  lawyer  and  secure  legal  

services  on  account  of  reasons,  such  as  poverty,  

indigence or incommunicado situation.

34. The question raised, in this case, is with regard to  

ineffective  legal  assistance  which,  according  to  the  

counsel, caused prejudice to the accused and, hence, the  

same may be treated as a mitigating circumstance while  

awarding  sentence.  Few  circumstances  pointed  out  to  

show ineffective legal assistance are as follows:

(1) Failure  to  cross-examine  PW1,  the  injured  first  

informant  which,  according  to  the  counsel,  is  a  

strong circumstance of “ineffective legal assistance”.

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(2) The omission to point out the decision of this Court  

in Dalbir Singh (supra), wherein this Court held that  

Section 27(3) of the Arms Act was unconstitutional,  

was a serious omission of “ineffective legal advice”,  

at the trial stage, even though the High Court has  

found the appellant not guilty under Section 27 of  

the Arms Act, 1959.

(3) Ventured to cross examine PW17, who was not put  

to chief-examination.

 35. Right to get proper legal assistance plays a crucial  

role in adversarial system, since access to counsel’s skill  

and  knowledge  is  necessary  to  accord  the  accused  an  

ample opportunity to meet the case of the prosecution. In  

Charles E. Strickland case (supra), the US Court held  

that a convicted defendant alleging ineffective assistance  

of  counsel  must  show  not  only  that  counsel  was  not  

functioning  as  the  counsel  guaranteed  by  the  Sixth  

Amendment  so  as  to  provide  reasonable  effective  

assistance, but also that counsel’s errors were so serious

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as to deprive the defendant of a fair trial.  Court held that  

the defiant convict  should also show that because of a  

reasonable  probability,  but  for  counsel’s  unprofessional  

errors, the results would have been different.  The Court  

also held as follows:

“Judicial scrutiny of counsel’s performance must  be highly deferential, and a fair assessment of  attorney performance requires that every effort  be made to eliminate the distorting effects  of  hindsight,  to  reconstruct  the circumstances of  counsel’s challenged conduct,  and to evaluate  the conduct from counsel’s  perspective at the  time.   A  court  must  indulge  a  strong  presumption that counsel’s conduct falls within  the  wide  range  of  reasonable  professional  assistance.  These standards require no special  amplification in order to define counsel’s duty to  investigate, the duty at issue in this case.”

36. The Court, in determining whether prejudice resulted  

from a criminal  defence counsel’s  ineffectiveness,  must  

consider the totality of the evidence.   When an accused  

challenges  a  death  sentence  on  the  ground  of  

prejudicially ineffective representation of the counsel, the  

question is whether there is a reasonable probability that,  

absent the errors, the Court independently reweighs the  

evidence,  would  have  concluded  that  the  balance  of

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aggravating and mitigating circumstances did not warrant  

the death sentence.   

37. When we apply the above test to the facts of this  

case, we are not prepared to say that the accused was  

not  given  proper  legal  assistance  by  the  counsel  

appeared before the trial Court as well as before the High  

Court.   As already discussed in detail, there is clinching  

evidence in this case of the involvement of the appellant.  

The  evidence  tendered  by  the  eye-witnesses  is  

trustworthy  and  reliable.   True,  PW17  should  not  have  

been subjected to cross-examination without being put to  

chief-examination.  Section  138  of  the  Evidence  Act  

specifically states that witness shall be first examined-in-

chief,  then  (if  the  adverse  party  so  desires)  cross-

examined, then (if  the party calling him so desires) re-

examined.  Consequently, there is no scope under Section  

138 of the Evidence Act to start with cross-examination of  

a witness, who has not been examined-in-chief, an error  

committed by the trial Court.   In  Sukhwant Singh v.

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State of Punjab (1995) 3 SCC 367, this Court held that  

after amendment of CrPC, tendering of witness for cross  

examination is not permissible.  Under the old Code, such  

tendering  of  witnesses  was  permissible,  while  the  

committing Magistrate used to record the statement  of  

witnesses, which could be treated at the discretion of the  

trial  Judge  as  substantial  evidence  of  the  trial.  In  that  

case, this Court further held as follows:

“Section  138  Evidence  Act,  envisages  that  a  witness  would  first  be  examined-in-chief  and  then  subjected  to  cross  examination  and  for  seeking any clarification, the witness may be re- examined  by  the  prosecution.   There  is  no  meaning  in  tendering  a  witness  for  cross  examination only.   Tendering of  a  witness for  cross examination, as a matter of fact, amounts  to giving up of the witness by the prosecution  as it does not choose to examine him in chief.”

Later,  in  Tej Prakash v.  State of Haryana (1996)  7  

SCC  322,  this  Court,  following  its  earlier  judgment  in  

Sukhwant Singh (supra), held as follows:

“18. As far as Dr O.P. Poddar is concerned, he  was  only  tendered  for  cross-examination  without his being examined-in-chief. Though, Dr  O.P.  Poddar  was  not  examined-in-chief,  this

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procedure  of  tendering  a  witness  for  cross- examination is not warranted by law. This Court  in  Sukhwant Singh v.  State of Punjab (1995) 3  SCC 367 held that permitting the prosecution to  tender  a  witness  for  cross-examination  only  would be wrong and “the effect of their being  tendered only for cross-examination amounts to  the failure of the prosecution to examine them  at the trial”. In the present case, however, non- examination  of  Dr  O.P.  Poddar  is  not  very  material  because  the  post-mortem  report  coupled with the testimonies of Dr K.C. Jain PW  1 and Dr J.L.  Bhutani  PW 9 were sufficient  to  enable  the  courts  to  come  to  the  conclusion  about the cause of death.”

38. Participation and involvement of the appellant, in the  

instant  crime,  have  been  proved  beyond  reasonable  

doubt.   At the time of commission of the offence, he was  

30 years of age, now 45.  Facts would clearly indicate that  

he is one of the members of group of extremist persons,  

waging war against the linguistic group of people in the  

State of  Tripura.  Persons like the appellant  armed with  

sophisticated weapons like AK 47, attacked unarmed and  

defenceless persons, which included women and children.  

Prosecution has stated that the minority community in the  

State  of  Tripura  is  often  faced  with  some  extremists’

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attacks and no leniency be shown to such persons, at the  

peril of innocent people residing in the State of Tripura.     

39. We have laid down three tests – crime test, criminal  

test and RR test, not the “balancing test”, while deciding  

the  proportionality  of  the  sentence.   To  award  death  

sentence, crime test has to be fully satisfied and there  

should  be  no  mitigating  circumstance  favouring  the  

accused, over and above the RR test.    The hallmark of a  

sentencing policy, it is often said, that sufficiently guides  

and attracts the Court is the presence of procedures that  

require  the  Court  to  consider  the  circumstances  of  the  

crime and the criminal before it recommends sentence.   

40. Arbitrariness, discrimination and inconsistency often  

loom  large,  when  we  analyze  some  of  judicial  

pronouncements  awarding  sentence.   Of  course,  it  is  

extremely  difficult  to  lay  down  clear  cut  guidelines  or  

standards to determine the appropriate sentence to be  

awarded.  Even the ardent critics only criticize, but have  

no concrete solution as such for laying down a clear cut

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policy  in  sentencing.    Only  safeguard,  statutorily  and  

judicially provided is to give special reasons, not merely  

“reasons”  before awarding the capital  punishment    In  

Santosh  Kumar  Satisbhushan  Bariyar  v.  State  of   

Maharashtra  (2009) 6 SCC 498, this Court highlighted  

the fact that the arbitrariness in sentencing under Section  

302 may violate the idea of equal protection clause under  

Article  14 and the  right  to  life  under  Article  21 of  the  

Constitution.   Many times, it may be remembered that  

the  ultimate  sentence  turns  on  the  facts  and  

circumstances  of  each  case.  The requirement  to  follow  

the three tests, including the necessity to state “special  

reasons”  to  some  extent  allay  the  fears  expressed  in  

Santosh Kumar Satisbhushan Bariyar case (supra).   

41. We have already explained few circumstances which  

favoured the accused in the instant case, to hold it as not  

a rarest of rare case, which are that the appellant alone  

could not have executed such a crime, which resulted in  

the death of 15 persons and leaving so many injured and

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setting ablaze 23 houses, that is the entire elements of  

the  crime  could  not  have  been  committed  by  the  

appellant alone.  Further, the appellant is a tribal, stated  

to be a member of the extremist group raging war against  

the minority  settlers,  apprehending perhaps they might  

snatch  away  their  livelihood  and  encroach  upon  their  

properties,  possibly  such  frustration  and  neglect  might  

have  led  them  to  take  arms,  thinking  they  are  being  

marginalized and ignored by the society.     Viewed in that  

perspective, we are of the view that this is not a rarest of  

rare  case  for  awarding  death  sentence.   All  the  same,  

considering the gravity of the crime and the factors like  

extreme  social  indignation,  crimes  against  innocent  

villagers,  who  are  a  linguistic  minority,  which  included  

women and children, we feel it would be in the interest of  

justice  to  apply  the  principles  laid  down  in  Swamy  

Shradananada (2) v. State of Karnataka  (2008) 13  

SCC 767.

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42. Consequently, while altering the death sentence to  

that of imprisonment for life,  we are inclined to fix the  

term of imprisonment as 20 years without remission, over  

and  above  the  period  of  sentence  already  undergone,  

which,  in  our  view,  would  meet  the  ends  of  justice.  

Ordered accordingly.

43. The Appeals are, accordingly, disposed of.

…………………………J. (K. S. Radhakrishnan)

.….……………………J. (Vikramajit Sen)    

New Delhi, March 4, 2014.