REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1366 OF 2005

Rabindra Kumar Pal @ Dara Singh      .... Appellant(s)

Versus

Republic of India              .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 1259 OF 2007

AND

CRIMINAL APPEAL NOS. 1357-1365 OF 2005

J U D G M E N T  

P. Sathasivam, J.

1)  These  appeals  relate  to  a  sensational  case  of  triple  

murder  of  an  Australian  Christian  Missionary  -  Graham  

Stuart Staines and his two minor sons, namely, Philip Staines,  

aged about 10 years and Timothy Staines aged about 6 years.  

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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  

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 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 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:

(a)   Graham  Stuart  Staines,  a  Christian  Missionary  from  

Australia,  was  working  among  the  tribal  people  especially  

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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 remote 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,  

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.   

(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 mid-

night, a mob of 60-70 people came to the spot and set fire to  

the vehicle in which the deceased persons were sleeping.  The  

mob  prevented  the  deceased  to  get  themselves  out  of  the  

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vehicle as a result of which all the three persons got burnt in  

the vehicle.  The local police was informed about the incident  

on the 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 were put to trial.   Apart  from these  

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  

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-

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appellant  in  Criminal  Appeal  No.  1366  of  2005  and  others  

were awarded sentence of life imprisonment.  

(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  

credence should be given to their statements and confessional  

statements were procured by the investigating agency under  

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 imprisonment, 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 accused,  

CBI filed Criminal  Appeal  Nos.  1357-65 of  2005 before this  

Court.  

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4)   Heard  Mr.  KTS  Tulsi  and  Mr.  Ratnakar  Dash,  learned  

senior counsel  for  the accused/appellants and Mr.  Vivek K.  

Tankha, learned Addl. Solicitor General for the CBI.  

5)   Mr.  K.T.S.  Tulsi,  learned  senior  counsel  appearing  for  

Rabindra Kumar Pal @ Dara Singh (A1) and other accused in  

the appeals against acquittal 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 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  (A13)  made his  

statement  while  on  bail.   Besides  all  confessions  being  

exculpatory and made after conspiracy ceased to be operative  

and inadmissible.  

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(ii)  Inasmuch as recording of confessions of various accused  

persons was done after  the investigation was taken over by  

Jogendra  Nayak  (PW 55),  I.O.  of  the  CBI  which  shows  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.

(iv) There are several circumstances which are 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.

6)  Mr. Dash, learned senior counsel appearing for the accused  

Mahendra Hembram (A3) reiterating the above submissions of  

Mr. Tulsi  also pinpointed deficiency in the prosecution case  

insofar as (A3) is concerned.

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7)  Mr.  Vivek Tankha, learned Addl.  Solicitor General,  after  

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  

sentence  into  life  imprisonment  in  favour  of  (A1)  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.   

(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  Parade  (in  

short ‘TIP’).

(iii) The High Court erred in acquitting 11 accused persons  

on the sole ground that TIP was not conducted and, therefore,  

identification by the eye-witnesses was doubtful.

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(iv) The  evidence  of  identification  in  Court  is  substantive  

evidence and that of the identification in TIP is of corroborative  

value.

(v) The  High  Court  committed  a  serious  error  in  law  in  

disregarding the confessional statements made under Section  

164 of  the  Cr.P.C.  as  well  as  the  extra-judicial  confessions  

made by Dara Singh (A1) and Mahendra Hembram (A3).   

(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)  

have clearly admitted their plan for committing the crime.    

(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.     

(viii)  Inasmuch as it was Dara Singh (A1) who originated and  

organized the  heinous act  and also  prevented the  deceased  

persons  from  coming  out  of  the  burning  vehicle,  the  High  

Court ought to have confirmed his death sentence.

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(ix)   The reasons given by  the  High Court  in  acquitting  11  

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 and  

defence.   

9)   With  the  various  materials  in  the  form  of  oral  and  

documentary evidence, reasoning of the trial  Judge and the  

ultimate  decision  of  the  High  Court,  we  have  to  find  out  

whether  the  conviction  and  sentence  of  life  imprisonment  

imposed on 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  contradictory  to  each  

other  on  all  material  points.   It  is  his  further  claim  that  

exaggerated  and  improved  version  of  the  incident  makes  it  

difficult to place implicit reliance on the statements of any of  

those witnesses.   On the other hand,  it  is  the claim of  the  

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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  

(A1) 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  

05.06.1999.   In  her  evidence,  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  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 holding torch lights  

and lathis going towards the church.  She stated that in the  

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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  her  to  proceed  

further.  Therefore, she went to the thrashing floor from where  

she found that people had surrounded the vehicle of Graham  

Staines.  Thereafter, she found the vehicle on fire.  The wheels  

of  vehicle  in which Graham Staines and his  two sons were  

sleeping, bursted aloud, and they were burnt to death.  The  

people  who  surrounded  the  vehicles  raised  slogans  “Jai  

Bajarang Bali” and “Dara Singh Zindabad”. It is clear that she  

could identify only Ojen @ Suresh Hansda by face for the first  

time before the trial Court.  No TIP was held to enable her to  

identify him.  It shows that her identification of Ojen @ Suresh  

Hansda  by  face  during  trial  was  not  corroborated  by  any  

previously  held  TIP.   It  is  also  clear  that  though  she  was  

examined  by  the  State  Police/CID,  she  never  disclosed  the  

name of Ojen @ Suresh Hansda.  Though she claims to have  

identified  Ojen  @  Suresh  Hansda  by  the  light  of  the  lamp  

(locally called Dibri) which she had kept in the Verandah, it  

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must be noted that it  was midnight during the peak winter  

season and there is no explanation for keeping the lamp in the  

Verandah  during  midnight.  In  her  cross-examination,  she  

admitted that she could not identify any of the persons who  

had  surrounded  the  vehicle  of  Graham  Staines  and  set  it  

ablaze.  

ii)   The  next  eye-witness  examined  on  the  side  of  the  

prosecution is PW3, Paul Murmu.  He admitted that he was  

converted  to  Christianity  in  the  year  1997.   He  identified  

accused Dara Singh in dock. He was examined by the local  

police on 23.01.1999, by CID on 10.02.1999 and by the CBI  

on 20.04.1999.   He used to accompany Graham Staines at  

different places.  He last accompanied Graham Staines on his  

visit to Manoharpur on 20.02.1999.  He stated that Graham  

Staines with his two sons was in a separate vehicle and the  

witness along with other three persons was in another vehicle.  

In the night of 22.01.1999, Graham Staines along with his two  

sons slept  in his  vehicle,  which was parked in front  of  the  

church.  The witness slept in a hut, which was raised behind  

the church.  In the midnight, Nimai Hansda (driver of vehicle)  

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woke him up.  He heard the sound of beating of the vehicles  

parked in front of the church.  He along with Nimai Hansda  

went near the chruch and found 60-70 persons putting straw  

beneath the vehicle of Graham Staines and setting it on fire.  

Three persons broke the glass panes of the vehicle in which  

Graham  Staines  and  his  two  sons  were  sleeping  and  gave  

strokes to them with sticks.  They were focusing the torch into  

the vehicles.  One of them was having a beard.  The witness  

pointed out to the accused Dara Singh (A1) on the dock saying  

that the bearded man resembled like him.  The witness was  

unable to identify the other two persons who were in the dock.  

However, he also asserted the hearing of slogans saying “Dara  

Singh Zindabad” which corroborates his identification.

iii)  The next eye-witness examined by the prosecution is PW4,  

Rolia Soren.  It was he who lodged FIR.  He was examined by  

the local police on 23.01.1999, by the CID on 03.02.1999 and  

by the CBI on 09.04.1999.  He is a resident of Manohapur  

Village (the place of occurrence) and Graham Staines was well  

known to him.  He stated that Graham Staines along with his  

two  sons  and  other  persons  visited  Manoharpur  on  

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20.01.1999.  In the night of 22.01.1999, Graham Staines and  

his two sons slept in the vehicle bearing No. 1208 which was  

parked in front of the church.  Another vehicle No. 952 was  

also parked in front of the church.  The house of witness was  

situated in the south of church, four houses apart and the  

vehicles parked in front of church were visible from the road in  

front of his house.  In the night of 22.01.1999, his wife woke  

him up and said that she found large number of people with  

lathis and torches going towards the church.  After walking  

about 100 ft. towards the vehicles, he found a large number of  

people delivering lathis blow on the vehicle in which Graham  

Staines and his two sons were sleeping and the other vehicle  

bearing No. 952 was already set on fire.  Three-four persons  

belonging  to  the  group  caught  hold  of  him  by  collar  and  

restrained  him  from  proceeding  towards  the  vehicle.   The  

witness could not recognize them as their heads were covered  

with caps and faces by mufflers.  The witness went towards  

the village and called Christian people.  When along with these  

persons, the witness reached near the church, he found both  

the vehicles burnt.  Graham Staines and his two sons were  

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also  burnt  to  death.   The  next  day,  at  about  9  P.M.,  the  

Officer-In-Charge (OIC) Anandpur PS showed his written paper  

and said that was the FIR and he had to lend his signature  

and accordingly, he lend his signature thereon.  The witness  

had  identified  his  signatures  during  his  deposition  in  the  

court. Though he mentioned large number of miscreants, but  

they were not chargesheeted.  In the FIR itself it was stated by  

this witness that at the time of occurrence miscreants raised  

slogans  saying  “Bajrang  Bali  Zindabad”  and  “Dara  Singh  

Zindabad”.   

iv)  Singo Marandi (PW5) was examined as next eye-witness.  

Though  he  named  accused  Ojen  Hansda,  in  his  deposition  

stated that he belonged to his village and in the dock he could  

not  identify  him  with  certainty.   His  statement  was  not  

recorded  by  the  local  police  but  recorded  by  the  CID  on  

03.02.1999 and by the CBI on 07.06.1999.  This witness is a  

resident of Manoharpur (the place of occurrence).  He stated  

that on Saraswati Puja day of 1999, after witnessing the Nagin  

dance along with his mother, he slept in Verandah of Galu and  

her mother was sitting by his side.  At about midnight, his  

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mother woke him up.  He saw something was burning near the  

church and found a vehicle moving towards the road.  Ojen  

and Chenchu of his village carrying torch and lathis came to  

them and warned them not to go near the fire as some people  

were killing the Christians there.  Thereafter, he heard sounds  

of blowing of whistles thrice and raising slogans saying “Dara  

Singh Zindabad”.   It is seen from his evidence that at that  

time  he  was  prosecuting  his  studies  at  Cuttack  and  his  

mother was working as a labourer in Bhadrak.  It is also not  

clear as to what was the need for him to sleep in Verandah of  

another  person  with  his  mother  sitting  beside  him  till  

midnight during peak of the winter.  

v)  The next eye-witness examined by the prosecution is Nimai  

Hansda  (PW10).   He  was  examined  by  the  local  police  on  

23.01.1999,  by  the  CID on  11.02.1999 and by  the  CBI  on  

20.04.1999.  He did not identify any of the accused.He was the  

driver of  Graham Staines.   Vehicle  No.  1208 was driven by  

him.  He along with Graham Staines and others came to the  

place of occurrence on 20.01.1999.  Graham Staines and his  

two sons used to sleep in the said vehicle.  He stated that in  

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the midnight of 22.01.1999, on hearing bursting sounds, he  

woke up.  He heard the sound of beating the vehicles parked  

in front of church in which Graham Staines and his two sons  

were sleeping. He ran towards the vehicles and found some  

people beating the vehicles with lathis.  They first broke the  

glass pane of vehicle No. 952.  Thereafter, a boy set the vehicle  

on fire.  Before setting the vehicle on fire, he put bundle of  

straw at front right wheel of vehicle.  When the witness raised  

a noise of protest, those people assaulted him.  He went to call  

the people but nobody came.  When he came back to the place  

of occurrence, he found both the vehicles on fire.  The witness  

stated that there were about 30-40 people armed with lathis  

and holding torches.   They raised slogan ‘Jai Bajarang Bali’  

and ‘Dara Singh Zindabad.   The fire  was extinguished at  3  

a.m.  By that time, both the vehicles were completely burnt.  

Graham Staines  and his  two sons  were  completely  charred  

and burnt to death.  The witness could not identify any of the  

miscreants who set the vehicles on fire.    

vi)  PW11, Bhakta Marandi was next examined on the side of  

the prosecution as eye-witness.   He identified accused Dara  

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Singh  and  Rajat  Kumar  Das  in  dock.   His  statement  was  

neither recorded by local police nor by the CID but recorded by  

the CBI on 05.06.1999.   He belongs to Village Manoharpur  

(the place of  occurrence).  His house is  situated  two houses  

apart from the church. He stated that the deceased  Graham  

Staines was known to  him.  He  last  visited  Manoharpur  on  

20.01.1999 along with his two sons and others in two vehicles.  

Graham Staines and his two sons used to sleep in the night  

inside the vehicle parked in front of the church. As usual in  

the night  of  22.01.1999,  Graham Staines and his  two sons  

had slept in a vehicle. In the midnight, the witness was woken  

up by his wife on hearing bursting sounds. He came out of his  

house and found 4/5 persons standing in front of his house  

holding torches and lathis.  They were threatening that they  

will kill the persons who will dare to come in their way. One of  

them threw a baton like stick at him. He retreated to his house  

and went to the house of another person situated one house  

apart from the church.  A slim and tall man was holding an  

axe. They set on fire one of the vehicles. Some of them brought  

straw and put the same on the vehicle. They set fire both the  

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vehicles  and both the  vehicles  were  burnt.  They  raised  the  

slogans “Jai Bajarang Bali” and “Dara Singh Zindabad”. The  

witness pointed accused  Dara Singh (A1) and accused Rajat  

Kumar Das in the dock as two of those persons beating the  

vehicles and setting fire on the vehicles. The witness identified  

accused Dara Singh (A1) as slim and tall fellow holding the axe  

and guiding the miscreants. The witness further stated that  

the CBI while interrogating him showed photographs of some  

persons and he had identified two of the photographs as that  

of miscreants. He had signed on those photographs.  About  

the admissibility of the identification of the accused persons  

with  the  photographs can be  considered at  a  later  point  of  

time.  He did not report the incident to the Collector or any  

other police officer camping at the site.

vii)   The  next  eye-witness  examined  was  Mathai  Marandi  

(PW15).  He identified accused Uma Kant Bhoi (A 13) in the  

TIP.  He also identified accused Dara Singh (A1),  Dipu Das  

(A2),  Ojen  @  Suresh  Hansda  and  Mahadev.   Out  of  these  

accused,  Ojen  Hansda  was  previously  known  to  him,  

belonging to the same street of his village.  In his evidence, it  

20

is  stated  that  he  is  native  of  Manoharpur  village  and  the  

church (Place of occurrence) is located adjacent to his house.  

Deceased Graham Staines was well known to him as he used  

to  visit  his  village  for  the  last  15-16  years.  He  stated  that  

Graham Staines last  visited their  village on 20.01.1999.  He  

along with his two sons and other persons came there in two  

vehicles. He further stated that in the night of 22.01.1999, on  

hearing bursting sound, his wife woke him up. After coming  

out of the house, he found 40-50 persons gathered near the  

vehicles parked in front of the church and beating the vehicles  

by lathis. Those miscreants were holding lathis, axe, torches,  

bows and arrows. He heard cries raised by the minor sons of  

Graham Staines. He went near the vehicle, but 3 to 4 persons  

threatened him with lathis and, therefore, he retreated to his  

house.  Thereafter,  he  went  to  the  huts  raised  behind  the  

church and called the persons staying there and went to the  

place  of  occurrence and found the vehicles  set  on fire.  The  

miscreants put the straw inside the vehicle and set it on fire.  

They  first  set  the  empty  vehicle  on  fire  and  thereafter  the  

vehicle in which Graham Staines and his sons were sleeping.  

21

Both  the  vehicles  caught  fire  and  were  burnt.  The  witness  

identified  accused  Dara  Singh (A1),  Dipu Das  (A2),  Ojen  @  

Suresh Hansda and Mahadev as the miscreants present at the  

scene  of  occurrence  and  taking  part  in  the  offence.  The  

witness  further  stated  that  Ojen  Hansda  and  Mahendra  

Hembram belonged to his village. He had identified accused  

Uma Kanta Bhoi in the TIP conducted at Anandpur Jail as one  

of  the persons setting fire  on the vehicle.  He further  stated  

that after the vehicles were burnt, the miscreants blew whistle  

thrice and raised slogan “Jai Bajarang Bali” and “Dara Singh  

Zindabad”.  However, it is relevant to note that his omission to  

mention all important aspects in his evidence including names  

of  the  appellants  and  his  previous  statements  recorded  by  

three Investigating Officers creates a doubt about his veracity.

viii)   Joseph Marandi (PW23) was examined as another eye-

witness to the occurrence.  He belonged to village Manoharpur  

(Place of occurrence) and his house is located near the church.  

He identified accused Renta Hembram, Mahendra Hembram,  

Dara Singh and Rajat Kumar Dass @ Dipu.  Out of these, two  

accused  -  Renta  Hembram  and  Mahendra  Hembram,  were  

22

previously known to him as they belonged to his village.  He  

was examined by the local police on 02.02.1999, by the CID  

on 06.02.1999 and by the CBI on 03.06.1999. He stated that  

Graham Staines along with his two sons and other persons  

came  to  Manoharpur  on  20.01.1999  on  two  vehicles.  On  

22.01.1999 deceased Graham Staines and his two sons slept  

in a vehicle parked in front of the church and other persons  

slept in the huts raised behind the church. In the mid-night,  

he heard the sound of beating of vehicles and woke up. When  

he came out of the house, 3 to 4 persons holding lathis and  

torches  restrained  and  threatened  him  to  assault  if  he  

proceeds further. Thereafter, he stood in a lane between his  

house and the church. He saw that about 20-22 persons had  

surrounded  the  vehicle  in  which  deceased  Graham Staines  

and his two sons were sleeping. Some people were setting the  

vehicle on fire by putting straw beneath it and igniting it by  

match  sticks.  After  the  vehicle  caught  fire  and  was  burnt,  

somebody blew whistle  thrice  and they shouted slogan “Jai  

Bajarang Bali” and “Dara Singh Zindabad”. The other vehicle  

was not visible to the witness. The witness identified accused  

23

Renta Hembram and Mahendra Hembram of his village who  

were  among  the miscreants.  The  witness  also  identified  

accused Dara Singh (A1) and accused Rajat Kumar Das @Dipu  

(A2) as the miscreants who among others had set fire to the  

vehicles. The witness further stated that the CBI officers had  

shown him 30-40 photographs out of which he identified the  

photographs  of  the  accused  Renta  Hembram,  Mahendra  

Hembram, Dara Singh (A1) and Rajat Kumar Das @ Dipu (A2).  

He is also a witness to the seizure of some articles seized from  

the place  of  occurrence and he has proved the  seizure  list.  

Admittedly,  he did not disclose the names of  these persons  

before either of the aforesaid three I.Os.  

ix)   Raghunath  Dohari  (PW36),  one  of  the  eye-witnesses,  

identified accused Dara Singh, Harish Chandra, Mahadev and  

Turam Ho.  His statement was not recorded by local police and  

the CID but it  was recorded by the CBI on 04.12.1999. He  

belongs to village Manoharpur (place of occurrence). He stated  

that  about  3  years  before  his  deposition  (1999)  during  

Saraswati  puja,  Graham Staines visited  their  village.  In the  

night, he heard the sound of beating. He got up and went to  

24

the church, where there was a gathering of 60-70 persons in  

front of the Church and they were beating the vehicles with  

sticks.  They  brought  straw  and  set  fire  to  the  vehicles  by  

burning  straw.  The  witness  identified  accused  Dara  Singh  

(A1),  Harish  Chandra,  Mahadev  and  Turam  Ho  as  the  

miscreants  who  were  in  the  gatherings  and  set  fire  to  the  

vehicles. It is relevant to point out that apart from the police  

party,  the  Collector  and  other  Police  Officers  though  were  

camping at the place of occurrence, the fact remains that this  

witness  did  not  report  the  incident  either  to  the  concerned  

Investigating Officer or to the Collector for about four months.  

However,  the  fact  remains  that  he  identified  some  of  the  

appellants before the trial Court for the first time.  As stated  

earlier, the legality or otherwise of dock identification, for the  

first  time,  would  be  dealt  with  in  the  later  part  of  the  

judgment.

x)   Another  eye-witness  PW39,  Soleman  Marandi  identified  

accused Dara Singh, Rajat Kumar Dass, Surtha Naik, Harish  

Chandra,  Ojen  Hansda  and  Kartik  Lohar.   Out  of  these  

accused, Ojen Hansda was known to him being resident of his  

25

village. His statement was not recorded by the local police but  

recorded  by  the  CID  on  03.02.1999  and  by  the  CBI  on  

30.05.1999.  He is a resident of village Manoharpur (place of  

occurrence).  He  stated  that  Graham  Staines  visited  

Manhorpur last time about 3 years back i.e. in the year 1999  

after Makar Sankranti. He came there with his two sons and  

other persons in two vehicles. In the third night of his stay, he  

along with his two sons slept in the vehicle during night. The  

vehicles were parked in front of the church. In the midnight,  

the witness heard the sound of beating of vehicles. He came  

out of  the house and went near the church. He found that  

about 30-40 persons had surrounded the vehicles and some of  

them were beating the vehicles in which Graham Staines along  

with his two sons was sleeping. He heard the cries of two sons  

of Graham Staines coming from the vehicle. These people set  

fire to the second vehicle parked near the vehicle of Graham  

Staines.  When  the  vehicle  caught  fire,  the  vehicle  moved  

towards the road. Three of those miscreants put a log of wood  

preventing the vehicle moving further. The witness identified  

accused Dara Singh as (A1), Rajat Kumar Das, Suratha Naik,  

26

Harish Mahanta, Ojen Hansda and Kartik Lohar amongst the  

accused persons in the dock as the miscreants who had set  

fire  to  the  vehicles.  Accused  Ojen  Hansda  belonged  to  his  

village.  The  witness  further  stated  that  CBI  showed  him  

number  of  photographs  among  which  he  identified  

photographs  of  5  persons  who  had  taken  part  in  the  

occurrence.   He  identified  Dara  Singh  (A1)  without  any  

difficulty and it is also corroborated by the slogan he heard  

which miscreants raised in the name of Dara Singh.  

xi)   The  last  eye-witness  examined  on  the  side  of  the  

prosecution is PW43, Lablal Tudu.  He identified accused Dara  

Singh,  Turam Ho,  Daya  Patra  and  Rajat  Kumar  Das.   His  

statement was not recorded by local police and by the CID but  

recorded by the CBI on 03.06.1999.  He is also a resident of  

Manoharpur village and his house is located near the Church  

(the  place  of  occurrence).  He  stated  that  Graham  Staines  

visited their village about three years before his deposition in  

the Court (January, 1999). He came there on Wednesday and  

stayed till  Friday.  On Friday night, Graham Staines and his  

two sons slept in a vehicle parked in front of the church. In  

27

the midnight, his mother (PW2) heard the beating sounds of  

vehicle and woke him up. He found 50-60 persons beating the  

vehicle by lathis in which Graham Staines and his two sons  

had slept. Three-four of them put the straw beneath the empty  

vehicle  and  lit  the  straw  by  matchsticks.  After  setting  the  

empty  vehicle  ablaze,  those  persons  put  straw beneath  the  

vehicle of Graham Staines and his two sons and ignited the  

same. Those two vehicles caught fire and began to burn. The  

witness  identified  four  persons,  namely,  Dara  Singh  (A1),  

Turam Ho (A12), Daya Patra (A14) and Rajat Das (A2) as the  

persons  beating  the  vehicle  and  setting  on  fire.    The  fact  

remains that admittedly he did not report the incident to his  

mother about what he had seen during the occurrence.  He  

also admitted that there was a police camp from the next day  

of the incident.  However, he did not make any statement to  

the State Police and only for the first time his statement was  

recorded by the CBI i.e., five months after the occurrence.

11) It is relevant to note that the incident took place in the  

midnight of 22.01.1999/23.01.1999.  Prior to that, number of  

investigating  officers  had  visited  the  village  of  occurrence.  

28

Statements of most of the witnesses were recorded by PW 55,  

an officer of the CBI.  In the statements recorded by various  

IOs,  particularly,  the  local  police  and  State  CID  these  eye  

witnesses  except  few  claim  to  have  identified  any  of  the  

miscreants involved in the incident.  As rightly observed by the  

High Court,  for  a long number of  days,  many of  these 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.   In these  circumstances,  no  

importance need to be attached on the testimony of these eye-

witnesses  about  their  identification  of  the  appellants  other  

than Dara Singh (A1) and Mahendra Hembram (A3) before the  

trial Court for the first time without corroboration by previous  

TIP held by the Magistrate in accordance with the procedure  

established.  It is well settled principle that in the absence of  

any  independent  corroboration  like  TIP  held  by  judicial  

Magistrate,  the  evidence  of  eye-witnesses  as  to  the  

identification  of  the  appellants/accused  for  the  first  time  

before  the  trial  Court  generally  cannot  be  accepted.   As  

explained in Manu Sharma vs. State (NCT of Delhi) (2010) 6  

29

SCC 1 case, that 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 case on hand  

except for A1 and A3.

12) In  the  same  manner,  showing  photographs  of  the  

miscreants  and  identification  for  the  first  time  in  the  trial  

Court  without  being  corroborated  by  TIP  held  before  a  

Magistrate or without any other material may not be helpful to  

the prosecution case.  To put it clear, the evidence of witness  

given in the court as to the identification may be accepted only  

if he 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 case on hand, (A1) and (A3) were identified  

and also corroborated by the evidence of slogans given in his  

name and each one of the witnesses asserted the said aspect  

insofar as they are concerned.  We have also adverted to the  

fact that 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  

30

fear they did not name the offenders, the fact remains, 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 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  (A1)  and  (A3),  no  other  

corroborative material was shown by the prosecution.   

13) Now  let  us  discuss  the  evidentiary  value  of  photo  

identification and identifying the accused in the dock for the  

first time.  Learned Addl. Solicitor General, in support of the  

prosecution  case  about  the  photo  identification  parade  and  

dock identification, heavily relied on the decision of this Court  

in Manu Sharma (supra).  It was argued in that case that PW  

2 Shyan Munshi  had left  for  Kolkata  and thereafter,  photo  

identification was got  done when SI  Sharad Kumar,  PW 78  

went to Kolkata to get the identification done by picking up  

31

from the photographs wherein he identified the accused Manu  

Sharma though he refused to sign the same. However, in the  

court, PW 2 Shyan Munshi refused to recognise him. In any  

case, the factum of photo identification by PW 2 as witnessed  

by the officer concerned is a relevant and an admissible piece  

of evidence.  In para 254, this Court held:

“Even a TIP before a Magistrate is otherwise hit by Section  162 of the Code. Therefore to say that a photo identification  is hit by Section 162 is wrong. It is not a substantive piece of  evidence. It is only by virtue of Section 9 of the Evidence Act  that  the  same  i.e.  the  act  of  identification  becomes  admissible in court. The logic behind TIP, which will include  photo identification lies in the fact that it is only an aid to  investigation,  where  an  accused  is  not  known  to  the  witnesses, the IO conducts a TIP to ensure that he has got  the right person as an accused. The practice is not borne out  of procedure, but out of prudence. At best it can be brought  under Section 8 of the Evidence Act, as evidence of conduct  of a witness in photo identifying the accused in the presence  of  an  IO  or  the  Magistrate,  during  the  course  of  an  investigation.”

It was further held:

It is trite to say that the substantive evidence is the evidence  of identification in court. Apart from the clear provisions of  Section 9 of  the  Evidence  Act,  the  position in law is  well  settled  by  a  catena  of  decisions  of  this  Court.  The  facts,  which  establish  the  identity  of  the  accused  persons,  are  relevant under Section 9 of the Evidence Act. As a general  rule, the substantive evidence of a witness is the statement  made  in  court.  The  evidence  of  mere  identification  of  the  accused person at the trial for the first time is from its very  nature inherently of a weak character. The purpose of a prior  test  identification,  therefore,  is  to  test  and strengthen the  trustworthiness  of  that  evidence.  It  is,  accordingly,  considered  a  safe  rule  of  prudence  to  generally  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  identification  proceedings.  This  rule  of  prudence,  however,  is  subject  to  exceptions,  when,  for  

32

example, the court is impressed by a particular witness on  whose testimony it  can safely  rely,  without  such or  other  corroboration. The identification parades belong to the stage  of investigation, and there is no provision in the Code which  obliges  the investigating agency to hold or  confers a right  upon the accused to claim a test identification parade. They  do not constitute substantive evidence and these parades are  essentially governed by Section 162 of the Code. Failure to  hold  a  test  identification  parade  would  not  make  inadmissible  the  evidence  of  identification  in  court.  The  weight  to  be  attached  to  such  identification  should  be  a  matter  for  the  courts  of  fact.  In  appropriate  cases  it  may  accept the evidence of identification even without insisting  on corroboration.  

It was further held that “the photo identification and TIP are  

only aides in the investigation and do not form substantive  

evidence.   The  substantive  evidence  is  the  evidence  in  the  

court on oath”.

14) In  Umar  Abdul  Sakoor  Sorathia vs.  Intelligence  

Officer,  Narcotic Control Bureau,  AIR 1999 SC 2562,  the  

following conclusion is relevant:

“12. In the present case prosecution does not say that they  would rest with the identification made by Mr. Mkhatshwa  when the photograph was shown to him.  Prosecution has to  examine him as a witness in the court and he has to identify  the  accused  in  the  court.   Then  alone  it  would  become  substantive evidence.  But that does not mean that at this  stage the court is disabled from considering the prospect of  such  a  witness  correctly  identifying  the  appellant  during  trial.  In so considering the court can take into account the  fact  that  during  investigation  the  photograph  of  the  appellant was shown to the witness and he identified that  person as the one whom he saw at the relevant time”

33

15) In  Jana Yadav vs.  State of Bihar, (2002) 7 SCC 295,  

para 38, the following conclusion is relevant:

“Failure to hold test identification parade does not make the  evidence of  identification in court  inadmissible,  rather  the  same  is  very  much  admissible  in  law,  but  ordinarily  identification of an accused by a witness for the first time in  court  should  not  form  the  basis  of  conviction,  the  same  being from its  very nature inherently  of  a  weak character  unless it is corroborated by his previous identification in the  test identification parade or any other evidence. The previous  identification  in  the  test  identification  parade  is  a  check  valve to the evidence of identification in court of an accused  by a witness and the same is a rule of prudence and not law.

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 the  

dock as mentioned above without corroborative evidence the  

dock  identification  alone  cannot  be  treated  as  substantial  

evidence, though it is permissible.  

16) Mr. Tulsi, learned senior counsel for the accused heavily  

commented  on  the  statements  of  eye-witnesses  which,  

according to him, are contradictory to each other on material  

points.  He highlighted that exaggerated and improved version  

of the incident makes it difficult to place implicit reliance on  

34

the statements of  any of  these witnesses.   He cited various  

instances in support of his claim.   

a) As  regards  the  number  of  persons  who  have  allegedly  

attacked the vehicles, it was pointed out that PW 23 - Joseph  

Marandi (brother of PW 15)/Christian/15 years at the time of  

incident)  has  stated  that  20-22  persons  surrounded  the  

vehicle.  On the other hand, PW 39 - Soleman Marandi and  

PW  10  -  Nimai  Hansda  deposed  that  30/40  persons  

surrounded  the  vehicle.   PW  15  -   Mathai  Marandi  found  

40/50 persons were beating with lathis.  PW 43 - Lablal Tudu  

(son of PW 2) deposed that 50/60 persons were beating the  

vehicle  whereas  PW 2 -  Basi  Tudu found 60 persons going  

towards the church.  PW 3, Paul Murmu found 60/70 persons  

putting straw beneath the vehicle and setting fire.  PW 36 –  

Raghunath  Dohal  mentioned  that  about  60-70  people  

gathered in front of the church.      

b) As regards straw being kept on the roof of the vehicle to  

prevent  cold,  PWs  3,  10,  11,  15,  36,  39,  43,  45  and  52  

mentioned different versions.  

35

c) With regard to whether there was a light or not which is  

vital for identification of miscreants prior to vehicle caught fire,  

PW 2 has stated that Moon had already set and he identified  

Chenchu  and  A  7  in  the  light  of  lamp  (dibri)  put  in  the  

verandah.  On the other hand, PW 5, who was 11 years old at  

the time of evidence has mentioned that it was dark night.  PW  

11 has stated that he had not seen any lamp burning in the  

verandah  of  neighbours  but  saw  some  miscreants  due  to  

illumination  of  fire.   PW  43  has  stated  that  there  is  no  

electricity  supply in the village and stated that they do not  

keep light in verandah while sleeping inside the house during  

night.  

d) About chilly wintry night, PW3 has stated it was chilly  

night  with dew dropping  whereas  PW15 has stated  that  he  

cannot say whether there was fog at the night of occurrence  

and  PW 36  has  stated  it  was  wintry  night  and  PW52  has  

stated fog occurs during the month of December and January  

and  he  could  not  say  if  there  was  any  fog  at  the  night  of  

occurrence.  

36

e) With  regard  to  clothes  worn  by  attackers,  PW36  has  

stated that A1 was wearing a Punjabi Kurta, A3 and A12 were  

wearing a banian.  PW19 has stated that he saw 9 persons out  

of which 8 were wearing trousers and shirts and one person  

who was addressed as Dara was wearing a lungi and Punjabi  

Kurta.   PW39 has  stated  that  during  winter  season people  

usually come with their body covered.  PW52 has stated that  

usually  people  wear  winter  clothing  during  December  and  

January.  

f) With regard to the aspect whether the accused persons  

had covered their faces, PW 4 who is the informant has stated  

that  the  faces  of  the  accused  were  covered.   On the  other  

hand,  PWs 11,  15 and 36 have asserted that none covered  

their faces.  

g) As regard to who lit the fire, PW3 has stated that a short  

person  lit  fire.   PW10  has  mentioned  that  he  did  not  see  

anyone whereas PW11 has stated that number of people set  

fire.  PW32 has mentioned that there was no gathering near  

the vehicles when they caught fire.  PW 36 has stated not seen  

any villager in between the house of the PW4 and the Church  

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and PW39 has stated he had not seen any female near the  

place of occurrence.  

h) As regard to whether Nagin dance was over or not, PW 32  

had deposed that when the vehicle caught fire, Nagin dance  

was being performed whereas PW 39 has deposed that dance  

continued throughout the night.  

i) Whether  Nagin  dance  was  visible  from  the  place  of  

occurrence,  PW 3 has stated that  it  was not  visible  due to  

darkness.  PW 4 has stated the distance between Nagin dance  

and Church is 200 ft.  PW 5 has stated that Church was not  

visible from the place of Nagin dance and the distance was 200  

ft.   PW 6 has mentioned that  Church was visible  from the  

place of Nagin dance and distance was 200 ft and finally PW  

32 has stated the church was visible from the place of Nagin  

dance.  

j) With regard to distance between place of occurrence and  

Nagin dance, PW 15 has mentioned the distance is 200 ft.  PW  

32 has stated that vehicles were visible from the place of Nagin  

dance, PW 36 has stated Nagin dance staged 10-12 houses  

apart  from Church at front side whereas PW 39 has stated  

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Nagin dance staged 4 houses apart from Chruch and PW 43  

has stated that it was staged 5 houses apart from church and  

he  admitted  that  he  was  not  sure  of  the  distance  between  

church and the place of Nagin dance.  

k) With regard to their arrival at the place of occurrence, PW  

11 has stated that PWs 4, 15 and 23 came to the place of  

occurrence an hour after the miscreants left the place whereas  

they deposed that they were present there from the beginning.  

PW 10 has stated that he woke up on hearing bursting and  

beating sound.  PW 15 has deposed that he went to the huts  

behind the church and called PWs 10, 3 and others.  PW 3 has  

stated that he was woken up by PW 10.   

17) By pointing out these contradictions, Mr. Tulsi submitted  

that  the  presence  of  these  witnesses  becomes  doubtful.  

However, if we see these witnesses through microscope, it is  

true that the above mentioned contradictions would be visible  

and clear but by and large they explained the prosecution case  

though they could not identify all  the accused persons with  

clarity except Dara Singh (A1) and Mahendra Hembram (A3).  

By virtue of these minor contradictions, their testimony cannot  

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be  rejected  in  toto.   But,  by  and  large,  there  are  minor  

contradictions  in  their  statements  as  demonstrated  by  Mr.  

Tulsi.   In  the face  of  the  above-mentioned difference in the  

evidence  of  prosecution  witnesses  with  regard  to  light,  

clothing, number of accused persons, fog, faces covered or not,  

it is not acceptable in toto except certain events and incidents  

which are reliable and admissible in evidence.  

CONFESSIONS:

18) It  was  submitted  that  confessions  of  various  accused  

persons, namely, A9, A 11 and A 12 under Section 164 Cr.P.C.  

cannot be considered to be voluntary on account of the fact  

that  all  the  co-accused  persons  were  produced  before  the  

Magistrate  from police  custody and were remanded back to  

police custody.  It was further highlighted that accused No. 14  

was produced from police custody for recording his confession  

while A 13 made his statement when he was on bail and in no  

case the Magistrate ensured the accused persons that if they  

decline  they  would  not  be  sent  to  police  custody.   It  was  

further highlighted that illiterate accused persons cannot be  

expected to have knowledge of finest nuances of procedure.  It  

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was pointed that besides all confessions being exculpatory and  

made after conspiracy ceases to be operative are inadmissible.  

Finally, it was stated that Section 164 Cr.P.C. requires faithful  

compliance and failure impairs their evidentiary value.  

19) Section  164  Cr.P.C.  speaks  about  recording  of  

confessions and statements.  It reads thus:

“164. Recording of confessions and statements. (1) Any  Metropolitan Magistrate or Judicial Magistrate may, whether  or not he has jurisdiction in the case, record any confession  or statement made to him in the course of an investigation  under this Chapter or under any other law for the time being  in  force,  or  at  any,  time  afterwards  before  the  commencement of the inquiry or trial:

Provided that any confession or statement made under this  sub-section may also be recorded by audio-video electronic  means in the presence of the advocate of the person accused  of an offence:

Provided that  no  confession shall  be  recorded by a  police  officer  on  whom  any  power  of  a  Magistrate  has  been  conferred under any law for the time being in force.

(2)  The  Magistrate  shall,  before  recording  any  such  confession, explain to the person making it  that he is not  bound to make a confession and that, if he does so, it may  be used as evidence against him; and the Magistrate shall  not record any such confession unless, upon questioning the  person making it,  he has reason to believe that it is bear,  made voluntarily.

(3)  If  at  any  time  before  the  confession  is  recorded,  the  person appearing before the Magistrate states that he is not  willing  to  make  the  confession,  the  Magistrate  shall  not  authorize the detention of such person in police custody.

(4)  Any  such confession  shall  be  recorded in  the  manner  provided in section 281 for recording the examination of an  

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accused person and shall be signed by the person making  the  confession;  and  the  Magistrate  shall  make  a  memorandum at  the  foot  of  such  record  to  the  following  effect.

"I have explained to (name) that he is not bound to make a  confession and that, if he does so, any confession he may  make may be used as evidence against him and I believe  that this confession was voluntarily made. It was taken in  my presence and hearing, and was read over to the person  making  it  and  admitted  by  him  to  be  correct,  and  it  contains a full and true account of the statement made by  him.

(Signed) A.B. Magistrate

(5)  Any  statement  (other  than a  confession)  made  under  sub-section (1) shall be recorded in such manner hereinafter  provided for the recording of evidence as is, in the opinion of  the Magistrate, best fitted to the circumstances of the case;  and the Magistrate shall have power to administer oath to  the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under  this section shall forward it to the Magistrate by whom the  case is to be inquired into or tried. “

20) While elaborating non-compliance of mandates of Section  

164 Cr.P.C., Mr. Tulsi,  learned senior counsel appearing for  

the accused cited various instances.  

(a)  Accused  No.  9,  Rabi  Soren,  was  arrested  by  the  

investigating  agency  and  remanded  to  police  custody  for  7  

days  i.e.  from  20.05.1999.   It  is  their  claim  that  on  

18.05.1999,  Accused No.9 made a  statement  under  Section  

164 Cr.P.C. and thereafter remanded back to police custody.  

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It  was also pointed out that in his statement under Section  

313 Cr.P.C. the accused person stated that he was beaten by  

the investigating agency.  

(b) Another instance relates to Mahadev Mahanta, Accused  

No. 11 who was arrested on 01.07.1999 by the investigating  

agency and he was remanded to police custody.  However, on  

08.07.1999, Accused No. 11 made a statement under Section  

164 Cr.P.C.  PW 55, I.O. has stated that the statement of the  

accused was recorded under Section 164 Cr.P.C. that he was  

under  police  custody  and he  was  remanded back  to  police  

custody.  In his statement under Section 313 Cr.P.C. he also  

stated that he was beaten by the investigating agency.  

(c) In the case of Turam Ho Accused No. 12, he was arrested  

on  13.05.1999  by  the  Investigating  Agency  and  from  

19.05.1999 to 23.05.1999 the accused person was in custody  

of  the  investigating  agency.   While  so,  on  21.05.1999,  the  

accused No. 12 made a statement under Section 164 Cr.P.C  

and  thereafter  remanded  back  to  police  custody.   It  was  

pointed out that he also stated in his statement under Section  

313 Cr.P.C. that he was beaten by the investigating agency.   

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(d) The next instance relates to Umakanta Bhoi, Accused No.  

13 who refused to make a statement under Section 164 Cr.P.C  

prayed  by  I.O.  to  be  put  for  16.03.1999  for  recording  

statement.   It  was  directed  to  jail  authority  to  keep  the  

accused under calm and cool atmosphere.  A 13 was produced  

from Judicial Custody for recording statement under Section  

164 Cr.P.C. and he refused to make a statement.  However, on  

31.08.1999, he made a confessional statement.    

(e) In  the  case  of  Dayanidhi  Patra,  Accused  No.  14,  on  

21.09.1999, he was arrested by the Investigating Agency.  On  

24.09.1999, Learned ASJ granted police remand for 7 days i.e.  

on 01.10.1999 and that on that day A 14 made a statement  

under  Section  164  Cr.P.C.   It  was  pointed  out  that  in  his  

statement  under  Section  313  Cr.P.C.  the  accused  person  

stated that he was beaten by the investigating agency.    

21)  Before analyzing the confessional statements of various  

accused  persons  and  its  applicability  and  the  procedure  

followed by the Magistrate in recording the statement, let us  

consider various decisions touching these aspects.

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22)  In Bhagwan Singh and Ors. vs. State of M.P. (2003) 3  

SCC 21, while considering these issues, it was held:

“27……The  first  precaution  that  a  Judicial  Magistrate  is  required to take is to prevent forcible extraction of confession  by  the  prosecuting  agency  (see  State  of  U.P. v.  Singhara  Singh,  AIR 1964 SC 358). It was also held by this Court in  the case of Shivappa v. State of Karnataka, (1995) 2 SCC 76  that the provisions of Section 164 CrPC must be complied  with not only in form, but in essence. Before proceeding to  record the confessional statement, a searching enquiry must  be made from 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 prosecution. 28. It has also been held that the Magistrate in particular  should  ask  the  accused  as  to  why  he  wants  to  make  a  statement which surely shall go against his interest in the  trial. He should be granted sufficient time for reflection. He  should  also  be  assured  of  protection  from  any  sort  of  apprehended torture or pressure from the police in case he  declines to make a confessional statement. Unfortunately, in  this case, the evidence of the Judicial Magistrate (PW 1) does  not  show  that  any  such  precaution  was  taken  before  recording the judicial confession. 29. The confession is  also  not  recorded in  questions-and- answers form which is the manner indicated in the criminal  court rules. 30. It has been held that there was custody of the accused  Pooran  Singh  with  the  police  immediately  preceding  the  making of the confession and it  is sufficient to stamp the  confession as involuntary  and hence unreliable.  A judicial  confession not given voluntarily is unreliable, more so when  such a confession is retracted. It is not safe to rely on such  judicial confession or even treat it as a corroborative piece of  evidence in the case. When a judicial confession is found to  be not voluntary and more so when it  is retracted,  in the  absence of other reliable evidence, the conviction cannot be  based on such retracted judicial confession. (See  Shankaria  v. State of Rajasthan, (1978) 3 SCC 435 (para 23)”

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23)  In Shivappa vs.  State of Karnataka (1995) 2 SCC 76,  

while reiterating the same principle it was held:-

“6. From the plain language of Section 164 CrPC and the  rules and guidelines framed by the High Court regarding the  recording  of  confessional  statements  of  an accused  under  Section  164  CrPC,  it  is  manifest  that  the  said  provisions  emphasise  an  inquiry  by  the  Magistrate  to  ascertain  the  voluntary nature of the confession. This inquiry appears to  be the most significant and an important part of the duty of  the  Magistrate  recording  the  confessional  statement  of  an  accused  under  Section  164  CrPC.  The  failure  of  the  Magistrate  to  put  such  questions  from  which  he  could  ascertain the voluntary nature of the confession detracts so  materially from the evidentiary value of the confession of an  accused that it would not be safe to act upon the same. Full  and adequate compliance not merely in form but in essence  with  the  provisions  of  Section  164  CrPC  and  the  rules  framed  by  the  High  Court  is  imperative  and  its  non- compliance goes to the root of the Magistrate’s jurisdiction to  record the confession and renders the confession unworthy  of  credence.  Before  proceeding  to  record  the  confessional  statement,  a  searching  enquiry  must  be  made  from  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 prosecution still lurking in the mind of an accused. In  case the Magistrate discovers on such enquiry that there is  ground  for  such  supposition  he  should  give  the  accused  sufficient time for reflection before he is asked to make his  statement and should assure himself that during the time of  reflection,  he  is  completely  out  of  police  influence.  An  accused  should  particularly  be  asked  the  reason  why  he  wants to make a statement which would surely go against  his self-interest in course of  the trial,  even if  he contrives  subsequently  to  retract  the  confession.  Besides  administering the caution, warning specifically provided for  in the first  part  of  sub-section (2)  of  Section 164 namely,  that the accused is not bound to make a statement and that  if he makes one it may be used against him as evidence in  relation to his complicity in the offence at the trial, that is to  follow,  he  should  also,  in  plain  language,  be  assured  of  protection from any sort of apprehended torture or pressure  from such extraneous agents as the police or the like in case  he declines to make a statement and be given the assurance  

46

that even if he declined to make the confession, he shall not  be remanded to police custody. 7.  The  Magistrate  who  is  entrusted  with  the  duty  of  recording  confession  of  an  accused  coming  from  police  custody or jail custody must appreciate his function in that  behalf  as  one  of  a  judicial  officer  and he  must  apply  his  judicial mind to ascertain and satisfy his conscience that the  statement  the  accused  makes  is  not  on  account  of  any  extraneous influence on him. That indeed is the essence of a  ‘voluntary’ statement within the meaning of the provisions of  Section 164 CrPC and the rules framed by the High Court for  the  guidance  of  the  subordinate  courts.  Moreover,  the  Magistrate  must  not  only  be  satisfied  as  to  the  voluntary  character of the statement, he should also make and leave  such material on the record in proof of the compliance with  the imperative requirements of the statutory provisions, as  would satisfy  the court  that sits  in judgment in the case,  that the confessional  statement was made by the accused  voluntarily  and  the  statutory  provisions  were  strictly  complied with.

8. From a perusal of the evidence of PW 17, Shri Shitappa,  Additional  Munsif  Magistrate,  we find that though he had  administered the caution to the appellant that he was not  bound  to  make  a  statement  and  that  if  he  did  make  a  statement that may be used against him as evidence but PW  17 did not disclose to the appellant that he was a Magistrate  and that the confession was being recorded by him in that  capacity nor made any enquiry to find out whether he had  been influenced by anyone to make the confession. PW 17  stated during his deposition in court: “I have not stated to  the accused that I am a Magistrate” and further admitted: “I  have not asked the accused as to whether the police have  induced  them  (Chithavani)  to  give  the  statement.”  The  Magistrate,  PW  17  also  admitted  that  “at  the  time  of  recording the statement of the accused no police or police  officials were in the open court.  I cannot tell as to whether   the police or police officials were present in the vicinity of the   court”. From  the  memorandum  prepared  by  the  Munsif  Magistrate, PW 17 as also from his deposition recorded in  court it is further revealed that the Magistrate  did not lend  any  assurance  to  the  appellant  that  he  would  not  be sent   back  to  the  police  custody  in  case  he  did  not  make  the   confessional  statement. Circle  Police  Inspector  Shivappa  Shanwar, PW 25 admitted that the sub-jail, the office of the  Circle Police Inspector and the police station are situated in  the  same  premises. No  contemporaneous  record  has  been  placed on the record to show that the appellant had actually  

47

been kept in the sub-jail, as ordered by the Magistrate on  21-7-1986 and that he was out of the zone of influence by  the police keeping in view the location of the sub-jail and the  police station. The prosecution did not lead any evidence to  show that any jail authority actually produced the appellant  on 22-7-1986 before the Magistrate. That apart,  neither on  21-7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17  question  the  appellant  as  to  why  he  wanted  to  make  the   confession  or  as  to  what  had  prompted  him  to  make  the   confession. It  appears to us quite obvious that the Munsif  Magistrate,  PW  17  did  not  make  any  serious  attempt  to  ascertain  the  voluntary  character  of  the  confessional  statement.  The  failure  of  the  Magistrate  to  make  a  real  endeavour  to  ascertain  the  voluntary  character  of  the  confession, impels us to hold that the evidence on the record  does  not  establish  that  the  confessional  statement  of  the  appellant recorded under Section 164 CrPC was voluntary.  The cryptic manner of holding the enquiry to ascertain the  voluntary  nature  of  the  confession  has  left  much  to  be  desired  and has  detracted  materially  from the  evidentiary  value of the confessional statement. It would, thus, neither  be prudent nor safe to act upon the confessional statement  of the appellant…..”

24)  In Dagdu and Others vs. State of Maharashtra, (1977)  

3 SCC 68,  the following paragraph is relevant:-

“51.  Learned Counsel appearing for the State is right that  the  failure  to  comply  with  Section  164(3)  of  the  Criminal  Procedure Code, or with the High Court Circulars will  not  render the confessions inadmissible in evidence. Relevancy  and  admissibility  of  evidence  have  to  be  determined  in  accordance with the provisions of the Evidence Act. Section  29 of that Act lays down that if  a confession is otherwise  relevant it does not become irrelevant merely because, inter  alia, the accused was not warned that he was not bound to  make it and the evidence of it might be given against him. If,  therefore,  a  confession  does  not  violate  any  one  of  the  conditions operative under Sections 24 to 28 of the Evidence  Act, it will be admissible in evidence. But as in respect of any  other  admissible  evidence,  oral  or  documentary,  so in the  case  of  confessional  statements  which  are  otherwise  admissible, the Court has still to consider whether they can  be  accepted  as  true.  If  the  facts  and  circumstances  surrounding  the  making  of  a  confession appear  to  cast  a  doubt on the veracity or voluntariness of the confession, the  

48

Court  may refuse to act  upon the confession even if  it  is  admissible in evidence. That shows how important it is for  the Magistrate who records the confession to satisfy himself  by appropriate questioning of the confessing accused, that  the confession is  true and voluntary.  A strict  and faithful  compliance  with  Section  164  of  the  Code  and  with  the  instructions  issued  by  the  High  Court  affords  in  a  large  measure the guarantee that the confession is voluntary. The  failure to observe the safeguards prescribed therein are in  practice  calculated  to  impair  the  evidentiary  value  of  the  confessional statements.”

25)  Davendra Prasad Tiwari vs. State of U.P. (1978) 4 SCC  

474,  the  following  conclusion  arrived  at  by  this  Court  is  

relevant:-

“13….. It is also true that before a confessional statement  made under Section 164 of the Code of Criminal Procedure  can be acted upon, it must be shown to be voluntary and  free  from  police  influence  and  that  the  confessional  statement made by the appellant in the instant case cannot  be taken into account, as it suffers from serious infirmities  in that (1) there is no contemporaneous record to show that  the  appellant  was  actually  kept  in  jail  as  ordered  on  September 6, 1974 by Shri R.P. Singh, Judicial Magistrate,  Gorakhpur, (2) Shri R.P. Singh who recorded the so called  confessional statement of the appellant did not question him  as to why he was making the confession and (3) there is also  nothing in the statement of the said Magistrate to show that  he told the appellant that he would not be remanded to the  police lock-up even if he did not confess his guilt. It cannot  also be gainsaid that the circumstantial evidence relied upon  by  the  prosecution  must  be  complete  and  incapable  of  explanation of any other hypothesis than that of the guilt of  the accused.”

26) In  Kalawati & Ors.  vs.  State of Himachal Pradesh,  

1953 SCR 546 at 631, this Court held:

“…In  dealing  with  a  criminal  case  where  the  prosecution  relies  upon the  confession  of  one  accused person  against  another accused person, the proper approach to adopt is to  

49

consider the other evidence against such an accused person,  and if the said evidence appears to be satisfactory and the  court is inclined to hold that the said evidence may sustain  the  charge  framed  against  the  said  accused  person,  the  court turns to the confession with a view to assure itself that  the conclusion which it is inclined to draw from the other  evidence is right.”

27)  In  State  thr.  Superintendent  of  Police,  CBI/SIT vs.  

Nalini and Others (1999) 5 SCC 253 at 307, the following  

paragraphs are relevant which read as under:-

“96.  What is the evidentiary value of a confession made by  one accused as against another accused apart from Section  30 of  the Evidence Act? While  considering that  aspect  we  have to bear in mind that any confession, when it is sought  to  be  used  against  another,  has  certain  inherent  weaknesses.  First  is,  it  is  the  statement  of  a  person who  claims  himself  to  be  an  offender,  which  means,  it  is  the  version of an accomplice. Second is, the truth of it cannot be  tested by cross-examination.  Third is,  it  is not an item of  evidence given on oath. Fourth is, the confession was made  in the absence of the co-accused against whom it is sought  to be used.

97. It is well-nigh settled, due to the aforesaid weaknesses,  that confession of a co-accused is a weak type of evidence. A  confession can be used as a relevant  evidence against  its  maker  because  Section  21  of  the  Evidence  Act  permits  it  under certain  conditions.  But  there  is  no provision which  enables  a  confession  to  be  used  as  a  relevant  evidence  against another person. It is only Section 30 of the Evidence  Act  which  at  least  permits  the  court  to  consider  such  a  confession as against another person under the conditions  prescribed therein. If Section 30 was absent in the Evidence  Act no confession could ever have been used for any purpose  as  against  another  co-accused  until  it  is  sanctioned  by  another statute. So, if Section 30 of the Evidence Act is also  to  be  excluded  by  virtue  of  the  non  obstante  clause  contained in Section 15(1)  of  TADA, under what provision  can a confession of one accused be used against another co- accused at all? It must be remembered that Section 15(1) of  TADA does not say that a confession can be used against a  co-accused.  It  only  says  that  a  confession  would  be  admissible in a trial of not only the maker thereof but a co- accused, abettor or conspirator tried in the same case.

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98.  Sir John Beaumont speaking for five Law Lords of the  Privy Council in  Bhuboni Sahu v.  R., AIR 1949 PC 257 had  made the following observations: “Section 30 seems to be based on the view that an admission  by an accused person of his own guilt affords some sort of  sanction in support  of  the truth of  his confession against  others as well as himself. But a confession of a co-accused is  obviously evidence of a very weak type. It does not indeed  come within the definition of ‘evidence’ contained in Section  3, Evidence Act. It is not required to be given on oath, nor in  the  presence  of  the  accused,  and  it  cannot  be  tested  by  cross-examination. It is a much weaker type of evidence than  the evidence of an approver which is not subject to any of  those  infirmities.  Section  30,  however,  provides  that  the  court  may  take  the  confession  into  consideration  and  thereby, no doubt, makes it evidence on which the court may  act; but the section does not say that the confession is to  amount to proof. Clearly there must be other evidence. The  confession is only one element in the consideration of all the  facts proved in the case;  it  can be put into the scale and  weighed with the other evidence.” 99.  The above observations had since been treated as the  approved and established position regarding confession vis- à-vis  another  co-accused.  Vivian  Bose,  J.,  speaking  for  a  three-Judge Bench in  Kashmira Singh v.  State of M.P., AIR  1952 SC 159 had reiterated the same principle after quoting  the  aforesaid  observations.  A  Constitution  Bench  of  this  Court has followed it in Haricharan Kurmi v.  State of Bihar,   AIR 1964 SC 1184.”

28)  In  State of Maharashtra vs.  Damu (2000) 6 SCC 269,  

the same principles had been reiterated which read as under:-

“19. We  have  considered  the  above  reasons  and  the  arguments addressed for and against them. We have realised  that  those  reasons  are  ex  facie  fragile.  Even  otherwise,  a  Magistrate  who  proposed  to  record  the  confession  has  to  ensure that the confession is free from police interference.  Even if he was produced from police custody, the Magistrate  was not to record the confession until the lapse of such time,  as he thinks necessary to extricate his mind completely from  fear of the police to have the confession in his own way by  telling the Magistrate the true facts.

25. We may make it clear that in Kashmira Singh this Court  has rendered the ratio that confession cannot be made the  foundation of  conviction in  the  context  of  considering  the  utility of that confession as against a co-accused in view of  

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Section 30 of the Evidence Act. Hence the observations in  that  decision  cannot  be  misapplied  to  cases  in  which  confession  is  considered  as  against  its  maker.  The  legal  position  concerning  confession  vis-à-vis  the  confessor  himself has been well-nigh settled by this Court in  Sarwan  Singh Rattan Singh v. State of Punjab as under:  “In law it is always open to the court to convict an accused  on his confession itself though he has retracted it at a later  stage.  Nevertheless  usually  courts  require  some  corroboration to the confessional statement before convicting  an accused person on such a statement.  What amount of  corroboration  would  be  necessary  in  such  a  case  would  always be a question of fact to be determined in the light of  the circumstances of each case.”

This has been followed by this Court in Kehar Singh v. State   (Delhi Admn.)”

29)  The following principles emerge with regard to Section  

164 Cr.P.C.:-

(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 statement, a  

searching enquiry must be made from 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 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.

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(iv) The  maker  should  be  granted  sufficient  time  for  

reflection.

(v) He  should  be  assured  of  protection  from  any  sort  of  

apprehended torture or pressure from the police 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  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 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 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 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.

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(xi) Usually the Court requires some corroboration from the  

confessional statement before convicting the accused person  

on such a statement.

Judicial Magistrates (PWs-29 & 34)

30) Ashok Kumar Agrawal, PW29 and Tojaka Bharti, PW34,  

Judicial  Magistrates recorded the confessional statements of  

some of the accused.  Judicial Magistrate, PW29 recorded the  

confessional  statement  of  Rabi  Soren  and   Turam  Ho  and  

PW34, Judicial Magistrate recorded the confessional statement  

of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi Patra.  It  

is the claim of Mr. K.T.S. Tulsi, learned senior counsel for the  

accused,  that  the  evidence  of  PW29  and  PW34,  Judicial  

Magistrates  shows that  they  were  blissfully  unaware  of  the  

stringent responsibility cast on them by Section 164 Cr.P.C.  

According  to  him,  their  evidence  create  an  impression  that  

they  were  not  aware  of  the  difference  between  the  police  

custody and judicial custody nor do they seem to understand  

the significance of Section 164 Cr.P.C.  He pointed out that  

why the first four pages in case of each of the accused persons  

is not signed by the accused is not explained.  They neither  

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asked any searching questions regarding the nature of custody  

either from the accused persons or from police nor did they  

scrutinize  the  records  to  ascertain  the  same  from  remand  

orders.   He also pointed out that none of  the accused who  

have  confessed  had  been  given  the  assurance  that  if  they  

refuse to make any confession, they would not be remanded to  

police custody.  This assurance is required for an accused to  

make  an  informed  decision  being  fully  aware  of  the  

consequences of refusing.

31) It is seen from the evidence of PW29, who recorded the  

confession of Rabi Soren, that at the relevant time the accused  

was  in  the  custody  of  CBI  and  from  that  custody  he  was  

produced  before  the  Addl.  Chief  Judicial  Magistrate  on  

18.05.1999.   Though  PW29  had  asked  the  accused  many  

things about the voluntariness, the High Court, on analysis of  

his entire evidence, came to a conclusion that only a routine  

statutory certificate as required under Section 164 Cr.P.C. was  

given by him.  The High Court also pointed out that he did not  

caution that if the accused Rabi Soren refused to make any  

confession,  he  would  not  be  remanded  to  C.B.I.  or  Police  

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custody.   He  was  not  informed  that  if  he  confessed,  such  

confession may be used in evidence against him and on that  

basis there was possibility of his being sentenced to death or  

life imprisonment.  It was also pointed out that his body was  

not  checked to find out  as to whether  he was subjected to  

torture when he was in police custody.  It was also pointed out  

by the High Court that five hours’ time was given for reflection  

during which period he was in the custody of his Bench Clerk  

in his Chamber.  PW29, after recording confessional statement  

of  Rabi  Soren  on  18.05.1999,  again  remanded  him  to  the  

custody of police, i.e. C.B.I. till 20.05.1999.  This is clear from  

the evidence of PW55 (I.O.).   It is relevant to point out that  

under  sub-section  (3)  of  Section  164  Cr.P.C.  that  if  any  

accused  refuses  to  make  any  confessional  statement,  such  

Magistrate  shall  not  authorize  detention  of  the  accused  in  

police custody.  Remanding Rabi Soren to Police custody after  

his statement was recorded under Section 164 Cr.P.C. is not  

justified.  As rightly observed by the High Court, possibility of  

coercion, threat or inducement to the accused Rabi Soren to  

make  the  confession  cannot  be  ruled  out.   In  the  same  

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manner,  confession of  another accused Turam Ho was also  

recorded by the very same Magistrate.  Here again, 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.  Equally he was not cautioned by PW29  

that  if  he  refused  to  make  the  confessional  statement,  he  

would not be remanded to police custody.  It is further seen  

that both of these accused, in their confessional statements,  

made exculpatory statements.   

32) PW34,  Judicial  Magistrate,  recorded  the  confessional  

statement  of  accused  Mahadev  Mahanta  on  08.07.1999  

immediately after  his production before him from the police  

custody.  PW34 was directed by the Addl. C.J.M. to record the  

confessional  statement  of  Mahadev  Mahanta.   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  Dayanidhi  Patra  whose  

statement  was  recorded  by  PW34.   The  High  Court,  on  

corroboration of  the confessional  statement,  had found that  

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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 i.e. on 22.06.1999.  The analysis of evidence of PWs  

29  &  34  –  Judicial  Magistrates  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 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  recording  such  confession,  have  not  

been fully adhered to by them.   

33) Apart  from  the  strong  observation  of  the  High  Court  

about procedural lapse on the part of PWs 29 & 34, we also  

verified their statements and requirements in terms of Section  

164 Cr.P.C.  In the certificate,  there is no specific reference  

about  the  nature  of  the  custody  from which  these  persons  

were produced nor about the assurance that they would not  

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be  remanded  to  police  custody  if  they  declined.   We  have  

already pointed out that 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 of  

confession  on which no reliance  can be  placed.   As  rightly  

observed  by  the  High  Court,  no  exceptional  circumstances  

could be brought to our notice by the prosecution in respect of  

the appellants other than A1 and A3.           

34) It was next argued that the incident could not have been  

happened as suggested by the prosecution.  According to the  

learned senior counsel for the accused the reason of possibility  

of the incident which took place in the dead of the night as a  

result  of  the  accident  from  burning  of  the  stove  etc.  for  

generating heat on cold wintry night cannot be ruled out.  In  

support  of  the  above  contention,  he  pointed  out  several  

circumstances which are inconsistent with the fire starting by  

arson from outside.  On going through the entire materials, we  

are unable to accept the said contention.  Though we noticed  

several  inconsistencies  in  the  prosecution  evidence  and the  

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accused persons were not specifically identified except A1 and  

A3, the fact remains that the Van in which Graham Staines  

and his two children were sleeping were set on fire and burnt  

to death due to the cause of the miscreants.  In other words,  

death of these three 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 witnesses  

could not pin-point and identify the role of each accused.

35) Another question which we have to consider is whether  

the  Police  (CBI)  had  the  power  under  the  Cr.P.C.  to  take  

specimen signature and writing of A3 for examination by the  

expert.  It was pointed out that during investigation, even the  

Magistrate  cannot  direct  the  accused  to  give  his  specimen  

signature  on  the  asking  of  the  police  and  only  in  the  

amendment of the Cr.P.C. in 2005, power has been given to  

the Magistrate to direct any person including the accused to  

give his specimen signature for the purpose of investigation.  

Hence, it was pointed out that taking of his signature/writings  

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being per se illegal, the report of the expert cannot be used as  

evidence against him.  To meet the above claim, learned Addl.  

Solicitor General heavily relied on a 11-Judge Bench decision  

of this Court in The State of Bombay vs. Kathi Kalu Oghad  

and Ors., (1962) 3 SCR 10 = AIR 1961 SC 1808.  This larger  

Bench was  constituted  in  order  to  re-examine  some  of  the  

propositions of law laid down by this Court in the case of M.P.  

Sharma and Ors. vs. Satish Chandra, District Magistrate,  

Delhi and Ors., (1954) SCR 1077.  After adverting to various  

factual  aspects,  the  larger  Bench  formulated  the  following  

questions for consideration:

“2. … … On these facts, the only questions of constitutional  importance  that  this  Bench  has  to  determine  are;  (1)  whether by the production of the specimen handwritings -  Exs. 27, 28, and 29 - the accused could be said to have been  'a  witness  against  himself'  within  the  meaning  of  Article  20(3) of the Constitution; and (2) whether the mere fact that  when  those  specimen  handwritings  had  been  given,  the  accused  person  was  in  police  custody  could,  by  itself,  amount to compulsion, apart from any other circumstances  which could be urged as vitiating the consent of the accused  in giving those specimen handwritings. … …        

4. … … The main question which arises for determination in  this appeal  is  whether a direction given by a Court  to an  accused person present in Court to give his specimen writing  and  signature  for  the  purpose  of  comparison  under  the  provisions of section 73 of the Indian Evidence Act infringes  the  fundamental  right  enshrined  in  Article  20(3)  of  the  Constitution.

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The following conclusion/answers are relevant:

10.  … … Furnishing evidence" in the latter sense could not  have  been  within  the  contemplation  of  the  Constitution- makers for the simple reason that - though they may have  intended to protect an accused person from the hazards of  self-incrimination,  in  the  light  of  the  English  Law on  the  subject - they could not have intended to put obstacles in  the way of efficient and effective investigation into crime and  of bringing criminals to justice. The taking of impressions or  parts of the body of an accused person very often becomes  necessary to help the investigation of a crime. It is as much  necessary  to  protect  an  accused  person  against  being  compelled to incriminate himself, as to arm the agents of law  and the law courts with legitimate powers to bring offenders  to justice. … ….

11.  … …  When an accused person is  called upon by the  Court or any other authority holding an investigation to give  his  finger  impression  or  signature  or  a  specimen  of  his  handwriting, he is not giving any testimony of the nature of a  'personal  testimony'.  The  giving  of  a  'personal  testimony'  must depend upon his volition.  He can make any kind of  statement  or  may refuse  to  make any statement.  But  his  finger impressions or his handwriting, in spite of efforts at  concealing  the  true  nature  of  it  by  dissimulation  cannot  change their  intrinsic character.  Thus, the giving of finger  impressions or of specimen writing or of signatures by an  accused  person,  though  it  may  amount  to  furnishing  evidence  in  the  larger  sense,  is  not  included  within  the  expression 'to be a witness'.

12.  …  …  A  specimen  handwriting  or  signature  or  finger  impressions  by  themselves  are  no  testimony  at  all,  being  wholly innocuous because they are unchangeable except in  rare  cases  where  the  ridges  of  the  fingers  or  the  style  of  writing have been tampered with. They are only materials for  comparison in order to lend assurance to the Court that its  inference based on other pieces of evidence is reliable. They  are neither oral nor documentary evidence but belong to the  third category of material evidence which is outside the limit  of 'testimony'.

16.  In  view of  these  considerations,  we have  come to  the  following conclusions :-  

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(1)  An  accused  person  cannot  be  said  to  have  been  compelled to be a witness against himself simply because he  made a statement while in police custody, without anything  more.  In  other  words,  the  mere  fact  of  being  in  police  custody  at  the  time  when  the  statement  in  question  was  made would not, by itself, as a proposition of law, lend itself  to the inference that the accused was compelled to make the  statement,  though  that  fact,  in  conjunction  with  other  circumstances  disclosed  in  evidence  in  a  particular  case,  would be a relevant consideration in an enquiry whether or  not  the  accused  person  had been  compelled  to  make  the  impugned statement.  

(2) The mere questioning of an accused person by a police  officer,  resulting  in  a  voluntary  statement,  which  may  ultimately turn out to be incriminatory, is not 'compulsion'.  

(3) 'To be a witness' is not equivalent to 'furnishing evidence'  in  its  widest  significance;  that  is  to  say,  as  including not  merely  making  of  oral  or  written  statements  but  also  production of documents or giving materials which may be  relevant  at  a trial  to  determine the guilt  innocence of  the  accused.  

(4) Giving thumb impressions or impressions of foot or palm  or fingers or specimen writings or showing parts of the body  by way of identification are not included in the expression 'to  be a witness'.  

(5) 'To be a witness' means imparting knowledge in respect of  relevant facts by an oral statement or a statement in writing,  made or given in Court or otherwise.  

(6) 'To be a witness' in its ordinary grammatical sense means  giving oral  testimony in Court.  Case law has gone beyond  this strict literal interpretation of the expression which may  now bear  a  wider  meaning,  namely,  bearing  testimony  in  Court  or out  of  Court  by a person accused of  an offence,  orally or in writing.  

(7) To bring the statement in question within the prohibition  of Article 20(3), the person accused must have stood in the  character  of  an accused person  at  the  time  he  made  the  statement.  It  is  not  enough  that  he  should  become  an  accused, any time after the statement has been made.”  

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In view of the above principles, the procedure adopted by the  

investigating agency, analyzed and approved by the trial Court  

and confirmed by the High Court, cannot be faulted with.  In  

view of oral report of Rolia Soren, PW 4 which was reduced  

into  writing,  the  evidence  of  PW  23,  two  letters  dated  

01.02.2002  and  02.02.2002  addressed  by  Mahendra  

Hembram (A3) to the trial Judge facing his guilt coupled with  

the other materials, we are unable to accept the argument of  

Mr.  Ratnakar  Dash,  learned  senior  counsel  for  Mahendra  

Hembram (A3) and we confirm the conclusion arrived by the  

High Court.

Additional factors-Mahendra Hembram (A3).

36)   Coming  to  the  role  of  Mahendra  Hembram  A3,  the  

prosecution very much relied on his letters dated 01.02.2002  

and 02.02.2002 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  addressed  to  the  Sessions  Judge  in  the  

course of trial  lend ample corroboration to his identification  

before the trial Court by Joseph Marandi, PW 23.  Even in his  

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case, it is true that there was no TIP conducted by Judicial  

Magistrate.  However, inasmuch as when he was facing trial,  

he sent the above-mentioned two letters to the Sessions Judge  

which lend corroboration to his identification in the trial court  

by PW 23 and rightly observed by the High Court, the same  

can be  safely  relied  upon.   The  evidence  reveals  that  Rolia  

Soren (PW 4) accompanied by PW 23 soon after the incident  

proceeded to inform the same to the police  and finding the  

police to have already left for Manoharpur, returned back and  

finally  on  the  oral  report  of  PW 4,  the  Officer  In-charge  of  

Anandapur  P.S.  (PW  52)  prepared  FIR  (Ext.  1/1)  and  

registered a case under Sections 147, 148, 435, 436 and 302  

read with 149 IPC against Dara Singh (A 1) and five others.  

The prosecution has also relied on a letter (Ext.2 after it was  

translated to English marked as Ext. 49) said to have been  

addressed by Mahendra Hembram (A3) to Kapura Tudu (PW 9)  

which, according to the prosecution, contains his admission of  

involvement in the incident.   

37)  An excerpt from the letter of Mahendra Hembram may be  

translated into English as under:-

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“You may be knowing the Manoharpur incident.  No one  ever  thought  that  such  a  thing  will  happen  in  the  village.  I had not told any of my family members that  such a work will  be done.  Dara Singh stayed in our  house and did the work.  I also did the work as I had  quarrel with the ‘Jisu’.  I had not disclosed the identity  of Dara Singh even to my mother.  The conspiracy to kill  Manoharpur ‘Jisu’ was hatched at HOROHND for which  I  took leave during training period and stayed in our  house with Dara Singh for five days and went to the  forest thereafter.  The villagers know that I have done  this work as I have got cordial relationship with Dara  Singh.”  

This  is  a  confessional  statement  of  accused  Mahendra  

Hembram (A3) inculpating himself and Dara Singh (A1).

38)   Accused  Mahendra  Hembram,  in  his  letter  dated  

10.02.1999  (Ex.  2)  addressed  to  his  sister-in-law,  Kapura  

Tudu (PW9), confessed that he along with Dara Singh burnt  

the ‘Jisu’ (Christian Missionary).  All the ocular witnesses have  

testified that after setting fire to vehicles and burning Graham  

Staines and his two sons alive, the miscreants raised slogans  

“Jai Bajrang Bali” and “Dara Singh Zindabad”.

39)   Joseph  Marandi,  PW23  has  testified  that  accused  

Mahendra Hembram amongst others set fire to the vehicles.  

Mahendra Hembram, in his statement recorded under Section  

313 Cr.P.C.,  on 04.02.2002 has stated  that  he may be the  

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short  statured  person.  Accused  Mahendra  Hembram in  his  

letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law,  

Kapura Tudu (PW9) had confessed to have burnt the Christian  

missionary along with Dara Singh.  In the course of trial, he  

filed petitions on 01.02.2002 and 02.02.2002 pleading guilty  

and  confessing  to  have  set  fire  to  the  vehicles.   In  his  

statement recorded under Section 313 Cr.P.C. on 04.02.2002,  

he has 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 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.   

40)  It is clear that the letters marked as (Ex. 213) were written  

by Mahendra Hembram though denied by him, 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 Joseph Marandi (PW23) as  

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a participant in the crime.  As rightly observed by the High  

Court,  contents  of  these  two  letters  lend  support  to  the  

evidence  in  identification before  the  trial  Court  for  the  first  

time as narrated by PW23.  In this way, his identification for  

the first time in the trial Court is an exceptional case and even  

in the absence of further corroboration by way of previously  

held TIP, his involvement in the crime is amply corroborated  

by the above said letters written by him.   

41)   Learned  Addl.  Solicitor  General  has  pointed  out  that  

insofar  as Mahendra Hembram is concerned,  three types of  

evidence are available against him: a) Confession; b) testimony  

of  eye-witnesses/identification  in  court/PW  23  Joseph  

Marandi;  and c)  absconding of  the accused.   Learned Addl.  

Solicitor  General  while  advancing  his  argument  besides  

referring to the evidence of PW 23 laid more emphasis on the  

statement of the appellant.  Though an objection was raised as  

to the manner in which the trial  Judge questioned A3 with  

reference  to  contents  of  his  letters  dated  01.02.  2002  and  

02.02.2002, it is relevant to point out that when the person  

facing trial insisted to look into the contents of his letters, the  

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presiding  officer  concerned  has  to  meet  his  requirement  

subject to the procedure established.  The learned trial Judge  

accepted the entire contents of the admission made by A3 and  

affording  reasonable  opportunity  and  by  following  the  

appropriate procedure coupled with the corroborative evidence  

of  PW 23,  upheld  his  involvement  and  participation  in  the  

crime  along  with  A1  which  resulted  in  rioting,  arson  and  

murder  of  three  persons.   Though  learned  senior  counsel  

appearing for A3 was critical on relying upon the letter Ex. 49  

said to have been written by A3 to his Sister-in-law PW 9, it  

shows that A3 confessed to have participated in the incident  

along with A1.  It is seen that the entire contents of letter were  

used by the trial Judge which was rightly accepted by the High  

Court.  The other circumstance urged by the prosecution was  

that A3 absconded soon after the incident and avoided arrest  

and this abscondence being a conduct under Section 8 of the  

Indian 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  by  the  defence  

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counsel.  We are satisfied that before accepting the contents of  

the  two letters  and the  evidence  of  PW 23,  the  trial  Judge  

afforded him required opportunity and followed the procedure  

which was rightly accepted by the High Court.  

Additional factors – Dara Singh (A1)

42) In addition to what we have highlighted and elicited from  

the materials placed, it is relevant to point out that all the eye-

witnesses  examined  by  the  prosecution  consistently  stated  

that during occurrence the miscreants raised slogans in the  

name of Dara Singh as “Dara Singh Zindabad”.  The story of  

this slogan was also mentioned in the first information report  

lodged soon after the occurrence.  This slogan is in the name  

of Dara Singh, corroborates the identification before the trial  

Court for the first time.  In addition to the same, some of the  

witnesses identified Dara Singh by photo identification.   We  

have  already  highlighted  the  evidentiary  value  of  photo  

identification and identifying the person in the dock.  In other  

words, we have pointed out that those materials coupled with  

the other corroborative evidence are permissible.  In addition  

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to the same, all the witnesses mentioned about the blowing of  

whistle by Dara Singh.   

43)  Though the trial Court awarded death sentence for Dara  

Singh, the High Court after considering entire materials and  

finding that it is not a rarest of rare case, commuted the death  

sentence into life imprisonment.  The principles with regard to  

awarding  punishment  of  death  have  been  well  settled  by  

judgments  of  this  Court  in  Bachan  Singh vs.  State  of  

Punjab AIR 1980 SC 898, Machhi Singh vs. State of Punjab  

(1983)  3  SCC  470,  Kehar  Singh vs.  State  (Delhi  

Administration) (1988) 3 SCC 609.  It is clear from the above  

decisions  that  on  conviction  under  Section  302  IPC,  the  

normal rule is to award punishment of life imprisonment and  

the punishment of death should be resorted to only for the  

rarest of rare cases.  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 something uncommon about  

the crime which renders the sentence of imprisonment for life  

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inadequate and calls for death sentence.  In the case on hand,  

though Graham Staines and his two minor sons were burnt to  

death  while  they  were  sleeping  inside  a  station  wagon  at  

Manoharpur, the intention was to teach a lesson to Graham  

Staines about his religious activities, namely, converting poor  

tribals to Christianity.  All these aspects have been correctly  

appreciated by the High Court and modified the sentence of  

death into life imprisonment with which we concur.    

44)  Though an argument was advanced that only after the  

intervention of PW 55, I.O. from CBI, several persons made a  

confessional  statement  by  applying  strong  arm  tactics  that  

were used by the investigating agency, the entire case of the  

prosecution has to be rejected, we are unable to accept the  

same for the reasons stated by the trial Court and the High  

Court.  We have ourselves in the earlier paras adverted to the  

fact  that  some  of  the  witnesses  did  not  mention  anything  

about the incident to the local police or the 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  

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by  PW  55,  though  certain  deficiencies  are  there  in  the  

investigation, the same cannot be under estimated.  Likewise,  

it was pointed out that 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.  It is true that the prosecution could have examined  

elders and avoided persons like PW 5 who was a minor on the  

date of  the incident.   We have already discussed about the  

veracity of witnesses and found that certain aspects have been  

established and accepted by the trial Court as well as the High  

Court.  

45) Finally,  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 accepted.  It is true  

that 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.   [Vide  State of Uttar Pradesh vs.  

Nandu Vishwakarma & Ors., (2009) 14 SCC 501 (Para 23),  

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Sambhaji  Hindurao  Deshmukh  &  Ors.  Vs.  State  of  

Maharashtra, (2008) 11 SCC 186 (Para 13),  Rahgunath vs.  

State  of  Haryana,  (2003)  1  SCC  398  (Para  33)  and  

Allarakha K. Mansuri vs. State of Gujarat, (2002) 3 SCC 57  

(Paras 6 & 7)].  In the earlier paragraphs, we have highlighted  

the weakness and infirmities of the prosecution case insofar as  

acquitted accused who are all poor tribals.  In the absence of  

definite  assertion  from  the  prosecution  side,  about  their  

specific role and involvement, as rightly observed by the High  

Court, it is not safe to convict them.  We entirely agree with  

the reasoning and conclusion of the High Court insofar as the  

order relating to acquittal of certain accused persons.   

Conclusion

46) In  a  country  like  ours  where  discrimination  on  the  

ground of caste or religion is a taboo, taking lives of 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  which  the  founding  

fathers  of  our  Constitution  dreamt  of.   Our  concept  of  

secularism is that the State will have no religion.  The State  

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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.     

47) The then President of India, Shri K R. Narayanan once  

said in his address that “Indian unity was based on a tradition  

of tolerance, which is at once a pragmatic concept for living  

together  and  a  philosophical  concept  of  finding  truth  and  

goodness in every religion“.  We also conclude with the hope  

that  Mahatma Gandhi’s  vision  of  religion  playing  a  positive  

role  in  bringing India’s  numerous religion and communities  

into  an integrated  prosperous  nation  be  realised  by  way of  

equal respect for all religions. It is undisputed that there is no  

justification for interfering in someone’s belief by way of ‘use of  

force’,  provocation,  conversion,  incitement  or  upon a flawed  

premise that one religion is better than the other.   

48) The analysis of  entire  materials  clearly shows that the  

High Court is right in arriving at its conclusion.  In the case on  

hand, there is no material to prove conspiracy charge against  

any  of  the  accused.   However,  as  pointed  out  by  the  High  

Court which we also adverted to in the earlier paras even in  

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the  midst  of  uncertainties,  the  witnesses have specified the  

role  of  (A1)  and (A3)  which we agree  with  and confirm the  

same and we  also  maintain  the  conviction of  the  appellant  

Dara Singh (A1), Mahendra Hembram (A3) and the sentence of  

life imprisonment imposed on them.  In the same way, in the  

absence  of  acceptable  materials  and  in  view  of  the  various  

infirmities in the prosecution case as pointed out by the High  

Court, we confirm the order of acquittal of others who are all  

poor tribals.   

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49) In the result, Criminal Appeal No. 1366 of 2005 filed by  

Rabindra Kumar Pal @ Dara Singh, Criminal Appeal No. 1259  

of  2007  filed  by  Mahendra  Hembram  and  Criminal  Appeal  

Nos. 1357-1365 filed by CBI are dismissed.   

...…………………………………J.  (P. SATHASIVAM)  

....…………………………………J.   (DR. B.S. CHAUHAN)

NEW DELHI; JANUARY 21, 2011

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