Full Judgement
Rabindra Kumar Pal @ Dara Singh Vs Republic of India
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.
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 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 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 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 19.05.2005concluding 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 2007respectively and against the acquittal of rest of the accused, CBI filed Criminal Appeal Nos. 1357-65 of 2005 before this Court.
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.
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.
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.
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 Section164 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 inculcator 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.
ix. The reasons given by the High Court in acquitting 11persons 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 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 on05.06.1999. 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 la this going towards the church. She stated that in the midnight, on hearing barking of dogs, she woke up from sleep and came out of the house. She found about 60 persons going towards the church where the vehicles of Graham Staineswere 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 "JaiBajarang 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 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) woke him up. He heard the sound of beating of the vehicles parked in front of the church. He along with Nimai Hansdawent 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 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 withal this and torches going towards the church. After walking about 100 ft. towards the vehicles, he found a large number of people delivering la this 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 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 charge sheeted. 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 SinghZindabad".
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 on03.02.1999 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 mother woke him up. He saw something was burning near the church and found a vehicle moving towards the road. Ojenand Chenchu of his village carrying torch and la this 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 on23.01.1999, by the CID on 11.02.1999 and by the CBI on20.04.1999. 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 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 la this.
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 witnesss tated that there were about 30-40 people armed with la this and holding torches. They raised slogan `Jai Bajarang Bali' and `Dara Singh Zindabad. The fire was extinguished at 3a.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 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 Manoharpu r(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 on20.01.1999 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 la this. 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 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 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 la this. Those miscreants were holding la this, 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 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. On22.01.1999 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 la this 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 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 the church, where there was a gathering of 60-70 persons 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 village. His statement was not recorded by the local police but recorded by the CID on 03.02.1999 and by the CBI on30.05.1999. 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 1999after Makar Sankranti.
He came there with his two sons and other persons in two vehicles. In the third night of his stay, healong 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, 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 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. 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 eyewitnesses 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 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 ins of ar 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 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 PW2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78went to Kolkata to get the identification done by picking up 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 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"
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 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 found40/50 persons were beating with la this. 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 52mentioned different versions.
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. PW11 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.
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 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 32had 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 200ft. PW 6 has mentioned that Church was visible from the place of Nagin dance and distance was 200 ft and finally PW32 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. PW32 has stated that vehicles were visible from the place of Nagindance, PW 36 has stated Nagin dance staged 10-12 houses apart from Church at front side whereas PW 39 has stated Nagin dance staged 4 houses apart from Chruch and PW 43has 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, PW11 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 be rejected in to. 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 to 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. 14was 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 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: " 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 41 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 Section164 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 7days i.e. from 20.05.1999. It is their claim that on18.05.1999, Accused No.9 made a statement under Section164 Cr.P.C. and thereafter remanded back to police custody. It was also pointed out that in his statement under Section313 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, on08.07.1999, Accused No. 11 made a statement under Section164 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 from19.05.1999 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.Cand thereafter remanded back to police custody. It waspointed out that he also stated in his statement under Section313 Cr.P.C. that he was beaten by the investigating agency. (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 Section164 Cr.P.C. and he refused to make a statement. However, on31.08.1999, he made a confessional statement.(e) In the case of Dayanidhi Patra, Accused No. 14, on21.09.1999, he was arrested by the Investigating Agency. On24.09.1999, 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.
