'RS' and 'TH' and PW-34 who recorded the confessional statement of 'MM' v. REPUBLIC OF INDIA · 937 these persons were produced nor about & Ors.

4.2 The analysis of evidence of Judicial Magistrates - PW-29 who recorded the confessional statement of 'RS' and 'TH' and PW-34 who recorded the confessional statement of 'MM', 'UK' and 'DP', shows that many of the confessional statements were recorded immediately after production of the maker after long CBI custody and in some cases after such statements were made and F recorded by the Judicial Magistrate, the maker was remanded to police custody. Though the Magistrates have deposed that the procedure provided under Section 164 Cr.P.C. has been complied with, various warnings/ cautions required to be given to the accused before ·G . recording such confession, have not been fully adhered to by them. The High Court strongly observed about the procedural lapse on the part of PWs-29 and 34. Their statements and requirements in terms of Section 164 . Cr.P.C. are verified. In the certificate, there is no specific H reference about the nature of the custody from which )I • RABINDRA KUMAR PAL @ DARA SINGH v. REPUBLIC OF INDIA · 937 these persons were produced nor about the assurance A that they would not be remanded to police custody if they declined. Section 164 Cr~P.C. requires strict and faithful compliance of sub-sections 2 to 4, the failure to observe safeguards not only impairs evidentiary value of confession but cast a doubt on nature and voluntariness B of confession on which no reliance can be placed. No exceptional circumstances could be brought to the notice by the prosecution in respect of the appellants other than A-1 and A-3. [Paras 32 and 33] [983-H; 984-A- H] C

4.3 Under sub-section (3) of Section 164 Cr.P.C., if any accused refuses_ to make any confessional statement, such Magistrate shall not authorize detention of the accused in police custody. Remanding 'RS' to police custody after his statement was recorded under D Section 164 Cr.P.C. is not justified. The High Court rightly observed that the possibility of coercion, threat or inducement to the accused 'RS' to make the confession cannot be ruled out. In the same manner, confession of accused 'TH' was also recorded by the very same E Magistrate. The High Court pointed out that he was not cautioned that if he made any confession, same may be used against him in evidence and on that basis he may be sentenced to death or imprisonment for life; and that if he refused to make the confessional statement, he F would not be remanded to police custody. Both of these accused, in their confessional statements, made exculpatory statements. PW-34, Judicial Magistrate, recorded the confessional statement of accused 'MM' immediately after his production before him from the G police custody. It was noted that he was given only 10 minutes' time for reflection after his production from police custody. The other accused who made the confessional statement is 'DP! whose statement was recorded by PW-34~ The High Court, on corroboration of H • .,,, 938 . SUPREME COURT REPORTS [2011] 1 S.C.R. A the confessional statement, had found that the entire confessional statement is exculpatory and he also retracted from the confession. It was further found that this confessional statement was made long after the charge-sheet was filed. [Paras 31 and 32] [983-D-H; 984- B A-C]

#5. The procedure adopted by the investigating agency with regard to taking of the signature/writings of A-3 or examination by the expert was analyzed and c approved by the trial court and confirmed by the High Court, and cannot be faulted with. In view of oral report of PW-4 which was reduced into writing, the evidence of PW-23, two letters dated 01.02.2002 and 02.02.2002 addressed by A-3 to the trial judge facing his guilt coupled with the other materials, the submission that there is deficiency in the prosecution case insofar as A- 3, cannot be accepted and the conclusion arrived by the High Court is confirmed. [Para 35] [989-B-C] D The State of Bombay vs. ·Kathi Kalu Oghad and Ors. E (1962) 3 SCR 10; M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. (1954) SCR 1077 - relied on. F G

6.1 With regard to the role of A-3, the prosecution very much relied on the letters by A-3 addressed to the Sessions Judge wherein he confessed his guilt. Though a serious objection was taken about the admissibility of these two letters, the contents of these two letters in the course of trial lend ample corroboration to his identification before the trial court by PW-23 and the same could be safely relied upon. Even in his case, it is true that there was no TIP conducted by Judicial Magistrate. [Para 36] [989-E-F]

6.2 The prosecution also relied on a letter said to H have been addressed by A-3 to PW-9, his sister-in-law. .\ ..I,_ y ~ • RABINDRA KUMAR PAL @ DARA SINGH v. REPUBLIC OF INDIA c 939 1-- ).. 1 The said letter is a confessional statement of accused A- A 3 inculpating himself and A-1. A-3 in said letter confessed that he along with A-1 burnt the 'Jisu' (Christian Missionary). All the ocular witnesses have testified that after setting fire to vehicles and burning 'GS' and his two sons alive, the miscreants. raised slogans "Jai Baj rang B Bali" and "Dara Singh Zindabad". The entire contents of letter were used by the trial judge which was rightly accepted by the High Court. [Paras 38 and 41) [990-F-G; 992-D]

6.3 A-3 in his statement recorded under Section 313 C Cr.P.C. on 04.02.2002, admitted to have set fire to the vehicles and in his statement recorded under Section 313 Cr.P.C. on 24.03.2003 has admitted to have filed petitions pleading guilty and to have stated in his earlier examination under Section 313 Cr.P.C. that he had set fire D to the vehicles. There is no impediment in relying on a portion of the statement of the accused and finding him guilty in consideration of the other evidence against him as laid by the prosecution. [Para 39) [991-8-C) E

6.4 It is clear that A-3 though denied the letters written by him, the contents of the said two letters amount to confession, or in any event admission of important incriminating materials. He had been identified before the trial court by PW-23 as a participant in the crime. The High F Court rightly observed that the contents of the two letters lend support to the evidence in identification before the trial court for the first time as narrated by PW-23. In this way, his identification for the first time in the trial court is an exceptional case and even in the absence of further G corroboration by way of previously held TIP, his involvement in the crime is amply corroborated by the said letters written by him. [Para 40] [991-D-F]

6.5 Though an objection was raised as to the manner H • 0 940 SUPREME COURT REPORTS [2011) 1 S.C.R. A B in which the trial judge questioned A-3 with reference to contents of his letters dated 01.02. 2002 and 02.02.2002, addressed to the Sessions Judge wherein he confessed his guilt, it is relevant to point out that when the person facing trial insisted to look into the contents of his letter&, the presiding officer concerned has to meet his requirement subject to the procedure established. The trial judge accepted the entire contents of the admission made by A-3 and affording reasonable opportunity and by following the appropriate procedure coupled with the c corroborative evidence of PW-23, upheld his involvement and participation in the crime along with A-1 which resulted in rioting, arson and murder of three persons. Also A-3 absconded soon after the incident and avoided arrest and this abscondence being a conduct under Section 8 of the Evidence Act, 1872 should be taken into consideration along with other evidence to prove his guilt. The fact remains that he was not available for quite sometime till he was arrested which fact has not been disputed. Before accepting the contents of the two letters and the evidence of PW-23, the trial Judge afforded him E required opportunity and followed the procedure which was rightly accepted by the High Court. [Para 41) [992- A-F] 0 F

7.1 Though several inconsistencies were noticed in the prosecution evidence and the accused persons were not specifically identified except A-1 and A-3, the fact remains that the Van in which 'GS' and his two children were sleeping were set on fire and burnt to death due to the cause of the miscreants. The death of these three G persons by setting fire by the miscreants cannot be ruled out. There is no material to conclude that the fire emanated from inside of the vehicle and then spread to rest of the vehicle after the fuel tank caught fire. There is no basis for such conclusion though the prosecution. RABINDRA KUJMAR PAL @ DARA SINGH v. R~PUBLIC OF INDIA ' 941 witnesses could not pin-point and identify the role of A each accused. [P~ra 34] [985-C-E] " 7 .2 All the : eye,.witnesses examined by the prosecution conststently stated that during occurrence the miscreants rai ed slogans in the name of A-1 as "Dara Singh Zindabad' . The story of this slogan was also ~entioned i. n the1 first information report lodged soon after the occurref'lce. This slogan is in the name of A-1, ,,.. borroborates the itlentification before the trial court for the first time. In addi~ion to the same, some of the witnesses identified A-1 by photo identification. In addition to the C same, all the witnesses mentioned about the blowing of whistle by A-1. [Para 42] [992-G-H; 993-A-C] 8 - ' i •

#8. The submission that only :after the intervention of PW-55, 1.0. from CBI, seve 1ral persons made a D confessional statement· by applying strong arm tactics that were used by the investigating agency, the entire case of the prosecution has to be rejected, cannot be accepted. Some of the witnesses did not mention anything about the incident to the local police or· the E District Magistrate or the higher level police officers who were camping from the next day of the incident. However, regarding the fresh steps taken by the Officer of the CBI, particularly, the efforts made by PW-55, though there are certain deficiencies in the investigation, the same cannot F be under estimated. The young children were being coerced into being witness to the occurrence whereas the elder family members were never joined as witness by the prosecuting agency. The prosecution could have examined elders and avoided persons like PW-5 who was a minor on the date of the incident. [Para 44] [993-H; 994- G A-E]

#9. 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 H I 942 SUPREME COURT REPORTS • [2011] 1 S.C.R. " j._ t A rarest of rare casei. Whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was s something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. However, more than 12 years has elapsed since the act was committed, the life sentence awarded by the High Court need not be enhanced in view c of the factual position. [Para 43) [993-E-G]