{"id":127764,"date":"2005-09-30T00:00:00","date_gmt":"2005-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sidharth-etc-etc-vs-state-of-bihar-on-30-september-2005"},"modified":"2015-04-21T20:22:59","modified_gmt":"2015-04-21T14:52:59","slug":"sidharth-etc-etc-vs-state-of-bihar-on-30-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sidharth-etc-etc-vs-state-of-bihar-on-30-september-2005","title":{"rendered":"Sidharth, Etc. Etc vs State Of Bihar on 30 September, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sidharth, Etc. Etc vs State Of Bihar on 30 September, 2005<\/div>\n
Author: K Balakrishnan<\/div>\n
Bench: K.G. Balakrishnan, B.N. Srikrishna<\/div>\n
           CASE NO.:\nAppeal (crl.)  688 of 2003\n\nPETITIONER:\nSidharth,  etc.  etc.\t\t\t\t\t\t\n\nRESPONDENT:\nState of Bihar\t\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 30\/09\/2005\n\nBENCH:\nK.G. Balakrishnan & B.N. Srikrishna\n\nJUDGMENT:\n<\/pre>\n
J  U D G M E N T
\nWith
\nCRIMINAL APPEAL NOS. 689 OF 2003 AND 736 OF 2003<\/p>\n
K.G. BALAKRISHNAN, J.\n<\/p>\n
All  the three appellants were found guilty by the Sessions Court
\nfor various offences.     Appellant Arnit Das was found guilty of the
\noffence under Section 27 of the Arms Act as also for the offence under
\nSection 302 read with Section 120B IPC and sentenced to death.
\nAppellant Sidharth   was convicted for the offence under Section 302
\nread with Section 34 and Section 120B IPC and appellant Rohan
\nPrakash was convicted for the offence under Section 302 read with
\nSection 120B IPC.  The two appellants who were sentenced to undergo
\nimprisonment  for life,  filed  separate appeals before the High Court of
\nPatna and their conviction on all counts was confirmed.   In the appeal
\npreferred by Arnit Das, his conviction was confirmed but the sentence
\nof death imposed on him was commuted to life imprisonment.\n<\/p>\n
\tAll these appellants were tried by the Sessions Court alleging
\nthat they entered into a conspiracy on 4.9.1998 to do away with  one
\nAbhishek.   Deceased Abhishek, along with appellant Rohan Prakash,
\nand two others, namely, Shweta and Anvesh, used to attend tuition
\nclasses at the residence of Prof. J.C. Banerjee from 5.00 p.m. to 6.00
\np.m. and again from 7.00 p.m. to 8.00 p.m.  Another student by
\nname, Pallavi, used to get tuition from Prof. J.C. Banerjee from 6.00
\np.m. to 7.00 p.m.    Appellant Sidharth told appellant Arnit Das that
\nappellant Rohan Prakash was in love with Pallavi but she was not
\nresponding and instead she had expressed her love towards deceased
\nAbhishek and, therefore, he is to be killed.  According to the
\nprosecution, appellant Sidharth told appellant Arnit Das that all
\narrangements had been  made to kill Abhishek and if appellant Arnit
\nDas kills him, he would be introduced to veteran criminals,  including
\none Suraj Bhan.     Appellant Sidharth gave the description of
\ndeceased Abhishek to appellant Arnit Das and on 4.9.1998, he
\npromised to provide a firearm to appellant Arnit Das.    On 5.9.1998 at
\nabout 5.00 p.m, appellant Arnit Das came to the room of appellant
\nSidharth where the latter provided him with a double barrel country-
\nmade pistol, and loaded two cartridges in the pistol in his presence.
\nTwo extra cartridges were also given.    Appellant Arnit Das was
\ndirected to go to the house of Prof. J.C. Banerjee and request the
\ndeceased, Abhishek to come out of the tuition class.  He was told that
\nappellant Rohan Prakash would help him to identify Abhishek.    As
\npart of the conspiracy thus hatched by these three appellants, at about
\n7.15 p.m. on 5.9.1998, appellant Arnit Das went to the house of Prof.
\nJ.C. Banerjee.     His wife Rekha Banerjee was in an adjoining room
\nand   appellant Arnit Das told her that he wanted to meet Abhishek.
\nAbhishek came out of the tuition class followed by appellant Rohan
\nPrakash.  The further case of the prosecution is that appellant Arnit
\nDas took Abhishek ten to twelve steps away from the gate of the
\nhouse of Prof. Banerjee, caught hold of him and fired a shot at him
\nfrom a close range.  Appellant Arnit Das fired one more shot, but it did
\nnot hit the deceased.   Appellant Rohan Prakash, who had, in the
\nmeanwhile returned inside Prof. Banjeree’s house,  wanted to go to
\nthe gate, but on hearing the shot, Mrs. Rekha Banerjee  caught hold of
\nhis hand and advised him not to go out as she had heard the sound of
\nfiring of a shot.  But appellant Rohan Prakash came out of the house
\nand saw Abhishek lying on the ground with bleeding injury.  He saw
\nthe assailant making good his escape on a bicycle.  It is pertinent to
\nnote here that the prosecution case was that though appellant Rohan
\nPrakash was one of the abettors   in this murder, he pretended to be
\nignorant and after the incident, to mislead the police, he himself gave
\nthe F.I .Statement.  Appellant Rohan Prakash   looked at injured,
\nAbhishek, and took him to the hospital in the car  which incidentally
\nbelonged to  Dr. Neel Kamal,  father of Pallavi.     Abhishek,  was
\ntaken to Shahi Clinic where he underwent a surgery but  died on the
\nnext day.  Appellant Rohan Prakash stated in the FI Statement that
\ndeceased Abhishek was being threatened  by some students of the
\ncollege and this had caused some tension to him.\n<\/p>\n
\tBased on the First Information Report given by appellant Rohan
\nPrakash, a case was registered, the inquest report prepared and the
\n‘Fardebeyan’ recorded.    The police could not get any clue regarding
\nthe murder and they suspected the involvement of appellant Arnit Das.
\nOn 13.9.1998, PW 21, the Investigating Officer raided the house of
\nappellant Arnit Das.  On interrogation by the police, appellant Arnit
\nDas made a clean breast of the entire incident to the police.   He
\nshowed the wearing apparels worn by him at the time of the incident
\nand the cycle he had used to escape from the scene of occurrence.
\nThe pants, shirt and the cycle were taken into custody.  Appellant Arnit
\nDas was arrested and he was produced before the Chief Judicial
\nMagistrate on the next day.  PW 21, the Investigating Officer gave an
\napplication before the Chief Judicial Magistrate stating that appellant
\nArnit Das wanted to make a confession before the Magistrate.   The
\nChief Judicial Magistrate directed PW7 Deepak Kumar Singh, the
\nJudicial Magistrate to record the confession of  appellant Arnit Das.
\nPW-7 recorded the statement and on the basis of the information
\nfurnished by appellant Arnit Das,   the  other appellants were  arrested
\nand after completion of the Investigation,  the final report was filed
\nbefore the court.\n<\/p>\n
\tBefore the Sessions Court, 21 witnesses were examined.  The
\nmain evidence relied on by the prosecution was the confession made
\nby appellant Arnit Das before PW 7 Judicial Magistrate, as also his
\nextra-judicial confession made to PW 8 Arko Pratim Bannerjee.  The
\nprosecution also relied on the F.I. Statement given by appellant Rohan
\nPrakash to show his involvement in the conspiracy and the attempt
\nmade by him to mislead the police and to prevent the police from
\ntracing out the real culprits.  To prove the motive, the prosecution
\nrelied on the evidence of some of the prosecution witnesses, mainly
\nthe evidence of the father of the deceased, Dr. Ajit Singh, and the
\nevidence of one hostile witness.\n<\/p>\n
\tAppellant  Sidharth  had set up a plea of alibi and stated that at
\nthe relevant point of time, he was receiving tuition from DW 2 Mohan
\nPrasad and examined witnesses  to prove the alibi.  Appellant Rohan
\nPrakash completely denied any part in the conspiracy and alleged that
\nhe was falsely implicated by the father of the deceased.   Though
\nappellant Arnit Das  had given a statement at the time of questioning
\nunder Section 313 Cr.PC that he had not made any confession before
\nthe Magistrate, he filed an application stating that he was severely
\ntortured by the police  and was taken to the Magistrate for his
\nconfession, and alleged that the police had prepared the confession.
\nThe Sessions Court accepted the prosecution version and convicted the
\nappellants accordingly.\n<\/p>\n
It may be noticed at this juncture that appellant Arnit Das when
\nproduced before the Chief Judicial Magistrate stated that he was below
\n16 years of age; therefore, he was entitled to the benefit of the
\nJuvenile Justice Act, 1986.    As per Section 2(h) of the Juvenile Justice
\nAct, 1986,   ‘Juvenile’ is defined  as “a person who has not attained the
\nage of 16 years.”   According to appellant Arnit Das,  he had not
\nattained the age of 16 years as on the date of occurrence.  This
\nquestion was considered by the Juvenile Court and appellant Arnit Das
\ngave oral and documentary evidence before the Juvenile Court.  The
\nJuvenile Court came to the conclusion that appellant Arnit Das was
\nabove 16 years of age as on the date of the occurrence and therefore
\nnot entitled to the benefit of the Juvenile Justice Act, 1986.
\nAppellant Arnit Das preferred an appeal against the order passed by
\nthe Juvenile Court before the Sessions Judge, Patna.  The Sessions
\nJudge, Patna dismissed the appeal and the appellant thereafter filed  a
\nCriminal Revision before the High Court of Patna.  The High Court  held
\nthat the appellant was  above  16  years  of  age as on the date of
\noccurrence, i.e.,  on 5.9.1998, and therefore  not entitled to invoke the
\nprovisions of  Juvenile Justice Act, 1986.  The appellant thereafter
\npreferred  a Special Leave to Appeal (Criminal) No. 729 of 2000
\n(Criminal Appeal no. 496 of 2000)  which was considered and this
\nCourt came to the following finding:-\n<\/p>\n
\t“So far as the finding regarding the age of the appellant is
\nconcerned, it is based on appreciation of evidence arrived
\nat after taking into consideration of the material available
\non record and valid reasons have been assigned for it.  The
\nfinding arrived by the learned A.C.J.M. has been
\nmaintained by the Sessions Court in Appeal and the High
\nCourt in Revision.  We find no case having been made  out
\nfor interfering therewith. ”\n<\/p>\n
The appellant thereafter filed a Review Petition and it was
\ncontended that the finding of the two Judge Bench of this Court was in
\nconflict with the view taken by this Court in Umesh Chandra Vs.
\nState of Rajasthan 1982(2) SCC  202 wherein it was held that the
\nrelevant date for consideration of the age to determine the
\napplicability of the Juvenile Justice Act is the date of occurrence and
\nthis view was in conflict with the earlier decision where the crucial date
\nfor determining the question whether the accused was a juvenile or
\nnot was the date on which he was brought before the competent
\nauthority.  In view of this conflict of opinion, the matter was referred
\nto a bench of five judges and the bench dismissed the review petition
\nfiled by appellant Arnit Das.\n<\/p>\n
\tDespite these findings entered into by the Court against the
\nappellant regarding the applicability of the Juvenile Justice Act, 1986,
\nthe learned Counsel for the appellant contended that the appellant is
\nentitled to the benefit of the Juvenile Justice (Court  & Protection of
\nChildren) Act, 2000 (hereinafter being referred to as “Juvenile Justice
\nAct, 2000”) which came into force on 30th December, 2000.  The
\nlearned Senior Counsel Shri Sanyal made a fervent plea before us that
\nthe appellant was a “juvenile”  as per the definition of Juvenile Justice
\nAct, 2000 and thus entitled to the benevolent provisions of Section 20
\nof that Act.  It was contended that no sentence of imprisonment for
\nlife could have been passed against this appellant.  Learned Counsel
\nfor the State, on the other hand,  pointed out that appellant Arnit Das
\nis not entitled to the benefit of the Juvenile Justice Act, 2000 as he had
\nalready completed 16 years as on the commencement of the Act.  So
\nhe could not be held to be a “Juvenile” within the meaning of Section
\n2(k) of the Juvenile Justice Act, 2000.\n<\/p>\n
\tThe learned Counsel for this appellant urged before us that the
\ndocuments produced by the appellant before the Juvenile Court were
\nnot properly considered and there was a serious error in the finding of
\nthe Chief Judicial Magistrate regarding the determination of the age of
\nthis appellant.  Appellant Arnit Das challenged the finding of the Chief
\nJudicial Magistrate,  but he could not succeed and at this stage the
\nappellant cannot challenge that finding as the decision has become
\nconclusive and final and the Juvenile Justice Act 2000 also cannot be
\napplied as he would not be a “juvenile” as defined under that Act.\n<\/p>\n
\tAs noticed earlier, the main evidence adduced by the prosecution
\nis the confession made by  appellant Arnit Das before PW 7 Judicial
\nMagistrate as also the extra-judicial confession made by him before
\nPW 8 Arko Pratim Bannerjee.  The question before us is whether the
\nconfession made by appellant Arnit Das could be made use of  against
\nthe other two appellants  as a substantive evidence and what is the
\nevidentiary value of that confession  in view of Section 30 of the
\nEvidence Act.  The learned Counsel appearing for the State of Bihar
\nsubmitted that the confession made by appellant Arnit Das, to a great
\nextent,  was admissible under Sections 10 and 30  of the Evidence Act.
\nIt was argued that there was a  prima facie evidence of conspiracy
\nagainst all the appellants, and as appellants Sidharth and Rohan
\nPrakash were participants in this conspiracy,  the confession made by
\nappellant Arnit Das could be made use of against the other two
\nappellants as well.\n<\/p>\n
Before going into this question, it is to be considered whether
\nthe confession made by  appellant Arnit Das is genuine and voluntary
\nor whether it was caused by any inducement, threat or promise.  The
\nlearned counsel for the appellants strongly urged before us that the
\njudicial confession made by  appellant Arnit Das is tainted with so
\nmany legal infirmities.  Firstly, it was contended  that the confession
\nhas already been retracted by appellant Arnit Das; therefore, it is not
\nadmissible.  It was argued that  appellant Arnit Das was severely
\nbeaten up and the  alleged confession is not voluntary in nature and
\nthat the police extracted the confession and got it prepared  with the
\nconnivance of the Magistrate.  The learned Counsel for the appellants
\ncontended that the learned Magistrate failed to comply with the
\nmandatory guidelines issued by the High Court of Patna for recording
\nthe confession statement under Section 164 Cr. PC.  It was argued
\nthat the Magistrate failed to give sufficient time for reflection and the
\naccused was produced virtually from the police custody and he had
\nbeen under the supervening influence of the police and was not having
\nfree mind to give any statement before the Magistrate.  In view of the
\nserious contentions raised by learned Counsel  for the appellants
\nagainst this judicial confession, we have considered these items of
\nevidence with meticulous detail and given our thoughtful consideration
\nas to whether the confession made by appellant Arnit Das is vitiated
\nby any legal infirmities.\n<\/p>\n
\tThe  confession  of  the  accused  Arnit  Das  was  recorded  by
\nPW 7.  PW 7 complied with all the requisite formalities contemplated
\nunder Section 164 of the Code of Criminal Procedure.  The accused
\nwhen produced before PW 7 had no complaint that he was tortured by
\nthe police.  When he was produced before the Chief Judicial Magistrate
\nfor the purpose of remand, then also he had no complaint of any
\ntorture by the police.  PW 7 put series of questions to accused Arnit
\nDas to find out whether he was making a voluntary confession.
\nLearned Counsel for the appellant contended that the Magistrate had
\nnot put any questions to find out the mental condition of the accused.
\nThis plea is not correct as the Magistrate had specifically ascertained
\nfrom the appellant  whether he was making a voluntary statement.
\nAppellant,  Arnit Das was told by the Magistrate that he was not bound
\nto make any statement and that in case he makes a statement, it
\nwould be used against him.  PW 7 had recorded in the proceedings
\npaper that two hours’ time was given to accused Arnit Das for
\nreflection.  The learned Counsel for the appellant contended that it is
\nincorrect and that  the accused was not given any  time for reflection
\nand  straightaway produced before the Magistrate to give the
\nstatement.  The defence  had adduced some evidence to show that the
\nentry made in the register of the remand home would prove that the
\naccused was not given enough time for reflection for making  the
\nconfession before the Magistrate.  This evidence of PW7,  PW8 and
\nPW9 was discussed in detail by the Sessions Court and it was found
\nthat the entries were not genuine and contained interpolations and the
\nevidence of these witnesses was not sufficient to prove that the
\nMagistrate had not given two hours time before the accused made the
\nconfession.\n<\/p>\n
\tThe learned Counsel for the appellant  contended that even if
\ntwo hours time was given to the accused it was not sufficient.  He
\nfurther contended that  this Court in Sarwan Singh Rattan Singh Vs.
\nState of Punjab AIR 1957 SC 637  had observed  that accused
\nperson  should at least be given 24 hours time to decide whether or
\nnot he should make a confession.  It may be noted that in the very
\nsame judgment it was stated that it would naturally be difficult to lay
\ndown any hard and fast rule as to the time which should be allowed to
\nan accused person in any given case before recording his confession
\nunder Section 164 Cr.P.C.\n<\/p>\n
\tIt is true that accused Arnit Das had retracted the confession
\nmade by him before PW7.  At one stage, he made a statement that he
\nhad not given any confession at all before the Magistrate and it was all
\ncooked up by the police to support the prosecution.  The confession
\nmade by accused Arnit Das is a detailed confession giving out so many
\nfacts connecting him with accused Sidharth and Rohan Prakash.  He
\nhas divulged all details regarding the conspiracy and the way in which
\nthe murder had taken place.  The very nature of the confession given
\nby accused Arnit Das would show that it was voluntary in nature and
\nwas not at the instance of the police.  In the confessional statement,
\nhe stated that accused Sidharth,  himself and Rohan Prakash were
\ngood friends and Rohan Prakash and Sidharth were boys  of rowdy
\ncharacter and  that accused Sidharth used to visit his house with
\ncountry-made pistol and other fire arms.  On 1.9.1998, accused
\nSidharth asked him to assault Abhishek, the deceased,  but he refused
\nto do so and on 4.9.1998, at about 5.00 p.m., he went to the house of
\naccused Sidharth.  Accused Rohan Prakash and  Lakshman, the
\nservant of accused Sidharth were present and they all gathered in a
\nroom on the ground floor of the house of accused Sidharth,  and on
\nthat day, accused Sidharth told him that Rohan Prakash was in love
\nwith a girl named Pallavi,  but Pallavi liked Abhishek, the deceased,
\nand therefore, Abhishek is to be killed.  Accused Arnit Das was told
\nthat he should kill Abhishek and  that all settings had been done to kill
\nhim.  He was further told that if he killed  Abhishek, he would get him
\nacquainted with veteran criminals, including one Suraj Bhan.  Accused
\nArnit Das  spent about  two to three hours in that room and  he was
\ninstructed to go to the residence of Prof. J.C. Banerjee at 7.00 p.m. on
\n5.9.1998 as Abhishek would be getting tuitions  there.   Accused Arnit
\nDas was further told to    call him  out  of the class and  shoot him.
\nOn 5.9.1998, accused Sidharth gave him a two bore country-made
\npistol loaded with two cartridges and two extra cartridges were also
\ngiven.  Accused Arnit Das kept the country-made pistol in the right
\nside pocket of his jeans and covered the same by his T-Shirt.  Accused
\nArnit Das left the house of Sidharth at about 6.00 p.m. on 5.9.1998
\nand reached the gate of  the house of Prof. J.C. Banerjee at about 6.30
\np.m.  The house was shown to him by accused Sidharth.  Deceased
\nAbhishek had  come to the house of Prof. J.C. Banerjee alongwith
\nanother boy.  The wife of Prof. J.C. Banerjee was sitting in the
\nverandah.  Accused Arnit Das in his confession further stated that he
\nwas in two minds as to whether he should kill Abhishek or not.   At
\nthat time, accused Sidharth came to him and told him that the boy
\nwho had come alongwith deceased Abhishek had returned and that he
\nshould now go, call Abhishek out and kill him.  He was warned that  if
\nhe did not kill him,  he (Arnit) would be killed.  Accused Arnit Das went
\nto the house of Prof. J.C. Banerjee and asked Mrs. Banerjee about
\nAbhishek.  Deceased Abhishek and accused Rohan Prakash came out
\nand accused Rohan Prakash pointed  towards Abhishek.   Accused
\nArnit Das then  told Abhishek to come out for a minute as accused
\nSidharth was calling him.  When Abhishek came out, he took him 10 to
\n12 steps away from the gate on the pretext of meeting Sidharth and
\ntold him that he was having affairs with girls of Science College and
\nspoiling their career,  and saying so,  he caught hold of Abhishek but
\nAbhishek managed to   get himself released by a quick jerk and caught
\nhold of the  left hand of accused Arnit Das.   However,  using the right
\nhand, accused Arnit Das took out a country-made pistol from his
\npocket and shot at him.    As Abhishek tried to run from there,  Arnit
\nDas   fired a second shot but it did not hit him.   Abhishek fell down
\nand accused Arnit Das ran towards his bicycle with the pistol and the
\nremaining cartridges and saw Sidharth standing at a distance.  He
\nheard accused Rohan Prakash shouting there.    He stated that after
\nthe incident  he was very much afraid.  At about quarter past eight on
\nthat day,  Sidharth came to his house and told him that he had done
\nthe job well.  On the next day,  Lakshman came to his house and  told
\nthat Sidharth ‘bhaiyya’ had asked him to go out of Patna, but he
\ndeclined to do so  on the ground that the school was scheduled to re-
\nopen on 14.9.1998.  Lakshman also told that if accused Sidharth was
\nimplicated, accused Arnit would be shot.  Arnit Das gave the country-
\nmade pistol and two cartridges to Lakshman.  At that time, his friend
\nArko Pratim Banerjee was also present.  Taking the country-made
\npistol and cartridges Lakshman went away.  On 13.9.1998, accused
\nArnit Das was picked up by the police for interrogation and  he
\ndisclosed the entire facts to police.\n<\/p>\n
\tThe genuineness of the confession is to be decided on the basis
\nof the extensive evidence, which lends corroboration to the confession.
\nIn the case of confession made by accused Arnit Das,  it is amply
\ncorroborated by the following material evidence.\n<\/p>\n
1.  The fact that deceased Abhishek died of  a firearm
\ninjury is proved by the satisfactory evidence given by PW 3
\nDr. Arvind Kr. Singh,  who conducted the post-mortem
\nexamination.  He deposed that there was a firearm injury
\non the body of deceased Abhishek and  that he must have
\nbeen shot at  from a close range, as there was blackening
\nand charring of the wound.  The medical evidence is in
\nconsonance with the confession made by accused Arnit
\nDas.  The accused was arrested on 13.9.1998 and on the
\nvery same day, the cycle  used  and the clothes allegedly
\nworn by him at the time of committing the murder,  were
\nrecovered by the Investigating Officer.\n<\/p>\n
2.  The evidence of PW-5 is also relevant.    PW-5 BM
\nShahi is a teacher residing in the vicinity   of the place of
\nincident.    He heard the sound of  two rounds of firing and
\nalso  the voice saying   “Arnit ab bhago”.      PW-6 is
\nanother witness who saw  appellant  Sidharth running
\naway from the place of occurrence.    He too heard the
\nsound of firing.\n<\/p>\n
3.  Another important evidence which is consistent with
\nthe confession made by appellant Arnit Das   is the
\nevidence of  Arko Pratim  Banerjee, who was examined as
\nPW-8.   PW-8 is a friend of  Arnit Das.   On 5.9.1998, that
\nis, on the date of the occurrence at about 7.30 P.M. he had
\ngone to the house of  appellant Arnit Das.   He found Arnit
\nDas in a state of nervousness  and made enquiries.\n<\/p>\n
Arnit Das told him that he had committed the murder of
\nAbhishek.   He told him  that he had  fired a shot at
\nAbhishek in front of the house of Prof. Banerjee.  Then
\nappellant Arnit Das  showed a double barrel pistol and two
\ncartridges and gave the cartridges to him and asked him to
\nreturn the same on the next day.        PW-8 could not
\nbelieve this and he returned to his house.   On the next
\nday he read the newspaper and  came to know that
\nAbhishek had been shot.     PW-8 got  frightened  and
\nwent to the house of Arnit Das and returned the empty
\ncartridges  which he had received on the previous day.
\nPW-8 further deposed that  the parents of Arnit Das came
\nto know that Arnit Das had been concealing something.
\nIn the evening,  PW-8  again went to the house of Arnit
\nDas and there he saw Lakshman, the servant of Sidharth.
\nPW-8 heard Lakshman  saying that   “Sidharth bhaiya had
\nadvised Arnit Das to flee away to Bengal”.     This witness
\nagain went to the house of Arnit Das on 7.9.98.\n<\/p>\n
Lakshman was present again and all the three went to the
\nterrace of the building.     Arnit Das handed          over a
\ndouble barrel pistol and empty cartridges to Lakshman.
\nThough PW-8 went to the house of Arnit  Das on 9.9.98,
\nhe could not meet  him.     Police came to his house on
\n14.9.98 and took his statement  and later his evidence
\nwas recorded by the Magistrate.   PW-8 was cross-\n<\/p>\n
examined by the counsel for appellants Sidharth and Arnit
\nDas,  but the evidence of this 17 years old boy could not
\nbe shaken to any extent.   The unimpeachable evidence  of
\nPW-8 gives complete corroboration to what had been
\nstated by Arnit Das in his confessional statement.\n<\/p>\n
4.   It is also important to  note that appellant Arnit Das
\nmentioned in his confession that he himself along with
\naccused Rohan Prakash and Sidharth assembled in a room
\nin the house of Sidharth.  He gave detailed description of
\nthe room.   The investigating officer  later visited this room
\nand prepared the report and the description of that room
\ntallied with the description given by Arnit Das in his
\nconfessional statement.\n<\/p>\n
\tThe confession made by appellant Arnit Das is voluntary and is
\nfully corroborated by the above items of evidence.   The Sessions
\nJudge was perfectly justified in relying on the confession made by
\nappellant Arnit Das.\n<\/p>\n
The learned Counsel for the State extensively relied on Section
\n10 of the Evidence Act and contended that the confession made by
\nappellant Arnit Das fully implicates appellant Rohan Prakash and
\nSidharth and as the charge of conspiracy made against all the three
\naccused persons is satisfactorily proved, the confession made by
\nappellant Arnit Das is admissible under Section 10 of the Evidence Act.
\nThe learned Counsel for the appellant, on the other hand, contended
\nthat the words used in Section 10 of the Evidence Act are not capable
\nof being widely construed.  He argued that the statements made in the
\nconfessions related to the past acts done by the accused  and they
\nwere made after the object of conspiracy had been accomplished. It
\nwas argued that things said, done or written while the conspiracy was
\nafoot are relevant as evidence of the common intention once
\nreasonable ground has been shown to believe in its existence,  but it
\nwould be a very different matter to hold that any narrative or
\nstatement or confession made to a third party after the common
\nintention or conspiracy was no longer operating and had ceased to
\nexist,  is admissible against the other party.    Reliance was placed by
\nthe appellant’s learned Counsel on the decision of the Privy Council in
\nMirza Akbar Vs. The King-Emperor 1940-41(45) C.W.N. 269 and
\nalso the decision of this Court in Mohd. Khalid Vs. State of W.B.
\n(2002) 7 SCC 334.  The learned Counsel for the State on the other
\nhand, relied on the decision in Ammini & Ors. Vs. State of Kerala
\n(1998) 2 SCC 301 and also in State through Superintendent of
\nPolice, CBI\/SIT Vs. Nalini and Others(1999) 5 SCC 253.  The
\nconfession made by appellant Arnit Das was made after the common
\nintention of the parties was no longer in existence.  There is some
\nforce in the contention advanced by the learned Counsel for the
\nappellant; therefore, we do not propose to invoke Section 10 as
\nagainst appellants  Sidharth and  Rohan Prakash.\n<\/p>\n
\tThe counsel for appellants Sidharth and Rohan Prakash  further
\nsubmitted that the confession made by Arnit Das shall not be used
\nagainst these two accused as the confession of a co-accused shall not
\nbe the basis for a conviction.   It was submitted that the confession of
\na co-accused is not an evidence and it cannot be taken into
\nconsideration as against other accused persons.   It was submitted
\nthat the confession made by a co-accused  cannot be sufficient to
\nconvict  the other accused and the confession statement  can only  be
\ntreated as a corroborative piece of evidence.  It was argued that in
\nthe absence of other reliable  evidence against Sidharth and Rohan
\nPrakash, the confession made by Arnit Das shall not be used against
\nthem.\n<\/p>\n
\tIt is true that the confession made by a co-accused shall not be
\nthe sole basis for a conviction.   This Court in Kashmira Singh vs.
\nThe State of Madhya Pradesh   AIR<\/a> 1952 SC 159 held  that the
\nconfession of an accused person is not evidence in the ordinary sense
\nof the term as defined in Section  3.   It cannot be made the
\nfoundation of a conviction and can only be used in support of other
\nevidence.   The proper way is, first, to marshall the evidence against
\nthe accused excluding the confession altogether from consideration
\nand see whether, if it is believed, a conviction could safely be based on
\nit.   If it is capable of belief independently of the confession, then of
\ncourse it is not necessary to call the confession in aid.     But cases
\nmay arise where the Judge is not prepared to act on the other
\nevidence as it stands,  even though, if believed, it would be sufficient
\nto sustain a conviction.    In such an event   the Judge may call in aid
\nthe confession and use it to  lend assurance to the other evidence and
\nthus fortify himself in believing what without the aid of the confession
\nhe would  not be prepared to accept.\n<\/p>\n
\tThis  view  was  later followed in Haricharan Kurmi & Anr. vs.
\nState of Bihar AIR 1964 SC 1184.   The Constitution Bench held that
\nthe confession of a co-accused person cannot be treated  as
\nsubstantive evidence and can be  pressed into service only when the
\nCourt is inclined to accept other evidence and feels the necessity of
\nseeking for an assurance in support of its conclusion deducible from
\nthe said evidence.\n<\/p>\n
\tTherefore,  it is necessary to assess the evidentiary value of the
\nconfessional statement of Arnit Das in the light of other evidence
\nadduced in this case.    The complicity of the other two accused
\npersons is to be ascertained   from the other items of evidence.  Apart
\nfrom the confession, the complicity of  accused Sidharth is borne out
\nfrom the other independent evidence.    The evidence of PW-6 Rajeev
\nRanjan clearly shows  that  accused Sidharth was present at the place
\nof occurrence.    PW-6 had seen him running away from there.  At the
\ntime of  his evidence,  he deposed  that he  was in a perplexed
\ncondition.    The counsel for the appellant  pointed out that this was
\nnot stated by the said witness to the police.  But, nevertheless, the
\nevidence of PW-6  would show that  appellant Sidharth was present at
\nthe place of occurrence and was escaping from there immediately after
\nthe firearm was shot.    The evidence of PW-6 gets corroboration from
\nthe evidence of PW-18,  the father of deceased Abhishek.   PW-18
\ndeposed that on 5.9.98, PW-6 informed him that while he was
\nreturning  to his house after purchasing some goods from the market,
\nhe heard  the sound of firing of two shots and he just stayed there for
\na while after hearing the shots and saw Sidharth running from  eastern
\nside  towards  western  side of the park.  PW-6   enquired from
\nSidharth what had happened but Sidharth ran away towards his house
\nwithout saying anything.   PW-18 also deposed  that PW-6 Rajeev
\nRanjan told him that Sidharth was running in a very suspicious
\nmanner.    On the contrary, this  appellant tried to prove that he was
\nnot  present at the place of occurrence  and examined defence
\nwitnesses, but the Sessions court disbelieved these witnesses for valid
\nreasons.\n<\/p>\n
 The evidence of PW-8 Arko Pratim Banerjee also supports the
\nprosecution version.    He saw Lakshman in the house of appellant
\nArnit Das and also heard Lakshman say  to Arnit Das that “Sidharth
\nbhaiya had advised him to flee away to Bengal.”   The involvement of
\nappellant Sidharth in the crime is  satisfactorily proved by these items
\nof  evidence.  It may also be noticed that according to prosecution,
\nthere was a conspiracy between appellant Arnit Das and  the two other
\nappellants.    In that view of the matter, the confession made by  co-
\naccused Arnit Das could be made use of against  appellant Sidharth
\nunder Section 30 of the Evidence Act.\n<\/p>\n
\tIn  the confession made by appellant Arnit Das, he has explained
\nin detail the involvement of appellant Sidharth in the crime.  He stated
\nthat on 1.9.1998, he was asked to assault Abhishek, but he refused to
\ndo so and  again on 4.9.1998 he was called to the house of Sidharth
\nand told that though he had made attempts to assault Abhishek many
\ntimes, he escaped and Sidharth wanted Arnit Das to kill Abhishek.
\nAppellant  Sidharth told  him that if he killed Abhishek,  he would
\nmake him acquainted with notorious criminals, including one Suraj
\nBhan.  In the confession,  appellant Arnit Das explained as to how the
\nmission was to be carried out.  Description of Abhishek also was
\nmentioned.  Again, on 5.9.1998 he met Sidharth at his residence
\nwhere the latter gave him  a double bore country-made pistol and
\nloaded two cartridges in his presence and two extra cartridges were
\nalso given.  Arnit Das further stated in his confession that he went to
\nthe residence of Prof. J.C. Banerjee at about 6.30 p.m. and Sidharth
\ntoo came and told him to call Abhishek out and kill him.  Appellant
\nArnit Das told in his confession that he called Abhishek out  of Prof.
\nBanerjee’s house and shot him with  the country made pistol and  at
\nthat time saw Sidharth standing at a distance.  Arnit has further stated
\nthat at quarter past eight on that day,   Sidharth came to his house
\nand told him that he had  accomplished the job.  On 7.9.1998
\nSidharth   sent  his  servant   Lakshman to Arnit Das  to  tell him to
\ngo  out  of  Patna,  and  that  if Sidharth was implicated,  he would
\nshoot him (Arnit).   Therefore, the confession made by appellant Arnit
\nDas clearly supports the other items of evidence against Sidharth and
\nhis participation in the conspiracy and his role in the crime is fully
\nestablished.\n<\/p>\n
\tBut as regards appellant Rohan Prakash, his conduct and
\nbehaviour on the date of the occurrence were of highly suspicious
\nnature.  Appellant Rohan Prakash was present in the tuition class
\nalong with deceased Abhishek.  Appellant Arnit Das came to the house
\nof Prof. Banerjee at about 7.00 p.m. on 5.9.1998 and met Mrs. Rekha
\nBanerjee and enquired about Abhishek.  At that time, appellant Rohan
\nPrakash and deceased Abhishek were attending the tuition classes.
\nAppellant Arnit Das introduced himself as a friend of Abhishek to Mrs.
\nRekha Banerjee and requested to call him.  Abhishek came out
\nfollowed by Rohan Prakash.  Shortly thereafter, PW 11 Prof. Banerjee
\nheard the sound of firing.   When the sound of firing was heard,
\nappellant Rohan Prakash wanted to go out  in that direction.  Although
\nMrs. Rekha Banerjee tried to  prevent him from going out,  he
\nmanaged to  extricate himself and went out  to the  place of
\noccurrence  and  later  gave  the  F.I. statement to the police.   The
\nF.I. statement given by appellant Rohan Prakash was in a way a
\nmisleading one.  It is true that there was no necessity for appellant
\nRohan Prakash  to come out of  the tuition class.  In the confession
\nstatement made by appellant Arnit Das, he has mentioned that
\nappellant Rohan Prakash is one of the conspirators.   Apart from the
\nsuspicious conduct of appellant Rohan Prakash on the date of the
\nincident, there is no other evidence against him.  Therefore, it is
\ndifficult to hold that there is other independent evidence to find him
\nguilty of the  murder and as there is no independent evidence against
\nRohan Prakash, the confession made by the co-accused Arnit Das
\ncannot be made as supporting evidence under Section 30 of the
\nEvidence Act.   In our view, the prosecution has not succeeded fully in
\nproving the guilt of appellant Rohan Prakash. The independent
\nevidence is not sufficient to prove that he had actively participated in
\nthe conspiracy. The conduct exhibited by this appellant would cast
\nserious suspicion on him, but that by itself is not sufficient to find him
\nguilty of the offence under Section 302  read with Sections 34 and
\n120-B IPC.   In our view, appellant Rohan Prakash is entitled to get the
\nbenefit of doubt.   Criminal Appeal   No. 736 of 2003 filed  by Rohan
\nPrakash is, therefore,  liable to be allowed.\n<\/p>\n
Appellant Arnit Das made his confession before the Judicial
\nMagistrate and his confession is corroborated by other items of
\nevidence.  He had also made extra-judicial confession to PW-8 Arko
\nPratim Banerjee.    The confession made by appellant Arnit Das was
\nnot under any inducement, threat or promise and is voluntary in
\nnature.   Therefore,  it is perfectly admissible under the Evidence Act.
\nThe conviction and sentence entered against  appellant Arnit Das on all
\ncounts are not liable to be interfered with.  Criminal No.  689 of 2003
\nfiled by appellant Arnit Das is liable to be dismissed.\n<\/p>\n
Appellant Sidharth  has been proved to have actually
\nparticipated in the conspiracy.   There is independent evidence to
\nprove that he made all the arrangements pursuant to the criminal
\nconspiracy and induced appellant Arnit Das to commit the murder of
\ndeceased Abhishek.    Sidharh was present at the scene of the
\noccurrence and that fact  is proved by the evidence of PW-6
\ncorroborated by the evidence of PW-18.  It is proved that Sidharth
\nabetted the commission of the murder and as he  was present at the
\nscene of occurrence at the time of commission of the crime, Section
\n114 of the Indian Penal Code also would  apply.   Section 114 IPC
\nprovides that “whenever any person, who is absent would be liable to
\nbe punished as  an abettor, is present when the act or offence for
\nwhich he would be punishable in consequence of the abetment is
\ncommitted, he shall be deemed to have committed such act or
\noffence.”  The independent evidence adduced against appellant
\nSidharth is further corroborated by the confession made by appellant
\nArnit Das.   The conviction of appellant Sidharth under Section 302
\nread with Section 120-B and 34 IPC is only to be confirmed.
\nConsequently, Criminal  Appeal No. 688 of 2003 is liable to be
\ndismissed.\n<\/p>\n
Lastly, we may point out that in the present case, we have
\nnoticed that the entire case diary maintained by the police was made
\navailable to the accused.   Under Section 172 of the Criminal
\nProcedure Code, every police officer making an investigation  has to
\nrecord his proceedings in a diary setting forth the time at which the
\ninformation reached him, the time at which he began and closed his
\ninvestigation, the place or places visited by him and a statement of the
\ncircumstances ascertained  through his investigation.     It is
\nspecifically provided in Sub-clause (3) of  Section 172 that neither the
\naccused nor his agents shall be entitled to call for such diaries nor
\nshall he or they  be entitled to see them merely because they are
\nreferred to by the Court, but if they are used by the police officer who
\nmade them to refresh his memory,  or if the Court uses  them for the
\npurpose of contradicting such police officer, the provisions of  section
\n161  of the Cr.P.C. or the provisions of section 145 of the Evidence Act
\nshall be complied with.   The Court is  empowered to call  for such
\ndiaries  not to use it as evidence  but to use it as aid  to find out
\nanything that happened during the investigation of the crime.  These
\nprovisions have been incorporated in the Code of Criminal Procedure to
\nachieve certain specific objectives.  The police officer who is
\nconducting the investigation may come across series of information
\nwhich cannot be divulged to the accused.    He is bound to record such
\nfacts in the case diary.   But if  the entire case diary is made available
\nto the accused, it may cause serious  prejudice to others and even
\naffect  the safety  and security of those who may have given
\nstatements to the police.    The   confidentiality   is always kept in the
\nmatter of criminal investigation and it is not desirable to make
\navailable   the entire case diary  to the accused.  In the instant case,
\nwe have noticed that the entire case diary was given to the accused
\nand the investigating officer was extensively cross-examined on many
\nfacts which were not very much relevant for the purpose of the case.
\nThe  learned Sessions Judge  should have been careful in seeing  that
\nthe trial of the case was conducted in accordance with the provisions
\nof the Cr. P.C.\n<\/p>\n
\tIn the result, we allow the Criminal Appeal No. 736\/2003 filed by
\nappellant Rohan Prakash and he is directed to be set at liberty
\nforthwith if not required in any other case.  Criminal Appeal No.
\n688\/2003 filed by appellant Sidharth and Criminal Appeal No.
\n689\/2003 filed by appellant Arnit Das are dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sidharth, Etc. Etc vs State Of Bihar on 30 September, 2005 Author: K Balakrishnan Bench: K.G. Balakrishnan, B.N. Srikrishna CASE NO.: Appeal (crl.) 688 of 2003 PETITIONER: Sidharth, etc. etc. RESPONDENT: State of Bihar DATE OF JUDGMENT: 30\/09\/2005 BENCH: K.G. Balakrishnan & B.N. Srikrishna JUDGMENT: J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-127764","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSidharth, Etc. Etc vs State Of Bihar on 30 September, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sidharth-etc-etc-vs-state-of-bihar-on-30-september-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sidharth, Etc. 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