ALOKE NATH DUTTA AND ORS. versus STATE OF WEST BENGAL

Citation: [2006] SUPP. 10 S.C.R. 662 · Decided: 12-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off
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Judgment (excerpt)

A 
ALOKE NA TH DUITA AND ORS. 
v.. 
STA TE OF WEST BENGAL 
DECEMBER 12, 2006 
B 
[ S.B. SINHA AND DAL VEER BHANDARI, JJ.] 
Penal Code, 1860: 
ss. 120B/302 and 201134--Conspiracy and murder-Prosecution case 
C against four accused based on circumstantial evidence-Second accused 
impersonating as brother of first accused and signing some papers for sale 
of property-Other accused signing as witnesses-Dead body of brother of 
first accused found concealed in a newly erected platform in his house-
Extra-judicial confession of first accused stating to have killed his brother 
as deceased was not agreeable to the sale of ancestral property-He did not 
D state other accused to have participated in the crime-Retracted judicial 
confession of second accused involving other accused--But stating that 
before taking to Magistrate for recordhg confession, he was taken to police 
station, tortured and tutored-No other evidence suggesting participation of 
other accused in crime-Held, there is no eye-witness of the incident-
£ Signing of certain documents by one accused impersonating deceased and 
other accused signing as witnesses per se would not lead to conclusion that 
other accused agreed with first accused to eliminate his brother-In absence 
of any substantive evidence other accused cannot be convicted merely on 
basis of retracted confession and are, therefore, acquitted-First accused 
convicted u/s 302 and his sentence commuted to imprisonment for life-
F Retracted confession-Evidentiary value of-Circumstantial evidence. 
Evidence Act, 1872: 
Extra-judicial confession-Admissibility of in evidence-Held, law does 
not envisage taking on record entire confession by making it an exhibit 
G incorporating both admissible and inadmissible part thereof together-On 
facts, only that part of confession which is admissible would be leading to 
recovery of dead body and/or articles of deceased-Purported confession 
proceeded to state even the mode and manner in which deceased was 
allegedly killed-This part is not to be taken on record 
H 
662 
.... 
ALO KE NATH DUTT Av. STA TE OF WEST BENGAL 
663 
Confession before Magistrate-Recording of-Factors, besides A 
procedural safeguards, to be taken into consideration-Discussed-Code of 
Criminal Procedure, 197 3-s.164. 
s.24-Confession retracted stating that it was recorded after being 
tortured and tutored by police-Evidentiary value of-Held, retracted 
confession is a weak evidence-No judgment of conviction to be passed on B 
an uncorroborated retracted confession-Factors to be taken into 
consideration while testing veracity of a retracted confession-Discussed-
Code of Criminal Procedure, 1973-Constitution of India, 1950-Articles 
20(3) and 21. 
s.30-Proved confession-Affecting person making it, and co-accused- C 
Evidentiary value of 
s.114-Presumption-Plea of accused that before taking to Magistrate 
for recording his confession, he was taken to police station and tortured and 
tutored-Application filed to call for jail records to prove this-Record not 
produced-Trial court drawing inference that record had been destroyed- D 
Held, no such inference could be drawn in /aw-Court should give benefit 
of doubt to accused instead of prosecution. 
Appellants A-1 to A-4 were prosecuted for offences punishable under 
ss. 120B/302, 302/34 and 201134 IPC. The prosecution case was that A-1, E 
who had vices of gambling and horse racing etc. took advance from PW-15 
and PW-8, to whom he intended to sell the house property of which he was a 
co-owner along with his other three elder brothers namely PWs 3,4 and 
deceased 'B' and one sister(PW-5). His ~Ider brother 'B' was livi.ng in the 
same hotise while his other two brothers were living separately. 'B' was not 
in favour of sale of the property; other brothers were not even aware of it. F 
The transactions with regard to sale of the property in favour of PW-15 and 
PW-8 were being made as if 'B' was a party thereto. A-2 was said to have 
been impersonating 'B' and signing several documents. A-1 to A-4 were 
alleged to have committed murder of 'B' in the night between 22/23.1.1994 
and concealed the dead body by erecting a platform in the room. A-1 made an 
extra judicial confession before PWs-3, 4,6 and 15 and some tenants that he G 
had throttled 'B' to death. When interrogated by police A-1 made a confession 
that he had concealed the dead body of' B' in the newly constructed platform 
· in the room. The platform was dismantled and a skeleton w
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