LexLOKEMAN SHAH AND ANR. ETC. ETC. versus STATE OF WEST BENGAL ETC. ETC.
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LOKEMAN SHAH AND ANR. ETC. ETC. v. STATE OF WEST BENGAL ETC. ETC. APRIL 11, 200 I [K.T. THOMAS, R.P. SETHI AND S.N. PHUKAN, JJ.] Penal Code, 1860-Sections 142: 149 & 302-Murder-Unlawful as- sembly-Murder of Police personnel by accused in a communal riot-First accused sentenced to death by Trial Court-High Court upholding conviction A B but altered sentence to life imprisonment-Conviction on basis of confessional C statemen!-Validity of-Held, confessional statement valid-Accused was mem- ber of unlawful assembly-Conviction and sentence upheld-Criminal Proce- dure Code, 1974--Section 164. Second accused sentenced to death by Trial Court and High Court- Conviction on basis of evidence of eye-witness and corroboration of his state- D ment by another witness-Admissibility of-Held, such evidence is admissible in evidence as a corroborative material-Conviction upheld-However, sen- tence altered to life imprisonment-Evidence Act, 1872--Section 157. Two police personnel, including a Deputy Commissioner, were bru- tally murdered after chasing them in a communal riot which broke out on account of demolition of a mosque during Holi celebrations. Four persons, which included two accused appellants, were convicted for murder and sentenced to death by Trial Court. On a retrial ordered by High Court, the conviction of the appellants were confirmed by the Trial Court. The High Court, while confirming the conviction of both, alterrd the sentence from death to life imprisonment in respect of the first accused and upheld the death sentence of the second accused. Hence the appeals by the two ac- cused. State Government also filed an appeal before this Court for en- hancement of sentence to the first accused. The first appellant contended that bis conviction, which was based on his statements to Judicial Magistrate, was not a confessional statement; that the statement was not voluntarily given since one of the co-accused who was arrested along with him died in lock-up which proved physical torture by the Police; that he had no common intention with others to murder the Police personnel; that there is nothing in his statement to show 1095 E F G H A B c D E 1096 SUPREME COURT REPORTS (2001] 2 S.C.R. that he shared knowledge with others to murder the Police personnel; and that the confession, without the corroboration, cannot be acted on for the purpose of conviction. The second appellant contended that the deposition PW-24, cannot be treated as wholly reliable; and that there is no corrobo- ration for the evidence of PW-24. Dismissing the appeals, the Court HELD : 1.1. The statement made by the first appellant does incrimi· nate himself very much. Whether a statement recorded by Judicial Magis- trate under Section 164 Cr.P.C. from an accused is confessional or non-confessional is not by dissecting the statement into different sentences and then to pick out some as not inculpative. The statement must be read as a whole and then only the Court should decide whether it contains admissions of his incriminatory involvement in the offence. If the result of that test is positive then the statement is confessional, otherwise not. Applying that test, the statement of the first appellant is a confessional statement. [1102-A-C] Balbir Singh v. Stale of Punjab, AIR (1957) SC 216; Pyare Lal Bhargava v. State of Rajasthan, AIR (1963) SC 1094; Ram Chandra Prasad Shanna v. Stale of Bihar, AIR (1967) SC 349; Hemraj v. The Stale of Ajmer, [1954) SCR 1133 and M. Narsinga Rao v. State of A.P., [2001) 1 SCC 691, referred to. 1.2. The death of the co-accused in the lock up is not a sufficient ground to eclipse the voluntariness of the confession of the first appellant, which was recorded by the Judicial Magistrate. There is no allegation that the Judicial Magistrate has not adopted all the precautions enjoined by F law before recording the confession. No other formality prescribed under law has been infringed by the Judicial Magistrate. [1103-D-E) 1.3. The confession shows that the first appellant got himself in- volved in the episode and the role played hy him. He did not say in so many words that he shared the common object of the unlawful assembly, which G usually nobody would say. [1103-H; 1104-A] 1.4. It is within the radius of permissibility that Court can rely on a factual presumption for the purpose of reaching one conclusion. Thus, the confessional statement, if admissible and reli
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