Arts. 21, 22(1) and 14 - Fair trial - Right to proper legal assistance - Challenge to death sentence on ground of prejudice
resulting from errors by defence counsel - Tenability and manner of appreciation of effect of said prejudice - Held, the
totality of circumstances should be considered to find out if there is a reasonable probability that in the absence of
alleged errors by defence counsel causing prejudice, the court independently reweighing evidence, aggravating and
mitigating circumstances would not have awarded death sentence - In that case death sentence should be commuted -
The present case is not one such case, though death sentence has been commuted on other considerations mentioned
in Shortnote A - Taking the totality of circumstances into consideration, it cannot be said that the accused was not given
proper legal assistance in the trial court and High Court - No doubt PW 17 should not have been subjected to cross-
examination without being put to chief-examination - There is no scope under S. 138, Evidence Act to start with cross-
examination without examination-in-chief - But the participation of appellant in the crime was otherwise proved beyond
reasonable doubt,
SUPREME COURT OF INDIA
Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747
Criminal Law
Penal Code, 1860
Ss. 302, 148, 149, 326, 307 and 436 - Theory of residual or lingering doubt - Meaning, scope of and applicability for
commutation of death sentence upon consideration of aggravating and mitigating circumstances and R-R test - Criminal
courts carry some residual doubt regarding innocence of accused, even when they are convicting an accused on basis of
proof beyond reasonable doubt - Residual doubt is not a fact about the accused or the circumstances of the crime, but a
lingering uncertainty about facts, a state of mind that exists somewhere between beyond a reasonable doubt and
absolute certainty - In present case, there being a lingering doubt as to whether appellant alone could have organised
and executed the entire crime, which as evident was the handiwork of a large group of people (about 30-35 persons),
and considering the mitigating circumstances, this is not a rarest of rare case to award death sentence - But further
considering that there was extreme social indignation, crime was against linguistic minority and victims were innocent
women and children, it would be in the interest of justice if the death sentence is commuted to life sentence for a
minimum fixed term of 20 yrs of RI without remission over and above the period of imprisonment already undergone,
Criminal Procedure Code, 1973
Ss. 354(3) and 235(2) - Sentencing policy with regard to death sentence - Principles reiterated - There is no clear cut
policy for awarding death sentence nor can it be laid down - But the only safeguard is to provide special reasons not
merely reasons for awarding death sentence - Thus the observance of the three tests (Crime Test, Criminal Test, R-R
Test) and the mentioning of special reasons can to some extent allay the fears of uncertainty with regard to policy
regarding death sentence,
Constitution of India
Arts. 21, 22(1) and 14 - Fair trial - Right to proper legal assistance - Challenge to death sentence on ground of prejudice
resulting from errors by defence counsel - Tenability and manner of appreciation of effect of said prejudice - Held, the
totality of circumstances should be considered to find out if there is a reasonable probability that in the absence of
alleged errors by defence counsel causing prejudice, the court independently reweighing evidence, aggravating and
mitigating circumstances would not have awarded death sentence - In that case death sentence should be commuted -
The present case is not one such case, though death sentence has been commuted on other considerations mentioned
in Shortnote A - Taking the totality of circumstances into consideration, it cannot be said that the accused was not given
proper legal assistance in the trial court and High Court - No doubt PW 17 should not have been subjected to cross-
examination without being put to chief-examination - There is no scope under S. 138, Evidence Act to start with cross-
examination without examination-in-chief - But the participation of appellant in the crime was otherwise proved beyond
reasonable doubt,
Criminal Law
Penal Code, 1860
Ss. 302, 148, 149, 326, 307 and 436 - Though 30-35 persons alleged to have perpetrated large-scale violence and
murder, still conviction of appellant alone, due to absconsion of others/lack of evidence against them, for murder
confirmed - Murder of persons from linguistic minority by burning their houses and firing at innocent victims resulting in
death of 15 persons including women and children - Death sentence of appellant however, commuted to minimum fixed
term of 20 yrs' RI without remission over and above the period already undergone (see Shortnote A in detail), (2014) 4
Criminal Procedure Code, 1973
Ss. 154, 161 and 162 - Information if FIR - Complaint received once investigation had commenced, held, cannot be
treated as FIR - Nature of PW 2's statement, whether FIR under S. 154 CrPC or statement under S. 161 CrPC - PW 18
(Officer-in-charge) first receiving telephonic message from a camp about riot - PW 18 therefore, immediately visiting spot
witnessing crime scene and based thereon had started investigation - Thus police machinery had already been set in
motion on basis of information that PW 18 had already got - Thereafter PW 2 lodging complaint, which was treated as
FIR - Held, PW 2's statement cannot be treated as FIR as it was received during the course of investigation, it can only
be treated as statement under S. 161 CrPC - Therefore, it can only be used for the purpose of contradicting PW 2,
Criminal Procedure Code, 1973
Ss. 161, 162 and 154 - S. 161 CrPC statements - Discrepancies and omissions - When immaterial - Disturbed mental
state of witnesses who lost their blood relations in the shocking incident of mass murder of their people by linguistic
majority group - In the incident, PW 10's brother being killed and PW 13 losing his daughter and wife - Appellant-
accused not being named in S. 161 CrPC statements of PWs 10 and 13, held, is not fatal to prosecution case - Just
because they did not name the accused persons in S. 161 CrPC statement would not be a reason to discard their
evidence considering their mental state - Their oral evidence can be relied on if found reliable and creditworthy - S. 161
CrPC statements as such are not substantive evidence and are used for contradiction and not for corroboration,
Criminal Trial
Test Identification Parade - Primary object of test identification parade stated - Primary object of TIP is to enable the
witness to identify the persons involved in the crime if the offenders are not personally known to the witness - But where
the witnesses are known to the witnesses foregoing TIP may not be fatal to prosecution case - However, it is for the court
to decide the case on facts,
Criminal Trial
Test Identification Parade - Absence of TIP, when not fatal to prosecution case - Accused was known to witnesses
(PWs 10 and 13) - Evidence of said witnesses being reliable and credible - Said witnesses identifying accused in open
court - Trial court and High Court concurrently accepting their evidence and there being no defect in their evidence - The
mere fact that no TIP was conducted, held, would not be a reason to discard the evidence of these witnesses,
Criminal Procedure Code, 1973
S. 313 - Examination of accused - Statements/Answers by accused to questions put under S. 313 - Evidentiary value
and consideration of effect and nature of question put to accused - Corroborative use or to draw adverse inference if
incriminating circumstances established by evidence are not explained by accused - Held, S. 313 statements solely by
themselves not enough for conviction - S. 313 statements can be used for corroboration along with other evidence for
conviction (as was rightly done in present case) - In present case accused admitted that four persons sustained bullet
injuries by the firing done by him and his associates - And when the question of death of some persons by his bullet was
raised during S. 313 CrPC examination, appellant-accused remained silent - This coupled with other evidence was rightly
used to convict appellant-accused - Therefore, the plea that no incriminating questions were put to the accused or that
questions regarding his absconsion were not put to him is not tenable,
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