N Criminal Appeal Nos
545 of 1982 209 and 210 213 of 1983
From the Judgment and Order dated 13982 of the Gauhati High Court in Crl
Death Ref No 18l and Crl
Appeal No l9j 24  25 of 1981
Jain and Mrs K Kochar for the Appellants
Nandy for the State of Assam
537 Rajendra Singh Ms ML Lahoty VBJoshi Hrishikesh Roy  A R Kathahzarika for the appellants in Criminal Appeal No 209 of 1983
Vaidyanathan for the respondents
Patel for the complainant in Criminal Appeal No 545 Of 1982
Singh for the respondents in Criminal Appeal Nos
210 213 of 1983
The Judgment of the Court was delivered by VARADARAJAN J
These appeals by special leave are against the common judgment of a Division Bench of the Gauhati High Court in Criminal Death Sentence Reference No 1 of 1981 in regard to two accused persons Henry Westmuller Roberts and Sunil Chandra Biswas and Criminal Appeal No 19 of 1981 filed by those two condemned persons and Criminal Appeals Nos 4 and 25 of 1981 filed by Naresh Chandra Ghatani and Anil Chandra Barua respectively
The Sessions Judge Dibrugarh in Sessions Case No 33 TSK of 1978 convicted and sentenced Henry Westmuller Roberts and Sunil Chandra Biswas hereinafter referred to as Henry and Sunil respectively to death under section 302 read with section 34 IPC for the murder of a boy Sanjay alias Gettu Agarwala hereinafter referred to as Sanjay and to imprisonment for life under section 364 read with section 34 IPC and rigorous imprisonment for seven years under section 201 read with s 34 IPC and those two accused Henry and Sunil and accused Anil Chandra Barua and Naresh Chandra Ghatani hereinafter referred to as Anil and Naresh respectively to rigorous imprisonment for five years each separately under section 120B and section 387 read with section 34 IPC
The sentences awarded to all the four accused were directed to run concurrently
Henry Sunil Anil and Naresh were accused 1 2 3 and 4 respectively in the Sessions Court
The High Court allowed Criminal Appeals Nos 24 and 25 of 1981 in full and acquitted Anil and Naresh and also allowed Criminal Appeal No 19 of 1981 in full as regards Sunil and acquitted him and rejected the death sentence reference relating to him and allowed the appeal of Henry in part as regards his conviction under section 120B l
PC and dismissed his appeal in other respects 538 and accepted the death sentence reference relating to him
The result is that the High Court found Henry guilty under sections 302 364 201 and 387 IPC and not guilty under section 120B l
PC and maintained the sentence awarded to Henry by the Sessions Court except in regard to the offence under section 120B l
PC and acquitted the other three accused persons in full
Henry has filed Criminal Appeal 545 of 1982 against his conviction and sentence awarded to him under section 302 364 201 and 387 IPC
The deceased Sanjay s father Chabil Prasad Agarwala has filed Criminal Appeal No 209 of 1983 against the acquittal of Sunil Anil and Naresh in entirety
The State of Assam has filed Criminal Appeal No 210 of 1983 against the rejection of the death sentence reference in regard to Sunil and Criminal Appeals Nos 22 212 and 213 of 1983 against the acquittal of Sunil in Criminal Appeal No 19 of 1981 Naresh in Criminal Appeal No 25 of 1981 and Anil in Criminal Appeal No 24 of 1981
Henry who had been acquitted by the High Court under section 120B l
PC is not a party to Criminal Appeal Nos
209 to 213 of 1983
The case of the prosecution is this In 1975 Henry Sunil and Naresh were employees of the Oil and Natural Gas Commission ONGC at Sibsagar in Assam
Henry an Anglo Burmese was a Laboratory Attendant
Sunil a Bengali Hindu was a truck Driver
Naresh a Nepalese was a Black smith Anil an Assamese was a Mohurrir under a con tractor of the ONGC at Sibsagar
These four accused entered into a conspiracy to kidnap minor children at Sibsagar Dibrugarh and Tinsukhia with a view to extract ransom
Chabil Prasad Agarwala PW 23 was doing business in food grains in a shop at Siding Bazar Tinsukhia situate in Dibrugarh district
He was living in a dwelling house situate adjacent to his shop with his wife Lilavati Agarwala PW 19 and seven children including Sumita Agarwala PW 21 and the deceased Sanjay who was nine years old and Studying in the Girls  Hindu School
There was a day long Holi  fagua festival in Tinsukhia town on 2631975
The people belonging to the Marwari community of Siding Bazar had erected a pandal near a Shiva temple in connection with the  Holi  festival
On that day three 539 persons who came to the temple for darshan at 9 or 930 am stayed on in the temple till about 1230 pm
Two of them have been subsequently identified as Henry and Sunil
A number of children collected in the pandal to participate in the festivities
Sanjay was in the pandal at about 5 or 530 pm playing with some children including Anil Kumar Chetri PW 12 and Nirmal Kumar Jain PW 13
One man who has been subsequently identified as Henry came and watched the play and remarked that Sanjay was playing well
A little later he gave chocolates to PW 12 and Sanjay and asked them for the names of their fathers which they readily mentioned
Soon thereafter Sanjay s elder sister PW 21 aged about 10 or 11 years came to the pandal in search of Sanjay as directed by her mother PW 19 and called him to go along with her
Then Henry who was in the pandal called Sunil who was present there as Driver  and asked him to bring chocolate
When PW 21 and Sanjay were moving away from the pandal Henry called Sanjay by his name and asked him to come saying that he would give him chocolates
Thereupon Sanjay stayed behind after telling his sister PW 21 that he would come a little later
Sunil brought chocolates which Henry distributed to the children
Henry asked Sunil whether the car was ready and he answered in the affirmative
PW 13 left the pandal a little later while Henry Sunil and Sanjay remained in the pandal at about 6 or 630 pm Sanjay did not return home
His father PW 23 who came home at about 7 p m
On that day went out again and returned home only at about 3 am On 2731975
PWs 19 and 21 told PW 23 that Sanjay had not returned home
Thereafter PW 23 and his men went out searching for Sanjay
Ramabatar Agarwala PW 20 an accountant in the partnership business of PW 23 and Hanuman Prasad Agarwala PW 35 informed the Inspector of Police Tinsukhia Police Station PW 42 at about 330 am on 2731975 about Sanjay missing since the previous day
At about 12 noon on 2731975 when PW 23 and others including PW42 were in PW 23 s shop a message came over telephone No 159 located at the shop demanding a ransom of Rs 3 lakhs for the return of Sanjay
PW 23 informed PW 42 about this demand then and there and later sent a written complaint exhibit 17 to Tinsukhia Police Station at about 4 30 pm
On the same day
A few minutes before PW 42 registered a case on the basis of that report Brahamadeo Rai PW 29 a rickshawman came to the 540 Police Station and handed over a packet saying that it was left behind by a passenger in his rickshaw who entered a market and did not turn up
PW 42 opened the packet and found it to contain a pair of a small boy s shorts M exhibit 26 two martons M exhibit 28 and an envelope M exhibit 1 containing the letter M exhibit 2 written in English and addressed to Shri Chabil Das Siding and two other items
The letter written in capital letters read Come with Rs 3 lakhs to Jewel Hotel tomorrow 6 pm 28
Do not inform police
Come alone
If not I kill
If no money take loan
 The address on the envelope M exhibit I and the body of the letter M exhibit 2 have been found by the hand writing expert PW I on a comparison with the specimen hand writing and signatures taken from Henry to be in the hand writing of Henry
Sanjay s mother PW 19 identified the shorts M exhibit 26 as those which were worn by Sanjay on the day of his disappearance on which she had embroidered the alphabet sha in Marwari script
On 30 31975 PW 23 received the telegram M exhibit 13 addressed to Chabin Das Siding TS to the effect I am not satisfied by your performance
Last chance for transaction
If you want your item wait instruction Lal and he informed PW 35 and others about it
exhibit 3 is original of that telegram seized by the police from the lost Master Moran Post Office PW 9
On 3131975 Pay
23 received the bearing envelope M exhibit 26 containing the letter M exhibit 7 written in Hindi
The hand writing expert PW 1 has on a comparison of M Exs 3 and 6 with the specimen hand writings of Henry found M Exs 3 and 6 to be in the hand writing of Henry
On 841975 PW 23 received a telephone call from Digboi asking him whether he had received letter and telegram
When PW 23 answered the caller in the affirmative he asked PW 23 to come to Digboi if he wanted back his son
PW 23 told the caller that he could not pay such a huge amount
It was ultimately agreed over the phone that PW 23 should pay a ransom of Rs 40000
The caller told PW 23 that he should come to the Church gate situate behind Digboi Railway Station and act according to a letter which would be found under a stone by the side of one of the panels of that gate
PW 23 and others accordingly went there and found a plastic cover underneath a stone 541 near the gate containing the letter M exhibit 5 written in English capital letters
The hand writing expert PW I has found M exhibit 5 on a comparison with the specimen hand writing of Henry to be in the hand writing of Henry
The police had deployed some plain clothed police personnel at the Digboi public call office for arresting anyone coming to book a call to Tinsukhia telephone No 159
Henry went to that office at about 730 or 8 pm
On 104 1975 and booked a call to that telephone number
After obtaining confirmation about the booking of the call from the telephone office employee Ajit Kumar Chakraborti PW 33 the Town Sub Inspector of Police PW 24 with help of two constables PWs 26 and 34 arrested Henry near that lt public call office
When interrogated by the Investigating Officer PW 42 Henry made a statement Ex33 offering to show the place where the dead body of Sanjay had been buried
On 1141975 Henry took the police party including the Assistant Political Officer and Magistrate Kanta Das PW 38 to a place situate by the side of a hillock in Bapapung
There was a mound from which the earth had been disturbed at that place
Two bones and three ribs were found near that mound and a big bone was found in the bushes and 8 more bones and a jaw bone with some teeth were found nearby
When the mound was dug a human skull with some hair sticking to it and seven bones were found
At the Digboi Police Station PW 38 obtained specimen hand writing and signatures from Henry M Exs
l l to 14
The Interrogation of Henry on 104 1975 led to the arrest of the other three accused Sunil Anil and Naresh OD 1141975 at Sibsagar
Exs 15 to 17 are the specimen hand writings of Naresh obtained by the Judicial Magistrate PW3 on 2751975
Ex2 is the report of the hand writing expert PW1 submitted to the Chief Judicial Magistrate Dibrugarh on 2081975 containing his opinion about the hand writings
The Investigating Officer P W 43 who had taken over from PW42 produced Henry before the Chief Judicial Magistrate Dibrugarh on 1241975 for recording his confessional statement which he was in a mood to make and it was recorded by the Judicial Magistrate PW3 on 124 1975 itself after giving him some time for reflection
Sunil was arrested by the Inspector of Police 542 PW41 on 1441975
Sunil Anil and Naresh made their confessional statements Exs 7 8 and 9 on 184124 1975 1941975 and 2141975 respectively before the Judicial Magistrate PW3
The medical Officer PW37 packed the incomplete skeletal remains mentioned above in the presence of the Judicial Magistrate PW3 and sent them to the Forensic Science Laboratory Gauhati on 2441975 under the direction of the Chief Judicial Maistrate Dibrugarh along with PW37 s autopsy certificate and two photo graphs of Sanjay
The Assistant Director Biology Section Forensic Science Laboratory Gauhti PW27 obtained some more photographs of Sanjay with their negatives and also a coat and a check shirt of the boy from the Chief Judicial Magistrate Dibrugarh
After a study of the skeletal remains PW27 found that they related to a 9 to 10 years old boy
By making super imposition PW27 concluded that the skull in question could have been the skull of Sanjay as per his enlarged photographs
Ex26 is the report of PW27
The Scientific Officer of the photograph Section of the Forensic Science Laboratory Gauhati PW28 performed the super imposition experiment of the photograph of the skull MEx48 and the photo graph of Sanjay MEx 59 and found them to be of the same per son
Ex 27 is the report of PW28
The four accused were subjected to test indentification in the parade held by the Second Class Magistrate PW2 on 3041975 and 491975
In the parade held on 3041975 Henry was indentified by 12 witnesses without any mistake while Sunil was indentified by 6 witnesses without any mistake and Anil was indentified by two witnesses without any mistake
Ex5 is PW2 s report relating to the proceedings of 3041975
In the parade held on 491975 Henry was identified by Rajender Nath Sharma PW9 and Jiten Barua PW25 without any mistake
Ex3 is the report relating to the proceedings of 491975
In their statements recorded under s313 of the Code of Criminal Procedure all the four accused retracted their confessional statements and denied all the circumstances appearing against them in the edvidence
The learned Sessions Judge Dibrugarh on a consideration of the evidence convicted all the four accused and sentenced them as mentioned above accepting the confessional statements Exs
6 to 9
543 of the four accused recorded by the Judicial Magistrate PW3 and the other evidence in the case
The learned Sessions Judge has considered these confessions in paras 101 to 110 of his judgment and has observed that there is nothing improbable or unbelievable in them that they appear to be spontaneous and are studded with vivid facts about the manner of commission of the crimes that they receive assurance in several material particulars from the circumstantial evidence let in by the prosecution and that they are all voluntary and reliable though it appeared from the cross examination of the prosecution witnesses and from the statements of the accused recorded under section 313 Cr
PC that they are retracted
But the learned Judges of the High Court rejected all the confessions and the evidence of PWs 10 11 16 and 25 regarding the identification of the accused in the test identification parade
They have considered the confession of Henry in paras 455562 and 64 of their judgment and have observed that the Judicial Magistrate PW3 had failed to act properly in giving only three hours to Henry for reflection before recording his confession Ex6 on 1241975
They have further observed that though it is difficult to lay any hard and fast rule in Serva Singh Rattan Sing vs State of Punjab1 it has been held by this Court that generally speaking when an accused is produced under police custody it is reasonable to insist upon giving him at least 24 hours for reflection
They have held that Henry s confessional statement Ex6 has been obtained by coercion and is not voluntary and that it suffers from serious infirmity and cannot be acted upon
They have considered Sunil s confessional statement Ex7 in paras 74 and 76 of their judgment and found that he too had been given only three hours for reflection before his confession was recorded by the Judicial Magistrate PW 3 on 1841975 and that it is not voluntary and therefore it is invalid in law
They have considered the confession Ex8 of Anil in paras 77 and 79 of their judgment and have observed hat the Judicial Magistrate PW3 who recorded it on 1941975 had failed to see whether the accused was going to make the confession voluntarily after comprehending the implications of his admission
They have considered the confession Ex 9 of Naresh recorded by the Judicial Megistrate PW 3 on 2141975 in paras 84 87 and 88 of their judgmemt and found that it has been made due to duress and 1  544 inducement by the police and is not voluntary and that it suffers from serious infirmities and cannot be acted upon
On a consideration of the other evidence the learned Judges found that Sanjay had been kidnapped and murdered and they accepted the trial court s judgment that the corpus Delecti has been correctly identified to be that of Sanjay
They accepted the evidence of PWs 12 to 15 and 21 about the presence of Henry and Sunil in the pandal at the temple before Sanjay had disappeared on 2631975
They accepted the evidence of the rickshawman PW 29 who has identified Henry in the test identification parade held by PW2 as the man who had left behind in his rickshaw the packet containing Sanjay s shorts MEx26 and certain other things including the letter MEx2 enclosed in the envelope MEx1 which he had produced at the police station on 2731975 and found on the evidence of the hand writing expert PWI Ex2 to be in the hand writing of Henry
On the evidence of the Post Master Moran PW9 Who has identified Henry in the test identification parade hold by PW2 as the person who landed over the telegram exhibit 3 copy whereof exhibit 13 had been received by PW 23 the learned Judges found that Henry had given the telegram exhibit 3
On the evidence of the hand writing expert PW  they found that exhibit 3 is in the hand writing of Henry and they held that exhibit 3 connects Henry with the crime
The learned Judges found on the evidence of PW 23 that he had received a bearing letter M exhibit 7 written in Hindi on 31
31975 enclosed in the envelope M exhibit 6 but held that it is not proved to be in the hand writing of any of the accused though the address written on the envelope M exhibit 6 of that letter is proved by the hand writing expert PW 1 to be in the hand writing of Henry and they rejected the evidence relating to that letter
The learned Judges accepted the evidence of PW 23 about the telephonic conversation he had with some caller from Digboi at about 8 or 830 pm
On 841915 when that caller demanded a ransom of Rs 3 lakhs for the return of Sanjay and it was ultimately agreed that PW 23 should pay Rs 40000 for the purpose
They accepted the prosecution evidence that in accordance with that conversation PW 23 accompanied by some police personnel in plain clothes who posted themselves at suitable places went near 545 the gate of the Church situate behind Digboi Railway Station on 941975 and found the letter exhibit 5 which has been found by the hand writing expert PW 1 to be in the hand writing of Henry in English capital letters and they held that this was a strong piece of circumstantial evidence against Henry
The learned Judges found that Henry attempted to run away when he was pointed out by PW33 while he was standing near a pan shop in front of the public telephone call office at Digboi on 1041975 waiting for the trunk call booked by him at about 7 or 730 pm on that day to Tinsukhia telephone No 159 to mature and that he bit the constable PW34 and tried to escape from his hold and that the circumstances under which he was arrested and his conduct at that time unerringly point to his guilt
The learned Judges accepted the evidence of PWs 14 15 and 21 about the identification of Henry and Sunil in the test identification parade held by the Judicial Magistrate PW2 as the persons who were present in the pandal before the disappearance of Sanjay on 2631975 observing that these three witnesses had seen the suspects in broad day light and were in a position to notice their physical features correctly
The learned Judges accepted the prosecution evidence that skeletal remains were recovered at the instance of Henry and pursuant to his confessional statement exhibit 33 admissible portion and found that the evidence of PWs27 28 and 37 agreeing with the trial court that the skull bone recovered pursuant to exhibit 33 is that of Sanjay and they have observed that the recovery of the skull bone of Sanjay at the instance of Henry is an important piece of evidence pointing unerringly to his guilt
The learned Judges accepted the evidence of the witnesses who had identified Henry in the test identification parade held by the Judicial Magistrate PW2 except the evidence of PWs 10 l l 16 and 25 on the ground that the photographs of Henry had been shown to P Ws 10 11 and 25 before the identification and PW 16 could not identify Henry in the court during the trial
The learned Judges noticed the law relating to circumstantial evidence in para 19 of their judgment thus 546 The law regarding circumstantial evidence is well settled
When a case rests upon circumstantial evidence such evidence must satisfy three tests i the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established ii those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused and iii the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else
The circumstantial evidence in order to sustain a conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused
The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence
After thus taking note of the law relating to circumstantial evidence the learned Judges have held in para 146 of their judgment that the circumstantial evidence against Henry taken cumulatively forms a chain so complete that there is no escape from the conclusion that the crime was committed by him and none else and that each of the circumstances established against him is incriminating and they cumulatively prove the complicity of the Henry in the kidnapping and murder of Sanjay
They found that the evidence is not satisfactory to prove the offence of conspiracy under section 120R IPC against Henry and acquitted him of that charge but agreed with the trial court in regard to the finding on the other charges and held him guilty under sections 364 387 302 and 201 IPC They thus allowed his appeal in part only as regards his conviction under s120B IPC and dismissed it in other respects and they accepted the death sentence confirmation case against him and confirmed the sentence of death as well as the other sentences awarded to him by the trial court except under section 120B IPC As regards Sunil apart from the confession Ex7 which has been rejected by the learned Judges they found that there was no other evidence except the evidence let in to prove his presence with Henry in the temple and the pandal in the morning and even 547 ing of 2631975 and they held that it is not sufficient to sustain his conviction and that as regards the other two accused Anil and Naresh there is no evidence except their retracted confessions Ex8 and 9 which have been rejected by them
In that view they acquitted three accused Sunil Anil and Naresh of all the charges framed against them and rejected the death sentence confirmation case against Sunil
The trial court acted upon the judicial confessional statements Exs
6 to 9 of all the four accused as being voluntary and reliable
But the learned Judges of the High Court rejected all of them as not being voluntary or acceptable
They have held that Henry s confession Ex6 has been obtained by coercion and suffers from serious infirmity
As regards Anil s confession Ex 8 they have observed that the Judicial Magistrate PW3 who had recorded it on 1941975 had failed to see whether Anil was going to make the confession voluntarily after comprehending the implications of his admission
As regards Naresh s confession Ex9 they have held that it has been made due to duress and inducement by the police and that it suffers from serious infirmities
In the view we are taking as regards Anil and Naresh it is not necessary to consider which of the two views whether of the trial court or of the High Court is correct n regard to their confessional statements Ex8 and 9
The acceptability or otherwise of the confessional statements of the other two accused Henry and Sunil has to be considered in detail
The Judicial Magistrate PW3 who had recorded Exs6 and 7 on 1241975 and 1841975 respectively had admittedly given only three hours time for reflection before he recorded them
He has stated in his evidence that after Henry was produced before him by constable Hadi Hussein at 11 am
On 1241975 he told Henry that he is a Judicial Officer and no other person was present inside the court and nobody would harm if he showed any reluctance to confess and that he was not bound to make any confessional statement but if he made one it would be used against him
He has G stated that after Henry told him that his mind was clear from the time of his arrest and that he wanted to confess out of repentance for what he had done he gave him three hours time for reflection and put him in the custody of a peon of the Chief Judicial Magistrate Dibrugarh in his own chamber and saw to it that no police officer was allowed to enter the court until the recording of the 548 confessional statement of Henry was over
He was stated that after Henry was brought before him from his chamber after the said interval he cautioned him as above and that after being satisfied that Henry was going to confess voluntarily he recorded his statement in Ex6
As regards Sunil also PW3 has stated that he administered the caution as he did in the case of Henry when he was produced before him at 1130 am
On 1841975 and that Sunil told him that he wanted to confess because he was repentant for what he had done and that he replied in the negative when he asked him if he had been threatened by the police
He has stated that after giving him three hours time for reflection he repeated the aforesaid warning to Sunil and that he expressed his willingness to make the confessional statement and he recorded it in Ex7 after he was satisfied that Sunil was going to confess voluntarily
It appears that Henry had some injury on his person when he was produced before PW3 and that on an earlier occasion Sunil had expressed his unwillingness to make any confessional statement
The injury found on Henry according to the entry exhibit Kal in the jail register was this Both hands on the back slight swelling complains of pain in both legs
The injury was not serious enough to force Henry to make a false confessional statement It must be remembered that Henry had attempted to run away when the postal employee PW33 pointed him to the police personnel in plain clothes and that after he was caught by the constables PWs26 and 34 as directed by the Sub Inspector of Police PW24 he bit the hand of PW34 according to PW26 before he was put in a police vehicle and taken to the police station
It was suggested to PW 34 ill cross examination that Henry was beaten by the police on or after 1041975 which has no doubt been denied by him
It is not improbable that Henry was roughed up and given some beating by the police when he tried to escape from the hold of PWs 26 and 34 before he was forcibly put into the police vehicle and taken to the police station resulting in some injury to his person
It has to be noted that Henry had not told the Judicial Magistrate PW3 that he was beaten by the police for causing him to make a confessional statement
It is not possible to hold that Sunil s confessional statement Ex7 was not voluntary from the mere fact that he had a prior occasion declined to make a confessional statement
The Judicial Magistrate PW3 would have been well advised if he had given more time for reflection to the accused than he has done
But it is not possible to reject the confessional statements merely because only three hours time had been given for reflection if they are 549 Otherwise acceptable
Therefore it is necessary to note what Henry And Sunil have stated in their confessions to find out whether intrinsically they are voluntary statements or tutored ones made under coercion
We will state in our own words what Henry and Sunil have stated in their confessional statements
Henry has stated in his confession thus I was arrested at Digboi at 730 pm
On 1041975
On 2631975 1 and Sunil and Anil went from Dibrugarh to Tinsukia
Boys were playing in a big pandal in Tinsukhia
I was waiting a little away from the pandal
Sunil went near the pandal and called a boy and after asking him for his father s name he brought the boy to me
Sunil offered sweets to the boy and asked him to follow me saying that I would give him many things
1 took the boy in a rickshaw and proceeded a furlong and Sunil brought a Taxi
The boy mentioned his name as Sanjay Agarwala
Sunil told me that the boy could be confined in an abandoned house in Bapapung and we went there
1 was proceeding ahead of Sunil and the boy
When we were proceeding towards the Bapapung oil field area I heard moaning sound
I looked back and found that Sunil had caught hold of the boy s neck and pulled him down
Sunil pressed the chest of the boy with his knee and also pressed his mouth
Ultimately Sunil strangled the boy to death
There was a hole which looked like a foxhole
Sunil kept the dead body of the boy inside the hole and filled it up with earth
Sunil tore off the shirt and pants of the boy and took them with him
After the murder we came to Digboi
Next morning l and Sunil came to Tinsukia
1 rang up the father of the deceased to demand a ransom of Rs 3 lakhs
Then at 3 pm we sent the pants and the shirt of the deceased to his father through a rickshaw wallah
We sent a letter along with the clothes
The letter was written by me in English
In the letter I mentioned that if the farther wanted the boy back he would have to give three lakhs of rupees The father was directed to give the money at the Jewel Hotel Dibrugarh
On 2931975 I sent a telegram to the father of the boy from Moran Post Office directing him to wait for our instructions
On 741975 1 and Sunil went to 550 Dibrugarh and spent the night there
On the next day T booked a call to the father af the boy
When the bell rang y Sunil held the receiver and demanded the money to be given positively on the next day but the father did not turn up
On 1041975 Sunil asked me to book a call
I held the receiver in a public phone booth and asked the exchange to book a call to Tinsukhia telephone No 159
In the mean time Sunil suspected something and asked me to leave the place and he disappeared
When I entered the sweepers line two plain clothed cyclists stopped me and took me to the police station
On my asking the deceased mentioned the name of his father as Chabil Das Agarwal or something like that
I have done all this at the instigation of Sunil
 Sunil has stated in his confessional statement thus About one and a half months ago I went to Naresh s shop to buy provisions as at fair price
Then Henry came there and said that we had not achieved anything in life by work and that if I follow the line shown by him I would get a lot of money overnight
When I asked him what the line was he said that we should kidnap sons of rich people and keep them for two or three days and demand money and return them after getting the money
There after on 2531975 I Henry and Anil went to Naresh s shop where Henry said that we should kidnap boys at Dibrugarh and he would bear all the expenses
We went to Dibrugarh on that day at 5 pm and stayed in Kusum Hotel
On the next day we went to Tinsukhia and spent the night in the railway station platform
After hunting the whole of next day Henry managed to take away a boy by inducement from a pandal at Tinsukhia and put him in a rickshaw and I followed them in another rick show
Henry sent Anil for a taxi and when it was brought 1 and Henry boarded it along with the boy near Shivadam and Anil went away
We got down near the gate of Bapapung oil field
While getting down Henry made the boy to stand up leaning against his own body
When the taxi left Henry took up the boy in his arms
As the boy s hands were hanging loose 1 asked what had happened
Henry told me that the boy had gone to sleep for ever and he 551 had finished him off
Looking closely I found a length of string tied round the boy s neck
Then Henry said that the boy s disposal should be arranged
Taking the boy we went to the cremation ground at Bapapung
Finding a hole there Henry took off the boy s pants and shirts and pushed the boy into it
I and Henry completed the burial by putting earth over the body
Next morning we went to Tinsukhia by train
In the platform Henry wrote a letter and placed the boy s pants with the letter and asked a rickshaw puller to deliver the packet to Chabil Marwari
Before kidnapping the boy Henry stated that after kidnapping he would demand three lakhs of rupees from his father
While getting down at Namrup Henry said that I would have to go to Moran on the next day with Ghatani
After reaching Sibsagar I went to Moran with Chatani on 2731975 and we met Henry and Anil
While I was taking tea in a hotel Henry sent a telegram from the post office to Chabil Agarwala informing him that he would let him know when and where the money should be delivered
Only then Henry said that boy was Sanjay and his father was Chabil Agarwala
In the Kusum Hotel Henry said that Chabil would deliver the money at the Jewel Hotel
Henary went into the Jewel Hotel and came back and said that it would not be convenient and that we should move off
On 641975 I and Henry went to Digboi and stayed there for the night
At 6 pm
On the next day Henry telephoned Chabil Marwari from the Digboi main post office informing him that on 841975 he would leave a letter at the gate of the Church situate behind that railway station and that he should collect that letter after leaving a sum of Rs 3 lakhs
At 3 pm Chabil came by car and collected the letter and left a letter written in Hindi at the gate
On 941975 or 104
1975 Henry wanted to telephone once again and at 6 pm I and Henry went to Digboi Post Office
While I waited near a pan shop Henry booked a call from that post office
The Post Master said that it would take about ten minutes to put the call through
Four or five policemen in plain clothes arrested and took away Henry
I hid myself in the cremation ground from where the police found me and arrested me 552 A perusal of these confessional statements Exs 6 and 7 shows that they are more or less exculpatory of the maker for Henry had attributed everything to Sunil and stated that he had done every thing at the instance of Sunil while Sunil had attributed the important roll in the crime to Henry
As pointed out by Mr Rajender Singh Senior Counsel appearing for complainant PW 23 this would not normally be the position if the confessions were the result of turoring by the police
The confessional statement of Henry is quite long while that of Sunil is much longer
As remarked by the learned Sessions Judge these confessions are full of facts and minute details which would not be there normally if the confessions are the result of tutoring or of compulsion
The circumstantial evidence relied upon by the trial court and the High Court lend assurance to the genuineness and voluntary nature of these confessions
They have no doubt been retracted but in view of the fact that they are generally corroborated by the circumstantial evidence in ample measure there is no satisfactory reason for the confessions not being accepted and acted upon
In these circumstances we agree with the learned Sessions Judge that the confessional statements of Henry and Sunil Exs 6 and 7 are voluntary and can be acted upon together with the circumstantial evidence for basing a conviction
We agree with the courts below that the corpus delecti has been correctly established by the prosecution to be that of Sanjay
The letter MEx 2 enclosed in the envelope MEx1 was found in the paper packet delivered by the rickshawman PW29 at the Tinsukhia Police Station on 2731975
The packet Contained inter alia the pair of shorts MEx 26 which have been identified by Sanjay s mother PW19 as those which he was wearing on the day of his disappearance
In that letter MEx2 addressed to Shri Chabil Das Siding it stated that if the ransom of Rs3 lakhs is not paid by 6 pm
On 2831975 at the Jewel Hotel the person who wrote that letter would kill
No doubt it is not mentioned in that letter as to who would be killed if the money was not paid within the time
The amount which was finally settled at Rs 40000 in the telephonic conversation which PW23 I ad from some caller from Digboi on 841975 had not been paid
In the confessional statements Exs 6 and 7 it is stated that Sanjay was killed though the manner the place and the hands which killed him are mentioned differently
Pursuant to the confessional 553 statement Ex33 admissible portion of Henry offering to show the place where the dead body of the boy had been buried some skeletal remains including the skull which have been later found to be that of a nine or ten years old human being were recovered from a pit or hole situate by the side of hillock in the Bapapung oil field area
Those skeletal remains were sent by the Medical Officer PW37 duly packed in the presence of the Judicial Magistrate PW3 to the Forensic Science Laboratory Gauhati
The Assistant Director Biology Section of that laboratory PW 27 obtained some photographs of Sanjay with their negatives from the boy s family through the police
After performing the superimposition test with Sanjay s enlarged photograph MEx59 the Scientific Officer of the Photography Section of that laboratory PW28 found the skull MEx 48 and the photograph MEx
59 of Sanjay to be of the same person
Ex27 is his report
In these circumstances we think that there is no reason to disagree with the findings of the courts below that the corpus delecti recovered from the place pointed out by Henry as per his confessional statements Ex33 has been proved to be that of Sanjay who had disappeared from the pandal at the temple in Tinsukhia town in the evening of 2631975
We agree with the courts below and find that the prosecution has proved beyond all reasonable doubt that Sanjay who was about nine years old at the time of his disappearance had been kidnapped and murdered
The case rests purely upon circumstantial evidence there being no direct evidence about the kidnapping and other offences alleged
The case of the prosecution is that all the four accused stayed at the Kusum Hotel on 2431975 as shown by the entries in the register of that hotel MEx10 and that Henry and Sunil were together in the pandal at the Shiva temple in Tinsuk hia town in the forenoon and evening of 263 1975
On the basis of this circumstance and the confessional statements the prosecution has sought to establish its case of conspiracy against the accused
In his confessional statement Ex7 Sunil had stated that when he went to Naresh s shop about one and a half months prior to 1841975 for buying provisions at fair price Henry cam there and told him that they had not achieved anything in life by work and that if he would follow the line shown by him he would get a lot of money overnight that when he asked Henry about what that line was he told him that they should kidnap sons of rich people and keep them for two or three days and demand money as ransom and return 554 them after getting the money and that thereafter on 253
1975 he went along with Henry and Sunil to Naresh s shop where Henry stated that they should kidnap boys at Dibrugarh and he would meet all the expenses
He has also stated that Henry told him at the Kusum Hotel that Chabil PW 23 would deliver the money at the Jewel Hotel
He has mentioned about the presence of Anil and Naresh on some other occasions also in his confessional statement
In his confessional statement exhibit 6 Henry has made repeated reference to Sunil but only once to Anil and that is that he went along with Sunil and Anil from Dibrugarh to Tinsukhia on 2631975
There is no other evidence about the conspiracy
We agree with the High Court that the evidence adduced by the prosecution is not sufficient to prove that charge
Mr Rajender Singh learned Senior Counsel who appeared for the complainant did not advance any argument regarding the charge of conspiracy
The admitted that there is no evidence against Anil and Naresh except their retracted confessions and that they may not be sufficient to prove any of the charges against them
In these circumstance we find no satisfactory reason to interfere with the conclusion of the learned Judges of the High Court that the charge of conspiracy against all the four accused and the other charges against Anil and Naresh have not been proved satisfactorily
The circumstances found by the trial court and the learned Judges of the High Court to have been proved satisfactorily against Henry are these 1 His presence along with Sunil in the pandal at the Shiva temple in Tinsukhia town in the forenoon and afternoon of 231975 his offer of sweets to Sanjay and other boys PWs 12 and 13 during that time his calling Sanjay when he was moving away from the pandal with his sister PW 21 with an offer of more sweets to him and his continued stay in the pandal along with Sunil and Sanjay even after PWs 12 13 and 21 left the place the last of them at about 530 pm 2 Receipt at the Tinsukuia Police Station on 2731975 of the packet containing inter alia the pair of shorts MEx 26 and the letter MEx
written in English and addressed to Shri Chabil Das Siding demanding a ransom of Rs 3 lakhs for the return of Sanjay 555 by 6 pm
On the next day at the fixed place on pain of murder of the boy in case of default
The shorts M exhibit 26 have been identified by Sanjay s mother PW 19 to be those which Sanjay was wearing on the day of his disappearance
The handwriting expert PW 1 has opined in his report exhibit 2 on a comparison of the hand writing contained in M exhibit 2 with the speciman hand writing and signatures of Henry MExs
11 to 14 obtained by PW 38 at Digboi Police Station that MEx
2 is in the hand writing of Henry
3 Receipt of the telegram MEx 13 by PW23 on 303
1975 to the effect I am not satisfied with your performance
Last chance for transaction
If you want your item await instructions
 MEx3 the original telegram was handed over to the Post Master Moran PW9 on 2931975 by Henry who has been identified by PW9 in the test identification parade held by PW 2 as well as in the court during the trial
The hand writing expert PWI has found MEx3 to be in the hand writing of Henry in his report MExl
4 On 3131975 PW23 had received the bearing envelope MEx6 containing the letter MEx7 written in Hindi
The Hindi writing in exhibit
M7 has not been proved to be in the hand writing of any of the accused but the hand writing expert PW I has found the address on the envelope MEx6 to be in the hand writing of Henry in his report MEx2
5 On 84 1975 PW 23 had received a telephone call from Digboi asking him if he had received the letter and when he answered in the affirmative he was asked by the caller to come to Digboi if he wanted his son back
In that conversation the amount to be paid by PW 23 as ransom for return of his son was fixed at Rs 40000 and he was told by the caller that he should come to the gate of the Church at Digboi where he would find a letter underneath a stone and that he should act according to the contents of that letter
Accordingly PW 23 and others went by a car and 556 PW 23 proceeded towards the gate of the Church alone and found the letter MEx 5 written in English capital letters
That letter which has been recovered by the police has been found by the hand writing expert PW t to be in the hand writing of Henry in his report MEx 2
6 On 1041975 at about 7 or 730 pm
Henry had booked a call from Digboi Public call office to Tinsukhia telephone No 159 relating to PW 23 and was waiting outside for the call to materialise
Then he was point ed out by the public telephone call office employee PW33 to the police who were keeping a watch in plain clothes
At the instance of the Sub Inspector of police PW 24 the constables P Ws 26 and 34 caught hold of Henry when he tried to run away from the place
In the process he kicked PW 34 and bit one of his fingers
However he was over powered and apprehended
As soon as PW 26 grabbed him he said I do not know about this matter He was taken from I here by a police vehicle to the police station
This is suspicious conduct on the part of Henry
7 On 1041975 When interrogated by the Investigating Officer Henry made
a statement exhibit 33 admissible portion offering to show the place where the dead body of the boy had been buried
On the next day Henary took the police party and others including the Political Officer and Executive Magistrate PW 38 to a place situate by the side of a hillock in the ONGC oil field area of Bapapung
From a mound from which earth had been disturbed and from the surrounding area some skeletal remains including the skull bone MEx 48 were recovered by the police
The skull bone MEx
48 has been found by the super imposition test conducted by the experts PWs 27 and 28 of the Forensic Science Laboratory Gauhati to be the skull bone of Sanjay as per PW 28 s report Ex27 8 Henry has been identified in the test identification parade held by the Judicial Magistrate PW 2 on 3041975 557 by 12 witnesses without any mistake and on 441975 by the Post Master Moran PW 9 without any mistake
Some of the witnesses who identified Henry in the test identification parade as well as in the court are PWs10 14 15 17 18 26 and 29
The above are very strong circumstances which can safely be relied upon
They form a complete chain pointing unerringly to the guilt of Henry and are inconsistent with his innocence
We were taken through the evidence by the learned Counsel for the parties and we also perused the summary of the evidence given by the learned Sessions Judge in paras 13 to 13 43 of his judgment
We do not think it necessary to deal with the evidence of the witnesses in detail as we agree with the courts below in regard to these circumstances
Accordingly we agree with the courts below that Henry s guilt has been proved by the prosecution satisfactorily beyond all reasonable doubt in respect of all the charges framed against him except the one under section 120B IPC 
As regards Sunil there is the evidence of PWs 14 15 and 21 about his presence in the pandal at the Shiva temple in Tinsukhia town in the forenoon and evening of 2631975
The pujari of the temple PW 14 has identified Henry and Sunil as the persons who were present in the pandal on 263 1975 correctly both in the test identification parade held by the Judicial Magistrate PW 2 and in the court
PW 15 a businessman of Tinsukhia who had gone to the temple on 2631975 also has identified Henry and Sunil both in the test identification parade held by PW 2 as well as in the court as the men who were standing near a bamboo post of the pandal when Sanjay and other boys were playing nearby
He learnt on the next day about Sanjay missing
Sanjay s elder sister PW 21 who went to fetch him from the pandal at about 5 or 530 pm on 2631975 has stated in her evidence that Henry and Sunil both of whom she has identified correctly in the test identification parade held by PW 2 as well as in the court were present in the pandal when Sanjay and other boys including PW 12 and 13 were playing
When she called Sanjay to go home with her one of those two men called the other as Driver  and asked him to get chocolates
Then PW 21 left the place along with Sanjay but after they had covered some distance one of the men called Sanjay by his name and said that he would give him chocolates
Then Sanjay asked PW 21 to go ahead and inform his mother that he would came in a short 558 while
So PW 21 had left the place leaving Sanjay behind
She has pointed out that it was Henry who sent Sunil to fetch chocolates
There is no reason for not accepting the evidence of these three witnesses PWs 14 15 and 21 about the presence of Sunil along with Henry in the pandal at the Shiva temple in Tinsukhia town on 2631975 when Sanjay was playing there with other boys PWs 12 and 13
There is also no reason for not accepting the evidence of PW 21 that Henry called Sanjay when he was moving away along with her back to the place saying he would give him chocolates that he called Sunil as Driver  a few minutes earlier and asked him to get chocolates and that PW 21 left Sanjay behind as desired by him and went away to her house at about 530 pm on the day of Sanjay s disappearance
Sunil has been identified by 6 witnesses in all without any mistake
There is also the evidence of PW41 the then officer in charge of Sibsagar Police Station that he arrested Sunil on 1441975 from a house in Sibsagar town cremation ground after a long chase and that he was until then hunting for him in vain from 1141975
He has stated that Sunil started to flee as soon as he saw him and that he succeeded in catching him after giving him a chase 1 12 or 2 furlongs
In his confessional statement Ex7 Sunil has admitted his presence with Henry in the pandal at Tinsukhia on 2631975 and his arrest from the cremation ground on 14 41975
There are some other circumstances brought out in the evidence and his confessional statement extracted supra pointing to his guilt unmistakably
Mr Rajender Singh learned Counsel for the complainant submitted that circumstantial evidence against Sunil is practically the same as in the case of Henry except that no recovery has been made at his instance and that there is nothing on record by way of his hand writing unlike the case of Henry
Mr CB Singh learned Counsel who appeared for Sunil as amicus curiae submitted that having regard to Henry s letter exhibit 2 in which he had stated that he would kill the victim if the ransom amount is not paid by 6 pm
On the next day it is probable that Henry might have killed Sanjay
He submitted that there is no satisfactory material on record to show that Sunil either did anything for killing Sanjay or that he shared the intention of Henry to kill the boy
He further submitted that Sunil s intention as reflected in his confessional statement exhibit 7 was only to kidnap and keep the boy for two or three days and send him back after collecting the 559 ransom
Having regard to all the circumstances of the case we are inclined to accept this submission of Mr Singh as being most probable and reasonable
We hold that the offence proved against Sunil is only kidnapping of Sanjay with intent to secretly and wrongfully confine him an offence punishable under section 365 IPC Henry had nothing to say when he was examined by the the learned Sessions Judge on the question of the sentences to be awarded to him except that he intended to file an appeal in the High Court
The learned Sessions Judge has observed that the crimes committed by Henry are heinous and he had held Sanjay for ransom and that lt is a fit case in which the extreme penalty of the law is called for as regards Henry
Accordingly he sentenced Henry to death under s302 read with s 34 IPC imprisonment for life under section 364 read with s34 IPC rigorous imprisonment for seven years under section 201 read with s34 IPC and rigorous imprisonment for five years under section 387 read with section 34 IPC and directed the sentences to run concurrently
The learned Judges of the High Court have agreed completely with reasons given by the learned Sessions Judge for awarding the sentence of death to Henry and they have confirmed all the sentences awarded to him and accepted the death sentence reference relating to him as mentioned above
We are of the opinion that the offences committed by Henry the originator of the idea of kidnapping children of rich people for extracting ransom ate very heinous and pre planned
He had been attempting to extract money from the unfortunate boy s father PW 23 even after the boy had been murdered by making the father to believe that the boy was alive and would be returned to him if he paid the ransom
In our opinion this is one of the rarest of rare cases in which the extreme penalty of death is called for the murder of the innocent young boy Sanjay in cold blood after he had been kidnapped with promise to be given sweets
We therefore confirm the sentence of death and the other sentences awarded to Henry by the High Court under sections 302 364 201 and 387 IPC and dismiss Criminal Appeal No 545 of 1982 filed by him
We allow Criminal Appeal No 209 of 1983 filed by Chabil Prasad Agarwala PW 23 against the acquittal of Sunil Anil and Naresh in part and convict only Sunil under s365 IPC for having kidnapped Sanjay in order to secretly and wrongfully confine him and sentence him to undergo rigorous imprisonment for seven years and dismiss that appeal in other respects
We reject Criminal Appeal No210 of 1983 filed by the 560 State of Assam against the rejection of the death sentence reference in regard to Sunil and dismiss Criminal Appeals Nos 212 and 213 of 1983 filed by the State of Assam against the acquittal of Naresh in Criminal Appeal No25 of 1981 and of Anil in Criminal Appeal No 24 of 1981 both on the file of the High Court and allow Criminal Appeal No211 of 1983 filed by the State of Assam against the acquittal of Sunil in Criminal Appeal No 19 of 1981 on the file of the High Court as indicated in Criminal Appeal No209 of 1983 and dismiss it in other respects
The sentences of imprisonment awarded to Henry by the trial court and confirmed by the High Court and by us shall run concurrently and merge with the sentence of death
MLA Criminal Apreal Nos
54582 21083 212 1383 disnnssed and Criminal Appeal No 209 Allowed


Summary:
The deceased a boy of 9 was playing with the children in the Pandal near a Shiva Temple on 26th March 1975 which was a day of Holi  festival
The prosecution s case is that accused Nos 1 and 2 kidnapped and murdered the deceased with a view to extract ransom from his father
Accused No 1 was arrest d on 10th April 1975 and on 11475 he showed the place where the dead body of the deceased had been buried
His interrogation also led to the arrest of other three accused Nos 2 3 and 4
All the accused made their confessional statements on different dates before a Judicial Magistrate
The four accused were subjected to test identification in the parade held by the Second Class Magistrate PW 2 on 3041975 and 491975
Accused No
I was identified by 12 witnesses without any mistake while accused No 2 was identified by six witnesses without any mistake and accused No 3 was identified by two witnesses without any mistake
In their statements recorded under section 313 of the Code of Criminal Procedure all the accused retracted their confessional statements and denied all the circumstances appearing against them in the evidence
The learned Sessions Judge on a consideration of the evidence convicted all the four accused and sentenced accused No I and accused No 2 to death under section 302 read with section 34 IPC for the murder of the deceased and to imprisonment for life under section 364 read with section 34 IPC and rigorous imprisonment for seven years under section 201 read with section 34 IPC and those two accused Nos 3 and 4 to rigorous imprisonment for five years each separately under section 120B and section 387 read with section 34 IPC
The sentences awarded to all the four accused were directed to run concurrently
On appeals by the four accused
the High Court rejected the confessional statements of the four accused as not being voluntary or acceptable and held that the circumstantial evidence against accused No I taken cumulatively forms a chain so complete that there is no escape from the conclusion that the crime was commit 534 ted by him and none else and that each of the circumstances established against him is incriminating and they cumulatively prove the complicity of accused No1 in the kidnapping and murder of the deceased
The High Court found that the evidence is not satisfactory to prove the offence of conspiracy under s120 IPC against accused No 1 and acquitted him of that charge but agreed with the trial court in regard to the finding on the other charges and held him guilty under ss364387 302 and 201 IPC The High Court thus allowed the appeal of accused No I in part only as regards his conviction under section 120B IPC and dismissed it in other respects and accepted the death sentence confirmation case against him and confirmed the sentence of death as well as the other sentences awarded to him by the trial court except under s120B I PC As regards accused No2 apart from the confession which was rejected by the High Court it found that there was no other evidence except the evidence let in to prove his presence with accused No I in the temple and the pandal in the morning and evening of 2631975 and it held that it is not sufficient to sustain his conviction and that as regards the other two accused No3 and 4 there is no evidence except their retracted confessions which were rejected by it
In that view the High Court acquitted accused Nos 2 3 and 4 of all the charges framed against them and rejected the death sentence confirmation case against accused No 2
In appeals to this Court by accused No I and the State and the father of the deceased the Court
 HELD 1
It has to be noted that accused No 1 had not told the Judicial Magistrate PW3 that he was beaten by the police for causing him to make a confessional statement
It is not possible to hold that accused No 2 s confessional statement exhibit 7 was not voluntary from the mere fact that he had on a prior occasion declined to make a confessional statement
The Judicial Magistrate PW 3 would have been well advised if he had given more time for reflection to the accused than he has done
But it is not possible to reject the confessional statements merely because only three hours  time had been given for reflection if they arc otherwise acceptable
Therefore it is necessary to note what accused Nos
I and 2 have stated in their confessions to find out whether intrinsically they are voluntary statements or tutored ones made under coercion
A perusal of the confessional statements of accused Nos 1 and 2 shows that they are more or less exculpatory of the maker for accused No 1 had attributed everything to accused No 2 and stated that he had done every thing at the instance of accused No2 while accused No 2 had attributed the important role in the crime to accused No 1
This would not normally be the position if the confessions were the result of tutoring by the police
The confessional statement of accused No 1 is quite long while that of accused No2 is much longer
As remarked by the learned Sessions Judge these confessions are full of facts and minute details which would not be there normally if the confessions are the result of tutoring or of compulsion
Pursuant to the confessional statement Ex33 admissible portion of accused No 1 offering to show the place where the dead body of the boy had been buried some skeletal remains including the skull which have been later found to be that of a nine or ten years old human being were recovered from a Pit or hole situate by the 535 side of a hillock in the Bapapung oil field area
There is no reason to disagree with the findings of the courts below that the corpus delecti recovered from the place pointed out by accused No 1 as per his confessional statement exhibit 33 has been proved to be that of the deceased who had disappeared from the panda I at the temple in Tinsukhia town in the evening of 263
I 975
The circumstantial evidence relied upon by the trial court and the High Court lend assurance to the genuineness and voluntary nature of these confessions
They have no doubt been retracted but in view of the fact that they are gene rally corroborated by the circumstantial evidence in ample measure there is no satisfactory reason for the confessions not being accepted and acted upon In these circumstances the learned Sessions Judge was right in holding that the confessional statements of accused Nos 1 and 2 are voluntary and can be acted upon together with the circumstantial evidence for basing a conviction
552F H 553 A C3 2
The case rests purely upon circumstantial evidence there being no direct evidence about the kidnapping and other offences alleged
There is no evidence against accused Nos 3 and 4 except their retracted confessions and they may not be sufficient to prove any of the charges against them
There is also no satisfactory reason to interfere with the conclusion of the learned Judges of the High Court that the charge of conspiracy against all the four accused and the other charges against accused Nos 1 and 2 have not been proved satisfactorily
553F554D E 3
i The circumstances found by the trial Court and the High Court against accused No I are very strong and can safely be relied upon
They form a complete chain pointing unerringly to the guilt of accused No I and arc inconsistent with his innocence Accordingly accused No I guilt has been proved by the prosecution satisfactorily beyond all reasonable doubt in respect of all the charges framed against him except the one under section 120B l
PC 547C D 3 ii The offences committed by accused No 1 the originator of the idea of kidnapping children of rich people for extracting ransom are very heinous and pre planned
It had been attempting to extract money from the unfortunate boy s father PW 23 even after the boy had been murdered by making the father to believe that the boy was alive and would be returned to him if he paid the ransom
Therefore this is one of the rarest of rare cases in which the extreme penalty of death is called for the murder of the innocent young boy Sanjay in cold blood after he had been kidnapped with promise to be given sweets
Therefore the sentence of death and the other sentences awarded to accused No 1 by the High Court under sections 302 364 201 and 387 IPC are confirmed and Criminal Appeal No 545 of 1982 filed by him is G dismissed559E G 3
iii As regards accused No 2 there is the evidence of PWs 14 15 and 21 about his presence in the pandal at the Shiva temple in Tinsukhia town m the forenoon and evening of 2631975 There is no reason for not accepting the evidence of these three witnesses
14 15 and 21 about the 536 presence of accused No 1 in the pandal at the Shiva temple in Tinsukhia town on 2631976 when the deceased was playing there with other boys PWs 12 and 13
There is also no reason for not accepting the evidence of PW 21 that accused No 2 called the deceased when he was moving away along with her back to the place saying he would give him chocolates that he called accused No 2 as Driver  a few minutes earlier and asked him to get chocolates and that PW 21 left the deceased behind as desired by him and went away to her house at about 530 pm
On the day of the decease s disappearance
He has been identified by 6 witnesses in all without any mistake
There is also the evidence of PW 41 the then officer in charge of Sibasagar Police Station that he arrested accused No 2 on 144
1975 from a house in Sibasagar town cremation ground after a long chase and that he was until then hunting for him in vain from 1141975
He has stated that he started to flee as soon as he saw him and that he succeeded in catching him after giving him a chase for 112 or 2 furlongs
In his confessional statement exhibit 7 accused No 2 has admitted his presence with accused No 1 in the pandal at Tinsukhia on 2631975 and his arrest from the cremation round on 14
1 1975
There are some other circumstances brought out in the evidence and his confessional statement extracted supra pointing to his guilt unmistakably
But there no satisfactory material on record to show that accused No 2 either did anything for killing the deceased or that he shared the intention of accused No 1 to kill the boy
It appears that accused No2 s intention as reflected in his confessional statement exhibit 7 was only to kidnap and keep the boy for two or three days and send him back after collecting the ransom
Having regard to all the circumstances of the case the offence proved against accused No 2 is only kidnapping of Sanjay with intent to secretly and wrongfully confine him an offence punishable under section 365 l
PC 559B H 559A Therefore Criminal Appeal No 209 of 1983 filed by the father of the deceased PW 23 against the acquittal of accused Nos 2 3 and 4 is allowed in part and only accused No 2 is convicted under section 365 IPC for having kidnapped Sanjay in order to secretly and wrongfully confine him and he is sentenced him to undergo rigorous imprisonment for seven years and it is dismissed in other respect
Criminal Appeal No 211 of 1983 is allowed as indicated in Criminal Appeal No 209 of 1983 and Criminal Appeals No 210 212 and 213 of 1983 are dismissed
559G H 560AB