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PETITIONER: HENRY WESTMULLER ROBERTS, ETC. ETC.

       Vs.

RESPONDENT: STATE OF ASSAM & ORS. ETC.

DATE OF JUDGMENT27/03/1985

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR  823            1985 SCR  (3) 533  1985 SCC  (3) 291        1985 SCALE  (1)681

ACT:      Code of  Criminal Procedure  1973  s.  164-Confessional Statement- Time  for Reflection  to the    accused-How  much should be  given-Magistrate only  three hours to accused for reflection-Whether  it   is  insufficient   and  makes   the statement   inadmissible   in   evidence-Held   Confessional Statement cannot  be rejected  merely because  only 3 hours’ time is given for reflection if it is otherwise acceptable

HEADNOTE:      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 11.4.75 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, P.W.  2 on 30.4.1975 and 4.9.1975. 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 s. 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 s. 302 read with section 34 I.P.C. for  the murder  of the  deceased and to imprisonment for life  under s.  364 read  with s. 34 I.P.C. and rigorous imprisonment for  seven years  under s.  201 read with s. 34 I.P.C. and  those two  accused Nos.  3  and  4  to  rigorous imprisonment for  five years  each separately  under s. 120B and s.  387 read  with s. 34 I.P.C. The sentences awarded to all   the four accused were directed to run concurrently. On appeals by  the four  accused. the  High Court  rejected the

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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  No.1 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 s.120  I.P.C. 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 ss.364,387,  302 and  201 I.P.C.  The High Court thus  allowed the appeal of accused No. I in part only ’as  regards   his  conviction  under  s.  120B  I.P.C.  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 s.120B I P.C. As regards accused No.2,  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  26.3.1975  and  it  held  that  it  is  not sufficient to sustain his conviction and that as regards the other two  accused No.3  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,  P.W.3 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 Ex. 7 was not voluntary from the mere fact that he had on  a prior  occasion declined  to make  a  confessional statement. The  Judicial Magistrate,  P.W. 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 No.2 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  No.2 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,  Ex.33 (admissible portion)  of accused  No. 1 offering to show the place where  the dead  body of the boy had been buried, some

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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, Ex. 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  26.3. 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. [553F;554D-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  s.  120B  l.P.C. [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,  P.W. 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  ss. 302,  364, 201 and 387 I.P.C. are confirmed and  Criminal Appeal  No. 545 of 1982 filed by him is G  dismissed.[559E-G]      3. (iii)  As  regards  accused  No.  2,  there  is  the evidence of  P.Ws. 14,  15 and  21 about his presence in the pandal at  the Shiva temple in Tinsukhia town m the forenoon and evening  of  26.3.1975,  There  is  no  reason  for  not accepting the  evidence of  these three witnesses. P.Ws. 14. 15 and 21   about the 536 presence of  accused No. 1 in the pandal at the Shiva temple

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in Tinsukhia town on 26.3.1976 when the deceased was playing there with  other boys,  P.Ws. 12  and 13.  There is also no reason for  not accepting  the  evidence  of  P.W.  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 P.W. 21 left the deceased behind as desired by him  and went away to  her house  at about  5.30 p.m.  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 P.W. 41, the then officer in charge of Sibasagar Police Station  that he arrested accused No. 2 on 14.4. 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 11.4.1975.  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  11/2 or  2 furlongs.  In his confessional statement, Ex. 7 accused No. 2 has admitted his presence with  accused No.  1 in  the pandal at Tinsukhia on 26.3.1975 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 No.2’s  intention as  reflected in his confessional statement,  Ex. 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 s. 365 l.P.C. [559B-H; 559A]      Therefore, Criminal Appeal No. 209 of 1983 filed by the father of  the deceased,  P.W. 23  against the  acquittal of accused Nos. 2, 3 and 4 is allowed  in part and only accused No. 2, is convicted under s. 365 I.P.C, 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]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 545 of 1982, 209, and 210-213 of 1983.      From the  Judgment  and  Order  dated  13.9.82  of  the Gauhati High Court in Crl. Death Ref No 1/8l and Crl. Appeal No. l9(j), 24 & 25 of 1981.      JD. Jain and Mrs. K. Kochar for the Appellants.      SK. Nandy for the State of Assam. 537 Rajendra Singh,  M/s. M.L. Lahoty, VB.Joshi Hrishikesh Roy & A R.  Kathahzarika for the appellants in Criminal Appeal No. 209 of 1983.      CS. Vaidyanathan for the respondents.      SC. Patel  for the  complainant in  Criminal Appeal No. 545 Of 1982.      BP. Singh  for the  respondents in Criminal Appeal Nos. 210-213 of 1983.

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    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  s. 302 read with s. 34 I.P.C. for the  murder of  a  boy  Sanjay),  alias  Gettu  Agarwala (hereinafter referred to as Sanjay), and to imprisonment for life under  s. 364  read with  s.  34  I.P.C.  and  rigorous imprisonment for  seven years  under s.  201 read  with s 34 I.P.C. 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 s. 120B and s.  387 read  with s. 34 I.P.C. 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  s. 120B  l.P.C.  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 ss. 302,  364, 201  and 387  I.P.C. and  not guilty under s. 120B l.P.C.  and maintained the sentence awarded to Henry by the Sessions  Court except in regard to the offence under s. 120B l.P.C. 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 s. 302, 364, 201 and  387 I.P.C.  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  s. 120B l.P.C. 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, P.W. 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

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situate  adjacent   to  his  shop  with  his  wife  Lilavati Agarwala,  P.W.  19  and  seven  children  including  Sumita Agarwala, P.W. 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 26.3.1975.  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 9.30 a.m. stayed on  in the  temple till  about 12.30 p.m. 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 5.30 p.m. playing with some children including Anil Kumar Chetri, P.W. 12  and Nirmal  Kumar Jain,  P.W. 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 P.W.  12 and  Sanjay and asked them for  the names  of their  fathers  which  they  readily mentioned. Soon  thereafter Sanjay’s  elder sister,  P.W. 21 aged about  10 or  11 years  came to the pandal in search of Sanjay as  directed by her mother, P.W. 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 P.W.  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, P.W. 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. P.W.  13 left  the pandal  a little later while Henry, Sunil and Sanjay remained in the pandal at about 6 or 6.30 p.m.      Sanjay did  not return  home. His  father, P.W.  23 who came home  at about  7 p  m. On  that day went out again and returned home  only at  about 3  a.m. On 27.3.1975. P.Ws. 19 and 21  told P.W.  23 that  Sanjay had  not  returned  home. Thereafter, P.W.  23 and  his men  went  out  searching  for Sanjay. Ramabatar  Agarwala, P.W.  20, an  accountant in the partnership business of P.W. 23 and Hanuman Prasad Agarwala, P.W. 35  informed the  Inspector of Police, Tinsukhia Police Station, P.W. 42 at about 3.30 a.m on 27.3.1975 about Sanjay missing  since  the  previous  day.  At  about  12  noon  on 27.3.1975 when  P.W. 23  and others including P.W.42 were in P.W. 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.  P.W. 23  informed P.W. 42 about this demand then and there  and later  sent a  written complaint,  Ex. 17  to Tinsukhia Police  Station at  about 4  30 p.m.  On the  same day.A few  minutes before  P.W. 42  registered a case on the basis  of   that  report,   Brahamadeo  Rai,   P.W.  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.  P.W. 42 opened the packet and found it  to contain  a pair of a small boy’s shorts, M. Ex. 26, two  martons, M.  Ex. 28  and  an  envelope,  M.  Ex.  1 containing the  letter, M.  Ex. 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  p.m. (28).  Do not inform

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police. Come  alone. If  not I kill. If no money take loan." The address  on the  envelope, M. Ex. I and the body  of the letter, M. Ex. 2 have been found by the hand-writing expert, P.W. 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, P.W.  19 identified  the shorts, M. Ex. 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  3.1975 P.W.  23 received the telegram, M. Ex. 13 addressed to  "Chabin Das,  Siding T.S." 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 P.W.  35 and  others about  it.  Ex.  3  is original of  that telegram   seized  by the  police from the lost Master, Moran Post Office, P.W. 9. On 31.3.1975 Pay. 23 received the  bearing envelope,  M. Ex.  26  containing  the letter, M.  Ex. 7 written in Hindi. The hand-writing expert, P.W. 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 8.4.1975  P.W. 23  received a  telephone  call  from Digboi  asking  him  whether  he  had  received  letter  and telegram. When P.W 23 answered the caller in the affirmative he asked  P.W. 23  to come  to Digboi  if he wanted back his son. P.W.  23 told  the  caller that he could not pay such a huge amount.  It was  ultimately agreed  over the phone that P.W. 23  should pay a ransom of Rs. 40,000/. The caller told P.W. 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.  P.W. 23  and others  accordingly went there and found a plastic cover underneath a stone 541 near the  gate, containing  the letter,  M. Ex. 5 written in English   capital letters.  The hand-writing  expert, P.W. I has found  M. Ex. 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 7.30 or 8 p.m. On 10.4 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, P.W. 33,  the Town Sub-Inspector  of  Police, P.W.  24  with help of  two constables  P.Ws. 26   and   34  arrested Henry near  that lt public call office. When interrogated  by  the Investigating   Officer,   P.W. 42 Henry made  a  statement, Ex.33 offering   to   show  the place where the dead body of Sanjay  had been buried.      On   11.4.1975 Henry  took the  police party  including the Assistant  Political Officer  and Magistrate, Kanta Das, P.W. 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,  P.W-  38  obtained specimen hand-writing   and signatures from Henry, M. Exs. l l to   14.  The Interrogation  of  Henry on 10.4 1975 led to the   arrest   of   the other  three accused Sunil, Anil and Naresh OD  11.4.1975 at  Sibsagar.   Exs.  15  to 17 are the

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specimen  hand-writings  of  Naresh obtained by the Judicial Magistrate, P.W.3 on 27.5.1975. Ex.2  is the  report  of the hand-writing expert, P.W.1 submitted  to  the Chief Judicial Magistrate, Dibrugarh  on 20.8.1975,  containing his opinion about the hand-writings.      The   Investigating Officer,  P. W.  43 who  had  taken over from  P.W.42 produced  Henry before  the Chief Judicial Magistrate,  Dibrugarh    on  12.4.1975  for  recording  his confessional   statement which he was in a mood to make, and it was  recorded by the  Judicial  Magistrate, P.W.3 on 12.4 1975 itself  after giving  him   some time  for  reflection. Sunil was arrested by  the  Inspector  of Police, 542 P.W.41   on   14.4.1975. Sunil,  Anil and Naresh made  their confessional   statements, Exs.  7, 8,  and 9  on  18.4.124, 1975,   19.4.1975  and  21.4.1975  respectively  before  the Judicial Magistrate, P.W.3.      The  medical  Officer,  P.W.37  packed  the  incomplete skeletal  remains  mentioned  above in the presence  of  the Judicial Magistrate,  P.W.3 and  sent them  to the  Forensic Science  Laboratory,     Gauhati   on  24.4.1975  under  the direction of  the Chief  Judicial Maistrate, Dibrugarh along with P.W.37’s  autopsy certificate  and  two photo graphs of Sanjay. The  Assistant Director,  Biology Section,  Forensic Science Laboratory,  Gauhti,   P.W.27   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  P.W.27 found  that  they related to a 9 to 10 years old boy.   By   making  super   imposition  P.W.27 concluded that the  skull   in  question could  have been the skull of Sanjay as  per his   enlarged   photographs.  Ex.26  is  the report of P.W.27. The Scientific Officer  of the  photograph Section  of  the  Forensic  Science  Laboratory,    Gauhati, P.W.28   performed the  super-imposition  experiment  of the photograph   of the  skull, M.Ex.48  and the  photo graph of Sanjay, M.Ex.   59 and found them to be of the same per son. Ex 27 is  the report of P.W.28.      The       four   accused   were   subjected   to   test indentification in   the   parade   held by the Second Class Magistrate,  P.W.2  on 30.4.1975 and 4.9.1975. In the parade held on  30.4.1975 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. Ex.5  is P.W.2’s report relating to  the proceedings  of 30.4.1975.  In  the  parade held   on 4.9.1975  Henry was  identified by  Rajender  Nath Sharma, P.W.9  and  Jiten Barua, P.W.25 without any mistake. Ex.3   is    the  report  relating  to  the  proceedings  of 4.9.1975.      In their  statements recorded  under s.313  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, P.W.3 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

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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  s. 313 Cr.P.C. that they are retracted.      But   the learned  Judges of  the High  Court  rejected all the  confessions  and  the evidence of P.Ws. 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   45,55,62 and 64 of their judgment and have  observed  that the  Judicial  Magistrate, P.W.3 had  failed to   act   properly   in giving only three hours  to   Henry  for   reflection  before   recording  his confession,   Ex.6 on 12.4.1975. They have further  observed that though   it is difficult to lay any hard and fast rule, in   Serva Singh  Rattan Sing  v. State  of Punjab(1) 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, Ex.6  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,   Ex.7  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, P.W.  3 on 18.4.1975 and that it is  not voluntary  and   therefore, it is invalid in law. They have  considered the  confession,   Ex.8, of   Anil  in paras 77  and 79  of their  judgment and  have  observed hat the Judicial Magistrate, P.W.3 who recorded it on  19.4.1975 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, P.W.  3 on  21.4.1975 in  paras 84, 87 and 88 of their judgmemt  and found  that   it   has been  made due to duress and (1) AIR 1957 SC 637 544 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 P.Ws. 12 to 15 and 21 about the   presence   of Henry   and   Sunil in the pandal at the temple before  Sanjay  had disappeared  on  26.3.1975.  They accepted the  evidence  of  the rickshawman, P.W. 29 who has identified Henry  in the  test identification parade held by P.W.2  as the man who had left behind in  his  rickshaw  the packet   containing   Sanjay’s shorts, M.Ex.26  and  certain other things   including   the  letter, M.Ex.2,  enclosed in the   envelope, M.Ex.1   which he had produced at the police station   on  27.3.1975, and  found  on  the evidence of the hand-writing  expert,  P.W.I .Ex.2 to be in the hand-writing of Henry.      On the  evidence of  the Post  Master, Moran, P.W.9 Who has identified  Henry in the test identification parade hold by  P.W.2 as the person who landed over the telegram, Ex. 3, copy whereof,  Ex.   13 had  been received  by P.W.  23, the learned   Judges   found that  Henry had given the telegram,

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Ex. 3.  On the evidence of  the hand-writing   expert,  P.W. ] they found that Ex. 3  is  in  the hand-writing  of  Henry and they held that Ex. 3  connects  Henry with the crime.      The learned  Judges found  on the  evidence of  P.W. 23 that he   had received a bearing letter, M. Ex. 7 written in Hindi   on 31.   3.1975  enclosed in the envelope, M. Ex. 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. Ex. 6,  of  that letter  is proved by the hand- writing expert,  P.W. 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  P.W. 23 about   the  telephonic conversation  he  had  with  some caller   from Digboi   at  about  8 or 8.30 p.m. On 8.4.1915 when  that  caller demanded  a ransom of Rs. 3 lakhs for the return of   Sanjay   and it was  ultimately agreed that P.W. 23 should  pay Rs. 40,000  for the  purpose.  They  accepted the prosecution   evidence   that  in accordance  with  that conversation P.W.  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 9.4.1975 and found the letter, Ex. 5 which has been found by   the hand-writing   expert,  P.W. 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  P.W.33 while  he was standing near  a pan-shop   in front of the public telephone call office  at  Digboi on 10.4.1975, waiting for the trunk- call booked  by him  at about  7 or  7.30 p.m on that day to Tinsukhia telephone  No. 159  to  mature and that he bit the constable, P.W.34  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 P.Ws. 14, 15 and   21  about the  identification of Henry and Sunil in the   test identification    parade  held  by  the  Judicial Magistrate, P.W.2   as  the persons  who were present in the pandal before  the   disappearance of  Sanjay on  26.3.1975, 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, Ex.  33 (admissible   portion) and found that the evidence of  P.Ws.27, 28  and 37,   agreeing with  the trial court, that  the skull bone recovered pursuant  to Ex. 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, P.W.2 except  the  evidence  of P.Ws.  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 P.W. 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

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         "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 s. 120R I.P.C. 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  ss.  364, 387, 302 and 201 I.P.C.  They   thus  allowed  his appeal  in  part  only as regards  his conviction    under    s.120B  I.P.C.    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 s. 120B I.P.C.      As regards  Sunil,  apart  from  the  confession,  Ex.7 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  26.3.1975  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,  Ex.8 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,  Ex.6 has   been   obtained  by coercion and suffers  from serious  infirmity. As   regards    Anil’s confession, Ex  8  they  have  observed  that  the  Judicial Magistrate, P.W.3  who had  recorded it  on  19.4.1975,  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,   Ex.9  they

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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, Ex.8 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,  P.W.3  who  had    recorded Exs.6 and   7  on 12.4.1975 and 18.4.1975  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 a.m. On 12.4,1975  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    Ex.6.    As regards   Sunil    also,    P.W.3      has  stated  that  he administered the caution as he did in the case of Henry when he was  produced before  him at 11.30 a.m. On  18.4.1975 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 Ex.7 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 P.W.3 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, Ex.  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,  P.W.33 pointed  him to the police  personnel in plain  clothes  and  that after  he was caught by the constables, P.Ws.26 and 34 as  directed by the Sub-Inspector  of Police,  P.W.24 he  bit  the  hand  of P.W.34 (according   to P.W.26) before he was put in a police vehicle  and taken  to  the police station. It was suggested to   P.W.   34   ill cross-examination   that   Henry    was beaten   by   the  police   on or after 10.4.1975, 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 P.Ws.  26 and  34 before he  was forcibly  put into  the police   vehicle  and

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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,  P.W.3 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, Ex.7 was  not   voluntary from  the mere  fact that he had a prior occasion  declined to  make a  confessional statement. The Judicial  Magistrate,   P.W.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 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 7.30  p.m.  On      10.4.1975.   On 26.3.1975   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  p.m. 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 29.3.1975  I sent  a  telegram  to  the      father   of   the boy  from Moran Post Office directing      him to  wait for  our instructions.  On 7.4.1975  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  10.4.1975  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

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    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 25.3.1975  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   p.m.   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 27.3.1975 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  6.4.1975 I      and Henry  went to  Digboi and  stayed there  for   the      night. At  6 p.m.  On the  next  day  Henry  telephoned

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    Chabil   Marwari from  the  Digboi  main  post  office,      informing him that on  8.4.1975 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 p.m. Chabil came by      car   and collected   the  letter  and  left  a  letter      written in  Hindi  at  the gate.  On 9.4.1975, or 10.4.      1975 Henry  wanted to  telephone  once again  and  at 6      p.m., 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,  P.W.  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  M.Ex.  2  (enclosed  in  the envelope, M.Ex.1)   was  found in the paper packet delivered by the  rickshawman, P.W.29 at the  Tinsukhia Police Station on 27.3.1975.  The packet   Contained inter alia the pair of shorts, M.Ex  26 which  have been  identified by    Sanjay’s mother, P.W.19 as those which he was wearing on  the day  of his disappearance.  In that  letter, M.Ex.2   addressed   to "Shri   Chabil Das, Siding", it stated that if the ransom of Rs.3 lakhs   is not paid by 6 p.m. On 28.3.1975 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.  40,000  in  the telephonic conversation  which P.W.23 I-ad from  some caller from Digboi  on 8.4.1975  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,   Ex.33 (admissible portion) of Henry offering to show the   place  where the  dead body  of the  boy had been

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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,  P.W.37 duly   packed in the presence  of  the  Judicial Magistrate, P.W.3 to  the Forensic  Science   Laboratory,   Gauhati. The Assistant Director,  Biology  Section  of  that  laboratory, P.W. 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,     M.Ex.59    the  Scientific  Officer  of  the Photography Section  of that  laboratory, P.W.28,  found the skull, M.Ex.  48 and  the photograph, MEx. 59  of Sanjay  to be of  the same  person. Ex.27  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  Ex.33  has been proved to be that  of Sanjay  who  had disappeared  from the pandal at the temple  in Tinsukhia  town  in the evening of 26.3.1975. 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 24.3.1975  as shown   by  the entries in the register of  that hotel,  M.Ex.10 and  that Henry  and Sunil were together  in the pandal at the Shiva temple in  Tinsuk- hia   town in  the forenoon and evening of 26.3 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, Ex.7  Sunil   had   stated that  when  he went to Naresh’s shop  about one  and a    half    months  prior  to 18.4.1975 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 25.3. 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 (P.W. 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, Ex.  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  26.3.1975.   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

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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 2(.3.1975 his offer           of sweets  to Sanjay and other boys, P.Ws.  12 and           13, during  that time;  his calling Sanjay when he           was  moving away  from the pandal with his sister,           P.W. 21  with an   offer   of more  sweets to him;           and his  continued stay in the  pandal  along with           Sunil   and Sanjay  even after P.Ws. 12, 13 and 21           left   the place,  the last  of them at about 5.30           p.m.      (2)  Receipt  at   the  Tinsukuia   Police  Station  on           27.3.1975, of the packet containing inter alia the           pair of  shorts, M.Ex.  26 and  the letter,  M.Ex.           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 p.m.  On the next day at the fixed place on           pain    of  murder of  the boy in case of default.           The shorts,  M. Ex.  26  have been  identified  by           Sanjay’s mother,  P.W. 19  to be    those    which           Sanjay     was     wearing  on   the  day  of  his           disappearance.   The  handwriting  expert,  P.W. 1           has opined  in  his  report,  Ex.    2,    on    a           comparison   of   the hand-writing contained in M.           Ex. 2   with    the  speciman    hand-writing  and           signatures of  Henry, M.Exs.  11   to  14 obtained           by P.W.  38 at  Digboi Police Station that M.Ex. 2           is  in the hand-writing of Henry.      (3)  Receipt of  the telegram,  M.Ex 13  by  P.W.23  on           30.3. 1975   to  the  effect  "I  am not satisfied           with  your     performance.    Last  chance    for           transaction.  If  you  want  your    item    await           instructions." M.Ex.3  the original  telegram  was           handed over  to the  Post Master,  Moran, P.W.9 on           29.3.1975 by  Henry who  has been   identified  by           P.W.9 in  the test  identification parade  held by           P.W. 2  as well  as in the court during the trial.           The hand  writing   expert, P.W.I has found M.Ex.3           to be in the hand-writing of Henry in  his report,           M.Ex.l.      (4)  On   31.3.1975  P.W,23  had received  the  bearing           envelope, M.Ex.6  containing  the  letter,  M.Ex.7           written in  Hindi. The   Hindi  writing  in Ex.M.7           has not  been proved to be in the  hand-writing of           any   of the  accused but the hand-writing expert,           P.W.  I  has found  the  address  on the envelope,           M.Ex.6 to  be   in   the  hand writing of Henry in           his report, M.Ex.2.      (5)  On   8.4   1975  P.W. 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 P.W. 23 as

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         ransom for  return of  his son  was fixed  at  Rs.           40,000 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,  P.W. 23  and others           went by  a car? and 556           P.W.  23  proceeded towards the gate of the Church           alone   and found  the  letter, M.Ex. 5 written in           English   capital   letters. That letter which has           been recovered  by the  police has  been found  by           the hand-writing  expert, P.W.  t  to  be  in  the           hand-writing  of Henry in his report, M.Ex. 2.      (6)  On   10.4.1975 at  about 7 or 7.30 p.m.. Henry had           booked a  call from  Digboi  Public call office to           Tinsukhia telephone   No.   159 relating  to  P.W.           23 and  was waiting  outside for   the   call   to           materialise.   Then   he was  point ed  out by the           public   telephone call   office  employee, P.W.33           to the police who were  keeping  a watch  in plain           clothes. At  the instance of the Sub-Inspector  of           police,   P.W. 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  P.W.           34 and  bit one  of his fingers. However,  he  was           over-powered   and apprehended. As soon as P.W. 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   10.4.1975    When   interrogated    by    the           Investigating Officer,  Henry made.  a  statement,           Ex. 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, P.W.  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,   M.Ex. 48 were recovered by the           police.   The   skull bone,   M.Ex.   48  has been           found by  the   super-  imposition  test conducted           by the  experts, P.Ws.  27 and  28 of the Forensic           Science Laboratory,   Gauhati to be the skull bone           of Sanjay as  per  P.W. 28’s report, Ex.27      (8)  Henry     has  been   identified   in   the   test           identification     parade  held  by  the  Judicial           Magistrate, P.W. 2 on 30.4.1975 557           by   12   witnesses without  any  mistake  and  on           4.4.1975   by   the Post   Master,  Moran,  P.W. 9           without any  mistake.  Some  of  the witnesses who           identified  Henry   in  the   test  identification           parade as  well as  in the  court are P.Ws.10, 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

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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  s. 120B I.P.C .      As regards  Sunil, there  is the  evidence of P.Ws. 14, 15 and   21  about his  presence in  the pandal at the Shiva temple   in Tinsukhia  town in  the forenoon  and evening of 26.3.1975.  The  pujari  of  the    temple,    P.W.  14  has identified Henry  and   Sunil   as   the persons   who  were present in  the pandal  on 26.3.   1975   correctly both  in the test  identification parade  held   by   the    Judicial Magistrate,  P.W. 2 and in the court. P.W. 15, a businessman of Tinsukhia,   who   had   gone to the temple on  26.3.1975 also   has identified  Henry and  Sunil  both  in  the  test identification parade held by P.W. 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,  P.W. 21  who went  to   fetch   him from  the pandal at  about 5  or 5.30 p.m, on 26.3.1975 has  stated in her evidence  that Henry  and Sunil,  both of  whom she  has identified correctly  in the test identification parade held by P.W.  2 as  well as  in the  court, were  present in  the pandal when  Sanjay and  other boys including P.W. 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 P.W.   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 P.W, 21  to go ahead and inform his mother that he would came in a short 558 while.  So P.W. 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, P.Ws. 14, 15 and 21 about the presence  of   Sunil along   with Henry in the pandal at the Shiva temple in  Tinsukhia town on 26.3.1975 when Sanjay was playing  there with other  boys, P.Ws.  12 and 13. There is also  no reason for not  accepting  the evidence  of P.W. 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 P.W. 21 left   Sanjay behind  as desired by him and went away to her house  at   about  5.30   p.m.    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 P.W.41,   the   then officer   in  charge of Sibsagar Police Station that   he   arrested Sunil on 14.4.1975 from a house in Sibsagar  town cremation  ground after  a  long chase and that he  was  until  then  hunting  for  him  in  vain  from 11.4.1975. 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  1/2 or  2 furlongs.    In    his confessional statement, Ex.7 Sunil has admitted his presence with Henry  in the pandal  at Tinsukhia on 26.3.1975 and his arrest from  the  cremation  ground  on 14 4.1975. 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

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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  C.B.  Singh, learned   Counsel who   appeared  for Sunil as amicus curiae submitted   that  having regard  to Henry’s letter, Ex. 2 in which he  had stated   that  he would  kill  (the victim) if the ransom amount is not paid  by  6 p.m. 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, Ex. 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 s. 365 I.P.C.      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  s.302 read with s 34  I.P.C.,  imprisonment for life  under   s.  364   read  with   s.34  I.P.C.,  rigorous imprisonment for  seven years  under section  201 read  with s.34 I.P.C.,  and rigorous imprisonment for five years under s. 387 read with s. 34 I.P.C.,  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, P.W. 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 ss. 302, 364, 201 and 387 I.P.C. and dismiss Criminal  Appeal No. 545 of 1982  filed by him. We allow  Criminal Appeal  No. 209 of 1983 filed  by Chabil Prasad Agarwala, P.W.  23 against  the acquittal   of Sunil, Anil and Naresh  in  part  and convict only Sunil  under s.365  I.P.C.. 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  No.210  of 1983 filed by the

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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 No.25 of 1981 and of Anil in  Criminal Appeal  No. 24 of 1981, both on the file of  the High   Court,  and allow Criminal Appeal No.211 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 No.209 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. M.L.A                   Criminal Apreal Nos. 545/82, 210/83,                             212-13/83 disnnssed and Criminal                                      Appeal No. 209 Allowed. 561