in the gauhati high court the high court of...

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Death Sentence Ref. No.1/2015 Crl. A. No.159/2015

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH)

Death Sentence Ref. No.1/2015

The State of Assam ….Appellant

-Versus- 1. Sri Sanjay Chandra,

Son of Sri Ratan Chandra, Vill- Nakhola grant, P.S. Jagiroad, District- Morigaon.

2. Sri Bhim Das @ Susanka,

Son of Sri Shyamal Das, Vill- Boha Bordoloni, P.S Mayang, District- Morigaon. 3. Sri Mohan Teron, Son of Late Bura Teron, Vill- Amuguri, P.S. Baithalangso, District- Karbi Anglong.

….Respondents

Criminal Appeal No.159/2015 1. Sri Sanjay Chandra,

Son of Sri Ratan Chandra, Vill- Nakhola grant, P.S. Jagiroad, District- Morigaon.

2. Sri Bhim Das @ Susanka,

Son of Sri Shyamal Das, Vill- Boha Bordoloni, P.S Mayang, District- Morigaon. 3. Sri Mohan Teron, Son of Late Bura Teron, Vill- Amuguri, P.S. Baithalangso, District- Karbi Anglong.

....Appellants -Versus- 1. The State of Assam 2. Sri Apu Dutta, Son of late Prakash Ch. Dutta, Resident of Jagiroad, Nakhola, P.S- Jagiroad, District- Morigaon, Assam.

....Respondents

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BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN

HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN

For the Appellants : Mr. S. Borthakur, Adv. For the State : Mr. P.P. Baruah,

Additional Public Prosecutor : Mr M. Phukan, Additional Public Prosecutor

: Mr. B. Chakroborty, Adv.

Dates of Hearing : 08-06-2017 & 13-06-2017

Date of Judgment : 27-10-2017

JUDGMENT AND ORDER (CAV)

(P.K. Phukan, J)

The death reference and the appeal preferred by the appellants against

their conviction and sentence are taken up together for disposal for the sake of

convenience and brevity.

2. The accused appellants stood convicted under Sections 302/364A/201

read with Section 34 of the Indian Penal Code by the learned Sessions Judge,

Morigaon in Sessions Case No. 27/2013 vide his judgment and order dated

21.04.2015 and death sentence has been awarded to all the 3 accused

appellants under Sections 302/34 of the Indian Penal Code and further sentenced

to Rigorous Imprisonment for life under Section 364A/34 of the Indian Penal

Code and Rigorous Imprisonment for 7 years under Section 201/34 of the Indian

Penal Code with a further direction that the sentences shall run concurrently.

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3. Being highly aggrieved and dissatisfied with the judgment and sentence,

they have preferred this appeal for setting aside their conviction and sentence.

4. This is a case of brutal murder of a young boy aged about 18/19 years

alleged to have been committed by the appellants with a view to realize ransom

from his father. The deceased Arup Dutta, a resident of Nakhola, Jagiroad under

Jagiroad Police Station was found missing from his house since the evening of

15.07.2011 and though his father Apu Dutta made vigorous search in the house

of his relatives, he was not found. Having no other alternative he lodged

information with the Officer-in-charge, Jagiroad Police Station on the basis of

which Jagiroad Police Station GD Entry 440 dated 17.07.2011 was made. When

the search was continuing, his neighbour Parimita Dey received a telephone call

from Mobile No.8486448856 belonging to the deceased. The unidentified caller

instructed her to give the telephone number to the father of the deceased and to

contact them on that number and accordingly she gave the telephone number to

the informant asking him to call on that number. When he contacted that

number he was asked to pay ransom of Rs.50,00,000/- for release of his son and

when he expressed his inability to pay the amount the demand came down to

Rs.30,00,000/-. He informed the caller about his inability to pay the aforesaid

amount also.

5. Suspecting that his son was kidnapped he filed an FIR with the O/C,

Jagiroad Police Station on the basis of which Jagiroad Police Station Case

No.98/2011 under Section 365/384 of the Indian Penal Code (IPC) was

registered and investigation started.

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6. In the course of investigation, the accused appellants were arrested and

on the basis of disclosure statement made by them the dead body of the

deceased was recovered from Amuguri hills of Karbi Anglong district on being led

by the accused appellants.

7. The confessional statement of the accused appellant Mohan Teron was

recorded under Section 164 of the Code of Criminal Procedure by a Magistrate.

The dead body was sent for post mortem examination, inquest was also held and

since it was in a decomposed state, DNA profiling was done. During the

investigation, Section 302/201/34 was added on being allowed by the learned

Chief Judicial Magistrate, Morigaon. On conclusion of investigation, charge sheet

was laid against the accused appellants under 365/387/302/201/34 of the Indian

Penal Code.

8. During trial which commenced before the learned Sessions Judge,

Morigaon, the prosecution examined as many as 20 witnesses including the

officials. Defence took the plea of total denial.

9. We have heard Mr. S. Borthakur, learned counsel appearing for the

appellants, Mr. P. P. Baruah, learned Additional Public Prosecutor, Assam assisted

by Mr. M. Phukan, learned Additional Public Prosecutor, Assam and Mr. B.

Chakroborty, learned counsel appearing for the informant.

10. Learned counsel for the appellants assailed the judgment of the learned

trial court from all sides but the main thrust of his argument centered around the

delayed filing of the FIR, inadmissibility of the statement under Section 27 of the

Indian Evidence Act, non-compliance of the provisions of Section 164 of the Code

of Criminal Procedure by the learned Magistrate while recording the confession of

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the accused appellants, discrepancies in the evidence of the prosecution

witnesses, erroneous findings arrived at by the learned trial Judge etc. He also

vehemently argued that death sentence in such cases is totally unwarranted in

view of the decisions rendered by the Apex Court in various cases and the

learned Sessions Judge has totally failed to consider the mitigating as well as

aggravating factors before awarding the death sentence.

11. Learned State counsel, on the other hand, supported the conviction and

sentence and contends that the chain of circumstances established in the case is

consistent only with the hypothesis of the guilt of the accused appellants and

cannot be explained on any other hypothesis except the guilt of the accused

appellant. He further submits that considering the heinous nature of the crime

committed by the accused appellants and also considering the mitigating as well

as aggravating factors, learned Sessions Judge has rightly awarded the death

sentence to the appellants which calls for no interference by this court.

12. There is no direct evidence to connect the accused appellants with the

commission of the crime and the entire prosecution case rests on circumstantial

evidence.

13. The first circumstance relied upon by the prosecution is the disclosure

statements and consequent recovery of the dead body on being shown and led

by the appellants.

14. The prosecution claims that the remnants of the dead body i.e., some

bones and skull were recovered at the instance of the appellants. In other words

resort to Section 27 of the Indian Evidence Act has been taken by establishing

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the circumstance of recovery of the dead body as per the disclosure statement

made by the appellants and on being led by them.

15. Section 27 of the Indian Evidence Act has been considered by the Apex

Court in a number of cases. In the case of State of Maharashtra vs. Damu

Gopinath Shinde, (2000) (Supp) Bom., C.R. 616 it is observed by the

Supreme Court that the basic idea embedded in Section 27 of the Evidence Act is

the doctrine of confirmation by subsequent events. The doctrine is founded on

the principle that if any fact is discovered in a search made on the strength of

any information obtained from a prisoner, such a discovery is a guarantee that

the information supplied by the prisoner is true. The information might be

confessional or non-inculpatory in nature, but if it results in discovery of a fact it

becomes a reliable information. Hence the legislature permitted such information

to be used as evidence by restricting the admissible portion to the minimum.

16. In State of Maharashtra vs. Suresh (2005) 5 Bom., C.R. 736, the

Hon’ble Supreme Court had considered the provisions laid down under Section 27

of the Evidence Act and has countenanced three possibilities. When an accused

points out the place where a dead body and/or incriminating material was

concealed without stating that it was concealed by himself. One is that he

himself would have concealed it, second is that he would have seen somebody

else concealing it and the third is that he would have been told by another

person that it was concealed there. If the accused declines to tell the criminal

court that his knowledge about the concealment was on account of one of the

last two possibilities, the criminal court can presume that it was concealed by the

accused himself.

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17. This is the case where accused is only person who can either explain as

to how else he came to know of such concealment and if he chooses to refrain

from telling the Court as to how else he came to know of it, the presumption is

well justified course to be adopted by the criminal court that the concealment

was made by himself. Such an interpretation is consistent with the principles

embodied in Section 27 of the Indian Evidence Act.

18. In the light of the judgments of the Supreme Court interpreting Section

27 of the Evidence Act, we shall now proceed to examine the evidence adduced

on behalf of the prosecution to prove the circumstance of the recovery of the

dead body at the instance of the appellants.

19. There is no denial of the fact that the appellants were taken into custody

by the I/O during investigation of the case following call details of the mobile

number.

20. From the judgment of the learned trial Judge we have noticed that the

learned Sessions Judge has elaborately dealt with all the matters pertaining to

arrest, production etc., of the appellants and he has also gone through the

records of GR Case No.703/2011 to ascertain the relevant facts.

21. The record reveals that the accused appellants Bhim Das was arrested

and produced before the learned Chief Judicial Magistrate, Morigaon on

05.08.2011, the accused appellant Sanjay Chandra was arrested and produced

on 07.08.2011 and Mohan Teron was arrested and produced on 08.08.2011. The

statements of the appellants were recorded by the I/O on 07.08.2011 vide

Exhibits-11, 12 and 13. It can be discerned from the records that at the time of

recording the statements the accused Bhim Das was arrested and the other 2

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accused appellants were in police custody but not arrested. The accused

appellant Bhim Das was allowed police remand for 3 days. Thus it appears that

all the three accused appellants were in custody of police at the time of making

the disclosure statements. Pw-9, Pw-12 and Pw-13 claims to have seen the

accused appellants in the police station and according to them the appellants

made disclosure statements to police in their presence.

22. On a critical analysis of the evidence we have no doubt that the

statements of the three appellants were recorded by the I/O while they were in

police custody. However, that part of the statements made by the appellants

where they admitted having kidnapped the deceased and killed him are

inadmissible in evidence because of the bar imposed by Sections 25 and 26 of

the Evidence Act since at the relevant time they were in police custody. Only that

part of the statements where the appellants agreed to show the place where the

dead body was kept concealed is admissible in view of the provisions of Section

27 of the Evidence Act.

23. The evidence of Pw-20 Dhiren Kakati, I/O of this case assumes utmost

significance to prove the circumstance of recovery of the dead body on being

shown by the appellants. His evidence reveals that the informant Apu Dutta had

given him the Mobile No.8486448856 informing that the miscreants demanded

ransom of Rs.50,00,000/- from him from that mobile for release of his son. This

mobile number furnished by the informant to Pw-20 was the first clue which

enabled him to take into custody one Amar Paul in whose name the Mobile

Number was assigned. It is in the evidence of Pw-20 that on being asked Amar

Paul disclosed that though he purchased the sim but the same was used by one

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Bikram Dey. He examined Bikram Dey and obtained the call details. Thereafter

the appellants Sanjay Chandra was taken into custody and he disclosed the name

of the appellant Bhim Das and when Bhim Das was arrested and interrogated

both of them admitted that they had kidnapped Arup Dutta and taken to Karbi

Anglong and handed him over to the appellant Mohan Teron and when Mohan

Teron was taken into custody and interrogated, then all of them admitted having

killed Arup Dutta and concealed the dead body at Amuguri hill and they agreed

to show the place where the dead body was kept concealed. Pw-20 the I/O

recorded the statement of all the three appellants Exhibits 11, 12 and 13. In their

statements they agreed to show the place and accordingly accompanied by

police, Magistrate and some other witnesses including a photographer, they

proceed to Amuguri hill on 07.08.2011 at about 7 am. When they arrived near

the house of appellant Mohan Teron he brought out a dao from his house which

was kept concealed in a paddy container inside his house which was seized vide

Exhibit 15 seizure by the I/O. Thereafter all of them proceeded towards the place

where the dead body was kept concealed. The appellants showed the place and

on being shown by them the headless body was found and the head was

concealed at about a distance of 10 feet under a boulder. The Executive

Magistrate who accompanied the police held inquest on the dead body. One pair

of chappal, one shirt and one bamboo stick was also found there which were

seized vide Exhibit-10. After recovery of the dead body they came back to the

police station and the dead body was sent for post-mortem examination. The

accused appellants were arrested and remanded to custody.

24. The argument advanced by the learned counsel Mr. Borthakur is that the

identity of the dead body has not been properly established. On the basis of the

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bones and skulls it cannot be said with certainty that the bones and skulls were

of the deceased Arup Dutta.

25. Learned State counsel on the other hand contends that the dead body

has been identified on the basis of DNA profiles which is the most advanced

scientific method for identification.

26. Having regard to the evidence on record more particularly, the evidence

of the DNA expert Pw-10 who at the relevant time was posted as Scientific

Officer in the DNA unit, Serology Division of the FSL we do not have any doubt

that the dead body was of Arup Dutta. DNA matching was done in the FSL and

the conclusion was arrived at by examining and comparing the DNA profiles of

the bones and the blood samples of the parents of the deceased and after

matching it was confirmed that they were the biological parents of the body

which was recovered. The report has been tendered in evidence as Exhibit-14

and duly proved. Moreover, the mother of the deceased identified the shirt and

chappal of the deceased which was found near the dead body which were seized

by police and shown to her in the police station and she even wept on seeing

those articles.

27. On a careful analysis of the evidence more particularly the evidence of

the DNA expert we do not have any doubt that the bones and skulls recovered at

Amuguri Hills were that of the deceased Arup Dutta and consequently we do not

find any force in the submission of the learned defence counsel regarding

identity.

28. It is next argued by Mr. Borthakur, learned counsel by inviting our

attention to the evidence of Pw-7 Jayanta Kr. Bora, Executive Magistrate who

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was posted at Morigaon at the relevant time that if the finding of the learned

Sessions Judge that the I/O recorded the statements of the accused appellants

on 07.08.2011 is accepted to be true then the I/O could not have issued

requisition for the services of the Magistrate on the previous day i.e., 06.08.2011

before the statements were recorded. The submission received our due

consideration. We have also noticed this discrepancy in the cross examination of

Pw-7 where he has stated that the District Magistrate instructed him to conduct

inquest vide memo dated 06.08.2011.

29. The I/O, Pw-20 in his evidence deposed that he recorded the statements

on 06.08.2011 but in the statements Exhibits-11, 12 and 13 the date of recording

has been shown as 07.08.2011. Though the prosecution has not offered any

explanation in this regard, the only plausible explanation would be that on

06.08.2011 the I/O on interrogation of the accused appellants who were then in

police custody came to know that the dead body was kept concealed by them at

Amuguri Hills and thereafter issued the requisition for the services of the

Magistrate for holding inquest even before recovery of the dead body and on the

next date i.e., 07.08.2011 the statements were formally recorded for which the

discrepancies cropt up. It was certainly a flaw in the investigation but that cannot

be a sole ground for discarding the statements of the appellants leading to

discovery recorded on 07.08.2011. The moot question for consideration is

whether the appellant made disclosure statements before the I/O and whether

the dead body was recovered on being led and shown by them. The evidence on

record reveals that the police party was not only accompanied by the accused

appellants but some other witnesses namely, Pw-9, Biplab Dutta, Pw-12 Shymal

Saha, Pw13 Nirmal Dutta, Pw-14 Rajesh Basfor, Pw-15 Gopal Basfor (both of

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them sweepers), Pw-16 Pankaj Bora, police photographer and in presence of all

of them the appellants showed the place where the dead body was kept

concealed at Amuguri Hills. Evidence also reveals that before some of the

witnesses who visited the police station on 07.08.2011 the appellants agreed to

show the place where the dead body was kept concealed.

30. On an overall assessment of the entire evidence we do not have any

doubt that the accused appellants made the disclosure statement before the I/O

which was recorded on 07.08.2011 and thereafter on being led and shown by

them the dead body was recovered at their instance from the place of

concealment at Amuguri Hills.

31. Mr. Borthakur, learned defence counsel questioned the admissibility of the

disclosure statements on the ground that all the three accused appellant could

not have uttered the informatory statements in a chorus.

32. To counter the submission, learned Additional Public Prosecutor relied on

the decision rendered by the Apex Court in the case of State (NCT) of Delhi vs

Navjot Sandhu reported in (2005) 11 SCC 600 to contend that joint

disclosures or simultaneous disclosures are per-se not inadmissible under Section

27. In Navjot Sandhu (supra), the Apex Court has pointed out that joint

disclosures or simultaneous disclosures may be acted upon. The expression, “a

person accused”, occurring in Section 27, need not, points out the Apex Court,

necessarily be a single person and that it could be plurality of the accused also.

The Apex Court has pointed out, in Navjot Sandhu (supra) thus:---

“Before parting with the discussion on the subject of confessions under Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such

https://indiankanoon.org/doc/1312051/

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disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs. 10 lacs from the truck in which they were found at Srinagar is in issue. Learned senior counsel Mr. Shanti Bhushan and Mr. Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the Ken of Section 27, whereas it is the contention of Mr. Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the informants/accused. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the Section to more than one person. But, that is too narrow a view to be taken. Joint disclosures to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. 'A person accused' need not necessarily be a single person, but it could be plurality of accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefaratory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel.”








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33. From the above observation it clearly emerges that simultaneous

statements, by itself cannot be discarded as inadmissible evidence. In fact, the

Apex court in Navjot Sandhu (supra) in no uncertain words, held that

simultaneous disclosures of more than one accused cannot as a proposition of

law be said to be inadmissible in evidence though the evidentiary value will be a

question of fact in each case.

34. In the present case though the Investigation Officer has not furnished the

information regarding the order in which he recorded the statements of the

accused appellants that would not be a ground to reject the disclosures made by

the accused appellants before him.

35. The accused appellants not only made disclosure but also led the police

to the place where the dead body and the weapon of offence was kept concealed

and at their instance the dead body was recovered. The weapon of offence was

taken out by the appellant Mohan Teron from his house which was kept

concealed in a paddy container. The place in which the dead body was found

was a hilly terrain not accessible to anybody and it was only known to the

accused appellants that the dead body was concealed in that area.

36. On a careful evaluation of the evidence we do not have any doubt that

the dead body of the deceased was recovered at the instance of the accused

appellants and on being shown by them.

37. Learned defence counsel also relied on the decision of the Apex Court in

Mani vs. State of Tamil Nadu reported in (2009) 17 SCC 273 to argue that

discovery is weak kind of evidence and cannot be wholly relied upon. In Mani vs

Tamil Nadu (supra) the Apex Court observed that discovery is a weak kind of

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evidence and cannot be wholly relied upon and conviction in serious matters

cannot be based upon the discovery.

38. We are not oblivious of the fact that the evidence of discovery under

Section 27 is a weak piece of evidence and it would be hazardous to convict an

accused on the basis of such evidence unless corroborated by other cogent and

reliable evidence on record.

39. In this case prosecution is not only relying upon the evidence of discovery

but also the confession of one of the accused namely Mohan Teron recorded

under Section 164 of the Criminal Procedure Code by Judicial Magistrate First

Class, Morigaon. Though the confession was retracted by the accused appellant

in his examination under Section 313 of the CrPC it is well settled that a

confession if voluntarily and truthfully made, is an efficacious proof of guilt. In his

confessional statement (Exhibit 8) some undisputed facts have come to our

notice. The accused appellant Mohan Teron was produced before the Court on

08.08.2011 at 2.45 pm for recording his confessional statement. The learned

Magistrate, Pw-6 Barnani Goswami before recording the confession first

ascertained that the offence punishable under Section 365/384/302/201/34 of

the Indian Penal Code was committed at Amuguri on 15.07.2011 at about 9/10

pm. The confession, Exhibit-8 reveals that the learned Magistrate asked the

accused in detail relating to his detention after arrest. No injury was noticed by

her on his person. To normalize the accused and find out the truth she had

enquired from the accused in question and answer form which may be extracted

below:----

“A:-- What is your age? Ans:-- 24 years.

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B:-- Whether you are married and have got children? Ans:-- I have not married (till now). C:-- What is you occupation and what is your monthly income? Ans:-- I am a mason. I earn around Rs.3,500/- per month. D:-- Whether your monthly income is sufficient to maintain your family? Ans:-- Sometimes, I can manage and sometime not. At home, I have my mother and sister. E:--For how many hours you were with the police and whether police threatened or applied force upon you? Ans:-- The police did not threaten me. I have explained to the accused the gist of the provisions of Section 164 Cr.P.C. coupled with Section 281 Cr.P.C. and Sections 24 to 30 of the Indian Evidence Act in details, particularly the following— I :--Do you know that I am not an officer of police but a Magistrate? Ans:--I know. II:-- Whether any inducement, promise, force or threatening was made to you by police or any other person for making the confession? Ans:--No. The police asked me to say. But I want to make the confession on my own volition III:-- Do you know that you are not bound to make a confession? Ans:-- Yes, I know. IV:--Do you know that if you confess the accusation, it may be used as evidence against you? Ans:-- Yes. I know. V:--Why you want to confess? Ans:--Because I committed offence. VI:-- Do you know that you should say nothing which is untrue and that you should not say anything because others have told you to say it but is at liberty to say whatever really you desire to say? Ans:--Yes. I know. VII:-- Do you know that there is no police officer associated with the investigation in the vicinity and you are completely under the supervision of the Court and you need not be afraid of the police? Ans:-- Yes. I know. VIII:-- Whether the police promised or assured you that you will be made an approver? Ans:--No. IX:-- Do you know that you may be convicted on your own confession? Ans:-- I Know. X:-- I assure you that you will not be remanded/send back to the police even if you do not confess. Are you clear about it? Ans:-- yes.”

40. It appears that the learned Magistrate did not record the confession

immediately after the preliminary examination. She had placed the accused

appellant under the supervision of peon Pushpa Bharali for reflection from 2.45

pm to 5.45 pm and ascertained that the Investigating Agency did not have any

touch with the accused during this period. The accused was again produced

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before her on that day itself at about 5.45 pm and she once again explained the

provision contemplated under Section 164 of the CrPC, particularly those

mentioned above and on being satisfied that he is in a fit state of mind and

prepared to make confessional statement voluntarily, she proceeded to record his

confession.

41. Learned Magistrate proved record of the confession and testified that she

had recorded it after fully satisfying herself that the confession was being made

voluntarily.

42. The confession of the accused is extracted below for ready reference:--

“From Jagiroad, Sanjay Das and Bhim Das travelled in a passenger vehicle and get down at Nellie Tiniali. The time then was 4.30 p.m. it was Friday, the 15th day of July, 2011. From Nellie Tiniali, Sanjay contacted Arup Dutta over phone, asking him to come over to Tiniali. Arup came(there) in to time. Sanjay and Bhim then took him to a nearby wine shop. They purchased a bottle of liquor from that shop and went to my house. All three of them went on foot. They reached my house at 5.15 p.m. we all held a party in my house. My two sisters and mother were at home. Later, we had our dinner together. The time then was around 9.00/9.30 p.m. Sanjay and Bhim hatched a plan. They planned to kidnap Arup. They told me of their plan. Bhim and I then come out of the house and finalize the kidnap plan. Sanjay, Bhim and I took Arup Dutta out of the house and let him into a nearby jungle. The time then was 9.45 p.m. approximately. In the jungle, Bhim said to Arup, “Demand Rs.50,00,000/- (Rupees Fifty lakhs) from your father.” Arup refused to make a phone call, this infuriated Bhim. While going (into the jungle), Bhim had taken along a piece of ‘Buri’ bamboo. I had taken a dao with me. Sanjay, too, had taken along a piece of ‘Buri’ bamboo. Bhim hit Arup in the head from behind with the bamboo. Blood flowed out his nose and mouth and he fell down. After (Arup) had fallen down, Sanjay hit him thrice in the neck with the bamboo he had been carrying. The three of us then dragged Arup along to a nearby stream of water. Bhim told me five times. “cut off Arup’s neck.” I then cut off Arup’s neck with the dao. Even before I cut his neck, I had known that Arup had died. By touching Arup’s body, I found it had become cold. At that time Bhim said, “this one is finished.” Then, near the stream, Bhim asked me to cut him (Arup) with dao. Accordingly, I cut him thrice with the dao. We then covered Arup’s body with stones. After that, we came away from there. With the dao in hand, I ran home. I reached home around 11.00 pm. A little after I had gone home, both Bhim and Sanjay come. The two of

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them slept in my house. I had no idea when in the morning Bhim and Sanjay went away. Sanjay had left their bamboos there. Bhim had thrown his bamboo half way. Sanjay had left his one at the place of occurrence itself. I carried my dao home. The police seized the said dao yesterday. They also recovered the bamboo that Sanjay had left at the P.O.

Bhim and Sanjay had come to my house on 12.07.2011. They said to me, ‘we’ll kidnap a boy. His father is a ‘crorepati’. We’ll demand Rs.50 lakhs”. They said that the work would be done within a short time. I told them, “I am not interested in doing that. There is no room to keep one.” Bhim asked me not to worry, adding that he would discuss the issue on his next visit. Then, this incident took place on 15.07.2011. At first, I had no idea that Arup Dutta was the same youth whose kidnapping had been discussed by Bhim on 12.07.2011.Exhibits 8(1) to Exhibits 8(6) are the signatures of the accused Mohan Teron.”

“Certificate I am fully conversant with the provisions of Rule 23 of the High

Court Rules, Circulars, Orders and relevant provisions of law regarding recording confession and I have recorded the confessional statement herein-before following the principles laid down and the provisions of law.

I had explained to (name of the accused) Mohan Teron that he is not bound to make a confession and that, if he does so, any confession he may the confession has been made voluntarily and is true. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

Ext8(9) Sd/--Illegible Sd/- Illegible Judicial Magistrate 1st Class Sessions Judge Morigaon, Assam Morigaon 08.08.2011 13.11.2013 Signature of the Magistrate with seal”

43. On a careful evaluation of the confessional statement we have found that

the accused Mohan Teron vividly described the events leading to the murder of

the deceased. According to the appellant his friends the other 2 appellants

contacted the deceased over phone and asked him to come to Nellie and when

he arrived at about 4.30 p.m. on 15.07.2011, they purchased a bottle of wine

from a nearby liquor shop and went to the house of the accused appellant Mohan

Teron and after arriving there at about 5.15 p.m., they took liquor. In his house

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the other 2 appellants Sanjay and Bhim made a plan to kidnap the deceased for

the purpose of realizing ransom from his father. All 3 of them took the deceased

to nearby jungle and in the jungle they asked the deceased to call his father and

ask him for Rs.50,00,000/- and on his refusal to do so the appellant Bhim first

dealt a blow on the head of the deceased with a bamboo lathi and thereafter

Sanjay hit him with a lathi. After he fell down, the appellant Mohan Teron dealt 3

dao blows on his neck severing the neck from the rest of the body. They

concealed the head in a nearby area and came back to his house. The

confessional statement also reveals that the plan to kidnap the boy for realising

ransom was made on 12.07.2011 in his house and it was decided to demand

Rs.50,00,000/- from his father. The self inculpatory statement of the appellant

attributing culpability to the co accused Sanjay and Bhim can be taken into

consideration. The confession is also corroborated by the disclosure statement

leading to recovery of the weapon of offence and the dead body of the

deceased.

44. Mr. Borthakur, learned counsel for the accused appellants vehemently

argued that sufficient time for reflection was not given to the accused appellant

Mohan Teron by the learned Magistrate before recording the confession and he

expressed serious doubt regarding the voluntary nature of the confessions.

45. In controversion, learned State counsel relied on the decision of the Apex

Court in the case of Sankaria vs State of Rajasthan, AIR 1978 SC 1248 to

contend that no statutory period has been prescribed fixing time limit between

preliminary questioning and recording of confession.

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46. Having regard to the submissions, while going through the confessional

statement and the evidence of Pw-6, the Magistrate who recorded the confession

we have noticed that the learned Magistrate after putting the preliminary

questions to the accused kept him under the custody of her peon for reflection

and after about 3 hours when the accused appellant was again produced before

her she again put questions to him to ascertain that he was completely free from

police influence and was willing to confess his guilt. The evidence of the learned

Magistrate clearly reveals that she recorded the confession of the accused after

she had reason to believe that it was being made voluntarily. There was no

allegation by the accused before the Magistrate that he was being tortured by

police while he was in police custody. There is also no evidence that during the

period of 3 hours while he was in the custody of the office peon, he came in

contact with any police officer. Rather we have found that he was beyond the

reach of the investigating police during this period. Though the accused claims in

his defence statement under Section 313 of the CrPC that under police pressure

he made confession but it was taken at a belated stage and while cross-

examining the I/O no such question was put to him. After perusal of the

confessional statement we have found nothing improbable or unbelievable in it

and it appeared to be a spontaneous account and he vividly described the

manner of the commission of crime in question, which only the perpetrators of

the crime could know. The confession received assurance in several material

particulars more particularly, the disclosure statements and the consequent

recovery of the dead body and the weapon of offence at the instance of the

accused appellants.

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47. Though the call details, of the phone number tendered in evidence by the

prosecution is inadmissible in view of the provisions of Section 65B of the Indian

Evidence Act, we have found that even without the call details it can easily be

inferred that the mobile number 8486448856 from which the call was made to

Pw-3 a neighbour of the deceased and thereafter to Pw-2 demanding ransom

was used and at that time the mobile number was used by the deceased. Since

the mobile was with the deceased at the relevant time it is not difficult to

presume that the accused appellants after the death of the deceased took away

the mobile and made the call to his father, Pw-2 demanding ransom.

48. Since the case is purely based on circumstantial evidence, we shall now

list the circumstances revealed from the evidence adduced on behalf of the

prosecution:---

(i) Missing of the deceased from his house from the evening of 15.07.2011;

(ii) Telephonic demand for ransom to the father of the deceased from the Mobile Number 8486448856 which was used by the deceased at the relevant time;

(iii) Disclosure statement of the accused appellants to I/O in presence of the witnesses while they were in police custody and consequent discovery of the dead body and the weapon of offence on being shown by them;

(iv) Confession of one of the accused appellant Mohan Teron recorded under Section 164 of the CrPC before the learned Magistrate.

49. The Supreme Court has laid down the guidelines from time to time with

regard to the finding of guilt solely on the basis of circumstantial evidence in a

plethora of decisions. The vintage judgment is Hanumant Govind Nargundkar

and Anr., vs. State of Madhya Pradesh, AIR 1952 SC 343, wherein the law

was laid down in the following terms:--

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“.....it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused....”

50. In Sharad Birdhichand Sarda vs. State of Maharashtra(1984) 4

SCC 116 Supreme Court laid down the law in the following terms:--

“A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ‘must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this court In Shivaji Sahabrao vs State of Maharashtra where the observations were made—‘Certainly, it is primary principle that the accused must be an not merely maybe guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.’ (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty (3) the circumstances should be of a conclusive nature and tendency, (4) they would exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

51. The two judgments have been quoted and followed by the Supreme

Court in the matter of Alok Nath Dutta Vs. State of West Bengal (2007) 12

SCC 230.

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52. Keeping in view the above guidelines, on thorough evaluation of the

evidence we have no doubt that the deceased was missing from his house from

the evening of 15.07.2011. There is also unassailable evidence that ransom was

demanded after a few days to the father of the deceased from the Mobile No.

8486448856 which was already saved in the mobile of Pw-3, a neighbour of the

deceased to whom the unidentified caller made the call through the above

mobile number asking her to furnish the number to the father of the deceased

and to ask him to make a call on that number and when the call was accordingly

made ransom was demanded. It is also established from the evidence of the I/O

that following the call details Pw-4 Amar Paul was taken into custody which was

followed by pw-5 Bikram Dey. Evidence of Pw-4 and Pw-5 established that the

aforesaid mobile number 8486448856 was being used by the deceased at the

relevant time. Though the I/O collected the call details vide Exhibit-21, the same

is not admissible in evidence in view of bar of Section 65A of the Indian Evidence

Act as the call details did not contain any signature of the authority who issued

the call details, but there is no denial that the accused appellants were taken into

custody by police one after another and while they were in police custody they

made disclosure statement and at their instance the weapon of offence and dead

body was recovered from Amuguri hills at Karbi Anglong. Evidence of DNA expert

confirmed that the remnants of the body recovered was that of Arup Dutta. The

next circumstance relied on by the prosecution is the confession of the co-

accused Mohan Teron where he admitted having killed the deceased along with

the other accused appellants and thereafter concealed the dead body. He clearly

attributed culpability to the other 2 accused appellants and vividly described the

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events leading to the commission of the murder. The self inculpatory statement

attributing culpability of the other appellants can be relied upon.

53. In our considered view the facts disclosing the circumstances which are

discussed above have been duly proved on behalf of the prosecution by

admissible evidence. The chain of circumstances so established unerringly proved

that the case of the prosecution against the accused appellants stands proved

beyond reasonable doubt.

54. Since this is the view taken by us, we have found the appeal preferred by

the appellants devoid of any substance and the appeal stands dismissed

upholding the conviction of the appellants under Sections 302/364A/201 read

with Section 34 of the IPC.

55. The learned Sessions Judge awarded death sentence to all the 3 accused

appellants under Sections 302/34 of the Indian Penal Code and also sentenced

them to Rigorous Imprisonment for life under Section 364A of the Indian Penal

Code and 7 years under Section 201 read with Section 34 of the Indian Penal

Code opining that the murder was committed by them in a brutal, dastardly and

grotesque manner and before awarding the death sentence he relied on the

decision of the Apex Court in several cases.

56. On a thorough consideration of the entire evidence on record we do not

find the case to be falling in the category of “rarest of the rare” case. Moreover,

all the 3 accused appellants are young boys aged about 30/35 years of age and

there is every chance of reformation.

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57. Upon consideration of all the mitigating and aggravating factors, the socio

economic background, the age and antecedents of the accused appellants and

after taking into consideration the three tests i.e., Crime test, Criminal test and

R.R. test guidelines for which have been provided by the Apex Court in the case

of Shankar K ishanrao khade vs. State of Maharashtra Criminal Appeal

No.362-363 of 2010 decided on 25.04.2013, we are of the view that

sentence of life imprisonment shall meet the ends of justice and accordingly the

death sentence awarded to them under Sections 302/34 of the Indian Penal

Code is commuted to life imprisonment under Section 302/34 of the Indian Penal

Code. However, the life imprisonment under Section 364 A/34 of the Indian

Penal Code and imprisonment for 7 years under Sections 201/34 of the Indian

Penal Code passed by the learned Sessions Judge with further direction that all

the sentences shall run concurrently is maintained.

58. With the above modification of the sentence, the judgment of learned

Sessions Judge stands affirmed.

59. Send down the LCR forthwith with a copy of this judgment for information

and necessary action.

JUDGE JUDGE

Rupam

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