J.N. Patel, C.J.@mdashThe Appellant was tried on a charge of having committed offences of kidnapping and murder of Fatik @ Abhishek Mondal along with two others and causing disappearance of his body by concealing it in a pond. By judgment and order dated 19.05.09, 20.05.09 and 21.05.09 the Appellant-accused has been found guilty u/s 364 of the I.P.C. read with Section 120B I.P.C. and sentenced to suffer rigorous imprisonment for life and pay a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for one year. The Appellant-accused is also found guilty u/s 302 of the I.P.C. read with Section 120B I.P.C. and sentenced to death and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year, u/s 201 of the I.P.C. read with Section 120B of the I.P.C. has been sentenced to suffer rigorous imprisonment for 7 years and pay a fine of Rs. 2,000/- in default to suffer further rigorous imprisonment for 6 months. Accordingly, the Ld. Trial Court has made a reference u/s 366(1) of Code of Criminal Procedure for confirmation of sentence of death and the Appellant has also preferred an appeal through jail.
2. In nutshell, the prosecution case is that on 11.09.2007 at about 08.00 a.m. the deceased Fatik @ Abhishek Mondal left his house along with Rabin Mallick for catching fish and as he did not return till 10.30 p.m., his mother Smt. Gouri Mondal (P.W.11) lodged a missing report with Titagarh Police Station. On the next day i.e. 12.09.2007, the Appellant came to be accosted by Shri Ashok Karmakar (PW-1), maternal uncle of deceased Fatik and his associates and was taken to Titagarh Police Station where report came to be lodged by Ashok Karmakar that the Appellant along with two others namely Samir Debnath @ Bullet and Rajesh Sewli @ Tarit strangulated Fatik to death and concealed his dead body in a pond. The said report was treated as FIR and the police arrested the Appellant Rabin Mallick. On his interrogation he disclosed where the dead body of Fatik was concealed and agreed to lead the police to the said spot. On the way the police arrested Bullet and Tarit and along with complainant and witnesses were taken to the place by the side of Central Road, Nonachandanpukur of Barrackpore. The Appellant and his associates took out the dead body of Fatik @ Abhishek Mondal which was concealed under Kalmi aquatic plants in the pond. The Police in the presence of Prasenjit Bain (PW-3) and Sudip Sarkar (PW-5) and others prepared an inquest report (Ext. 1/4). The police also recovered one old thin yellow colour nylon rope on 13.09.2007. The dead body was sent for post-mortem examination. The Police seized one black BSA SLR bicycle having frame No. GKG 717319 from the house of Rabin Mallick under the seizure list No. G17. On completion of investigation charge sheet came to be filed. It appears that the co-accused in the case namely Samir Debnath @ Bullet and Rajesh Sewli @ Tarit were found to be juvenile on the date of the incident and, therefore, their case was separated and they were sent to the Juvenile Justice Board, and the case of the Appellant-accused Rabin Mallick came to be committed to the Court of Sessions for trial. The Appellant pleaded not guilty and came to be tried. On conclusion of the trial, the Appellant was found guilty and was convicted and sentenced, against which he has preferred this appeal.
3. It is contended by the Ld. Counsel appearing for the Appellant that the prosecution case is based upon circumstantial evidence like last seen. The alleged extra judicial confession made before PW 1 to 5 and 9, the discovery of the dead body at the instance of the accused. The recovery and seizure of the bicycle of the deceased from the house of the Appellant-accused and the discovery of the Yellow Nylon Rope at the instance of the juvenile Bullet and Tarit. It is submitted that the prosecution has not brought anything on record to show what was the motive behind commission of murder of Fatik and, therefore, it cannot be said that the Appellant-accused was responsible for killing the deceased. It is submitted that the dead body of the victim was found more than 24 hours after the deceased had left his house with the Appellant-accused and according to the evidence of Dr. Abhijit Ghosal (PW-13) who conducted the postmortem of the dead body of Fatik on 14.09.07, death was caused 2/3 days before 14.9.2007. Therefore, the prosecution''s case that the Appellant has committed the murder of the deceased mainly because he has left along with the deceased is not sufficient to establish the charge of murder as there is a long gap and possibility of other persons having committed the murder cannot be ruled out. It is further submitted that the evidence of PW 1 to 5 i.e. the uncle of the deceased and his friends goes to show that the Appellant-accused was accosted by them threatened, tortured and wrongfully detained for more than 2 hours before he was taken to police station, Titagarh, itself would go to show that the alleged extra judicial confession was not voluntary. It is submitted that as the co-accused in the case namely Bullet was not tried along with the accused as he was juvenile, the discovery of the yellow nylon rope at his instance does not lead the prosecution to bring home the guilt at the door step of the Appellant-accused.
4. The Ld. Counsel for the Appellant-accused further submitted that recovery of the bicycle of the deceased from the house of the accused by itself does not go to establish that the Appellant-accused has committed the murder.
5. The Ld. Counsel appearing for the Appellant-accused submitted that in so far as the charge and conviction for having committed offence u/s 364 I.P.C. is concerned, it cannot be sustained as there is nothing brought on record by way of evidence that the Appellant-accused kidnapped Fatik @ Abhishek Mondal in order to commit his murder. According to him it is the prosecution case that the deceased himself left with the Appellant on his bicycle so as to go for fishing and therefore, considering all the circumstances, the prosecution has failed to prove and establish the case against the Appellant and he deserves to be acquitted.
6. On the other hand, the Ld. Public Prosecutor appearing for the state submitted that to establish a charge u/s 364 of I.P.C., it is not necessary that the Appellant-accused should take away the victim and even if the victim is led into the trap by misleading him that they will go for fishing, the very fact that he was found to be murdered clearly goes to establish that the accused was guilty of having committed offence u/s 364 I.P.C..
7. It is submitted that the prosecution has clearly established that Fatik was taken away by the Appellant-accused Rabin Mallick and was last seen alive leaving his house with the Appellant-accused. It is submitted that when the PW-1, Ashok Karmakar went out searching for his nephew along with his friend and neighbour, they did not find the Appellant-accused in his house and that is why missing complaint was lodged and on the next day when they saw the Appellant-accused in front of the cycle shop and accosted him, he confessed to them that he along with his two friends murdered Fatik and has concealed his dead body in a pond which was immediately reported to the police and the FIR lodged by him clearly corroborates the complainant P.W.1. It is submitted that on the information given by the Appellant-accused, dead body of Fatik was recovered by the Police and it was noticed that the Appellant-accused and his associates committed murder by strangulating him and his dead body was concealed under the Kalmi plants in the pond. It is submitted that the police has also recovered the bicycle of the deceased from the house of the accused which also established the prosecution case and the fact that the Appellant-accused did not offer any explanation in his examination u/s 313 Code of Criminal Procedure is an additional link in the chain of circumstances which establishes the case against the Appellant and therefore, the Trial Court was justified in finding the Appellant-accused guilty of committing offence u/s 364, 302, 301 read with Section 120B of I.P.C..
8. The fact that the death of the Appellant was homicidal is not much disputed. The inquest report of the dead body of deceased Fatik which was witnessed by the complainant Ashok Karmakar and others clearly indicates that the victim was strangulated as ligature mark was found around the neck below the jaw of the dead body and it appears that thin strip was used by accused for strangulation of the neck. The dead body was sent for postmortem examination. Dr. Abhijit Ghosal (PW-13) held the postmortem examination of the dead body of Fatik @ Abhishek Mondal on 14.09.2007 and he deposed in the Court that
I found abrasion 1"/2 X 1/2 " 4" above the left wrist joint, up to extension aspect an abrasion measuring 1" X 1" 1"X 1/2 " the left elbow joint, abrasion measuring 1" and 1/2 "2 X 1/2 " below the left elbow joint, abrasion 1 and X 1/2 2", 1/2 " 2" about the right wrist joint. Ligature mark 12" in circumference with the width 1/2 " found disposed transversely around the neck 1/2 " below the right angles of the mandible 1" below the right and left mastoid processes and below the external occipital protuberance 3" above the suprasternal notch.
On dissection I found the following:
Bruise 2" X 1/2 " anterior aspect of the neck, 1" below the cheek. 2. Fracture both corne of the hyoid with extravasations of blood in the surrounding tissues. As per my opinion the death was due to the effect of strangulation by ligature, and ante-mortem and homicidal in nature. The strangulation was made by tough rope. The body was decomposed and as such I think that the death was caused about 2/3 days before 14.09.07. This PM report was prepared and signed by me." ( It is marked as Ext. 7.)
9. In order to establish its case that Fatik @ Abhishek Mondal was kidnapped by the Appellant-accused, the prosecution has examined his mother Gouri Mondal, Wife of Shibapada Mondal (PW-11). In her evidence before the Court, she stated that Fatik was her son. On 11.09.2007 at about 08.00 hrs., accused Rabin Mallick came to her house and called her son Fatik and asked him to go with him to catch fish and so her son went out on his bicycle with accused Rabin Mallick. As her son did not return during the day, in the evening she along with her brother Ashok Karmakar and others went to the house of accused Rabin Mallick to search for her son. But she found the house of the accused lying closed under lock and key and she did not find anybody there. Then at about 22.00/22.30 hrs on that day, she lodged one GD with Titagarh Police Station. On the next day i.e. on 12.09.2007, she learnt that her son was killed and his body has been recovered from the pond. Except for the testimony of Gouri Mondal that her son went away with the Appellant-accused in the morning at 08.00 hrs. on 11.09.2007, there is no other evidence on record to show that Fatik @ Abhishek Mondal who was aged about 13 years came to be kidnapped from his house. Therefore, to establish an offence u/s 364 IPC it must be proved that the person charged with the offence had the intention at the time of kidnapping or abduction that the person kidnapped or abducted or so disposed of so as to be put in danger of being murdered. Even if it is accepted that the victim on his bicycle went along with the Appellant-accused, it has to be further established that it was due to misrepresentation and deception that the victim was induced to go as a part of the plan by the Appellant-accused and his associates so that he could be murdered. The prosecution has not led any evidence to show any animosity or that the Appellant had a strong motive to commit murder of Fatik Mondal. Therefore, we find that the prosecution has not been able to establish that the Appellant along with his associates had conspired to kidnap Fatik @ Abhishek Mondal first to commit his murder or put him in danger of being murdered.
10. In order to prove the case that the Appellant-accused and his associates had committed murder of Fatik @ Abhishek Mondal, a 13 year old boy, the prosecution relies upon the circumstances of the victim being last seen alive with the Appellant-accused, the extra judicial confession made by the Appellant-accused, the discovery of the dead body and yellow nylon rope at the instance of the Appellant-accused, the recovery of the bicycle of the deceased from the house of the Appellant-accused.
11. The prosecution relies on the testimony of Gouri Mondal (PW-11) mother of the victim, who has deposed that on 11.09.2007 at about 08.00 hrs. accused Rabin Mallick has came to her house and called her son and asked him to go with him to catch fish and her son Fatik left the house with his bicycle with him and since then he did not return. In her cross-examination, she was questioned as to why this fact was not mentioned in the Missing Diary lodged at the Police Station. Except for this suggestion, the testimony of Gouri Mondal has gone unchallenged. On going through the evidence of Smt. Gouri Mondal (PW-11), we find that she had no idea as to where her son has gone after he had left the house in the morning on his bicycle to catch fish along with Appellant-accused Rabin Mallick. She stated in her evidence that as her son did not return in the evening, she along with her brother Ashok Karmakar and others went to the house of Rabin Mallick to search out her son. But she found the house of the accused lying closed under lock and key and she did not find anybody there. Then at about 22.00/22.30 hrs on that day, she lodged one GD (Missing Diary) being No. 842 dated 11.09.2007 with Titagarh Police Station. The GD has been proved and marked as Ext. 13 where there is a specific mention that Smt. Gouri Mondal, wife of Smt. Shibapada Mondal of Jafarpur Road, PS - Titagarh came to P.S. and reported that her son Fatik has left her house at about 08.00 hrs on 11.09.2007 but did not turn up in the evening and gave description - Age - 13 years, Height - 4''10", Body - thin, Complexion - Fair, Education - V, Wearing - Black Half Pant and Sky colour T-shirt. It is further recorded that the informant also stated that one Rabin Mallick called Fatik from the house to catch fish and Fatik left the house with Rabin Mallick. Therefore, the suggestion made to her in cross examination that she did not mention the fact in the GD is not correct and it cannot be accepted as an omission on the part of the witness as the witness was not confronted with the GD Entry (Ext. 13). Further this fact also stands corroborated by the evidence of Ashok Karmakar (PW-1) maternal uncle of the deceased and others. Therefore, the prosecution has established that the victim Fatik @ Abhishek Mondal was last seen alive in the company of accused.
12. Let us examine whether this can be considered as the circumstance to show that immediately thereafter the victim came to be murdered. The learned Counsel appearing for the Appellant-accused has placed reliance on the decision of the Supreme Court in the case of State of Goa v. Sanjay Thakran and Anr. (2007) 2 SCC 162 in support of his submission that duration of time gap between the accused persons seen in the company of the deceased and the detection of the crime, held, would be a material consideration. It is, therefore, submitted that such evidence would be taken into account where the prosecution establishes that the said time gap was so small that possibility of any other person being with the deceased could completely be ruled out. Mr. Ganguly, learned Counsel for the Appellant-accused, has drawn our attention to the fact that Dr. Abhijit Ghosal, P.W. 13, who conducted autopsy on the dead body of Fatik, has stated as regards the time of death that the body was decomposed and as such in his opinion, the death was caused about 2/3 days before 14.09.07. It is submitted that it is the prosecution''s case that the victim has been murdered on 11.09.07, then there was a gap of more than 24 hours as according to the opinion of the Medical Officer death was caused about 2/3 days before 14.09.07 and probably the victim has been murdered on 12.09.07 and not on 11.09.07 which is the prosecution''s case and, therefore, even if the circumstance of ''last seen'' together is taken to have been established against the Appellant-accused, it cannot be stated that this will lead to the conclusion that the Appellant-accused has committed the murder. We do not find this to be a reason not to consider the circumstance of ''last seen'' together against the Appellant-accused. There has been no cross-examination of the Medical Officer to bring on record that the victim died on 12.09.07 or thereafter. This being the opinion of the Medical Officer based on the fact that the dead body was decomposed, does not, in our view, fix the exact time of death, but it goes to show that the victim had died much before, i.e., about 2/3 days before 14.09.07 when the post-mortem was performed on his dead body.
13. We find that this circumstance of ''last seen'' together assumes importance as on the very next day, i.e., on 12.09.07 Ashoke Karmakar, P.W. 1, and his associates Sagar Bhattacharjee, P.W. 2, Prosenjit Byne, P.W. 3, Raju Saha, P.W. 4 and Sudip Sarkar, P.W. 5 were able to find out accused Rabin Mallick and accosted him. In the evidence before the Court it is stated that on 12.09.07, they were all in search of the victim Fatik and his friend Rabin Mallick and in the afternoon at about 17.30 hrs. they saw Rabin Mallick in front of cycle shop of Rafik in their para (mohalla) and they accosted him and in their presence Rabin Mallick confessed that he along with Bullet and Tarit murdered the deceased by strangulation with the help of one yellow nylon rope on the bank of Sadabari pukur (pond) on the central road on 11.9.07. He also revealed that they had concealed the dead body of the deceased in the bottom of kalmi plants floating on the water of the said pond. On getting this information, they took Rabin Mallick to the Police Station and Ashoke, P.W. 1, lodged a written complaint (Exbt. 4/1) which has been treated as FIR (Exbt. 6). On going through the evidence of these persons, we find that insofar as the fact that the victim Fatik was missing that they were searching for him and it is only when they found the accused Rabin Mallick that they could gather the information that Fatik has been killed and his dead body is concealed in a pond is sufficiently established.
14. Mr. Ganguly, learned Counsel appearing for the Appellant-accused, submitted that this part of the prosecution''s case that the Appellant-accused made an extra judicial confession to Ashoke Karmakar, P.W. 1, and his associates cannot be accepted for the reason that it is not voluntary. It is submitted that the evidence of these witnesses reveal that the Appellant-accused was accosted by them at about 17.30 hrs., but was taken to the Police Station after more than 2 hrs. which can be gathered from the fact that the FIR in the case came to be registered on 12.09.07 at 19.30 hrs. which goes to show that all these witnesses tried to extract the confession from the Appellant-accused, otherwise, there was no reason for them to take more than 2 hrs. to reach Police Station. This shows that the Appellant-accused was threatened, tortured by wrongfully confining him. So, this piece of evidence in the form of extra judicial confession should not be given any weightage. Further, it is submitted that extra judicial confession or for that reason confession of a co-accused person is not evidence as has been held in the case of Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159. Therefore, the Learned Trial Court has committed an error in relying on such evidence.
15. We do not agree with the contention raised by the learned Counsel for the Appellant-accused in order to impress upon us that the so-called extra judicial confession made before Ashoke Karmakar, P.W. 1, and his associates by the Appellant-accused should not be taken into consideration for arriving at a finding that the Appellant-accused is guilty of having committed murder of the victim.
16. In Chattar Singh v. State of Haryana (E. Cr.N. 2008(3) 1431) while dealing with admissibility of judicial and extra judicial confession the Supreme Court observed:
17. Confessions may be divided into two classes i.e. judicial and extra�judicial. Judicial confessions are those which are made before a Magistrate or a Court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions u/s 164 of the Code or Criminal Procedure, 1973 (for short the ''Code'') or a Magistrate so empowered but receiving the confession at a stage when Section 164 of the Code does not apply. As to extra-judicial confessions, two questions arise: i) were they made voluntarily? and ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil or a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Indian Evidence Act, 1872 (in short ''Evidence Act''). The law is clear that a confessions cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the Court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling or threat, inducement or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat or prosecution if it is not. A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false concession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused.
17. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confessions will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra�judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
18. Let us examine the evidence of Ashoke Karmakar (P.W.-1) and his associates who have deposed to the effect that on being accosted, the accused Rabin Mallick confessed to them that he and his associates had committed murder of Fatik @ Abhishek Mondal by strangulation. In order to ascertain that there are any circumstances which tend to say that the making of confession appears to have been caused by any inducement, threat or promise having reference to the charge against the Appellant and proceedings from anyone of the aforesaid witnesses and sufficient in the opinion of the Court to give the accused person grounds which would be reasonable to supposing him that by making it he would gain any advantage or avoid any evil on a temporal nature in reference to the proceedings against him.
19. .The evidence of these witnesses was that on 12.09.2007 in the afternoon when they saw Rabin Mallick in front of the cycle shop of Rafik, on their asking Rabin Mondal about the deceased Rabin Mondal confessed to them by saying that he along with Samir Debnath @ Bullet and Rajesh Sewli @ Tarit murdered the deceased by strangulation with the help of one nylon rope by the side of Sadabari Pukur on Central Road at noon on 11.09.2007 after catching fish from said Sadabari Pukur in the morning and after committing his murder they concealed the dead body in the pond in the bottom the Kalmi Plants.
20. We have also gone through the cross-examination of those witnesses and on the point extra judicial confession made by the Appellant-accused to the witnesses on being accosted, the evidence taken as a whole does not even remotely suggest that any threat, promise or inducement was made. The only circumstance relied upon by Mr. Ganguly is that it took about 2 hours for the de facto complainant and his associates from the time the Appellant was accosted till the Appellant was brought to the police station and a complaint came to be lodged so as to infer that the Appellant was threatened, tortured and by wrongfully detaining him a confession was obtained. The evidence on record does not show, it to be so. No doubt, the complainant and the witnesses questioned the Appellant the whereabouts of Fatik who on the earlier day left his house along with the Appellant Rabin Mallick and was missing but this by itself does not eclipse the voluntary nature of the confession made by the Appellant before the witnesses. As regards truth of the confession, nothing has been brought which would show that the confessional statement contained any untrue or inaccurate statement.
21. Therefore, let us proceed to examine the other evidence brought on record to establish that the Appellant-accused and his associates committed murder of Fatik. The prosecution has examined Nanda Dulal Debnath, S.I., P.W. 14, who was entrusted with the investigation of the case by Shyamal Sarkar, IC of Police Station, Titagarh. In his evidence the Investigating Officer has stated that on interrogation of the accused Rabin Mallick on 12.09.07 at about 19.35 hrs., the Appellant-accused gave information that he had kept the dead body of Fatik behind the Kalmi plant of the said Sadabari pukur. It was also disclosed that two other persons, viz., Tarit and Bullet are also involved in the case. So, he made a G.D. Entry 900 dt. 12.09.07 (Exbt. 9) and left for further investigation along with Ashoke Karmakar, P.W. 1 and others. On the way, he arrested the co-accused Tarit and Bullet and reached at the bank of the Sadabari pukur at about 21.10 hrs. In his evidence he has further deposed that after arrival, he could not find the dead body and he could not perceive any smell. In his presence and in the presence of the witnesses, the Appellant-accused along with his friend Tarit and Bullet got down in the said pond and took out the dead body of Fatik from behind the Kalmi plant floating in the said pond. The dead body was identified by the de facto complainant Ashoke Karmakar, P.W. 1 and his friends. Thereafter, he prepared the inquest report (Exbt. 1/4) and sent the dead body to the Police Station as the morgue remained closed at night. From the place of occurrence he has seized some Kalmi plants. (the Seizure List is marked as Exbt. 2/16) and prepared one sketch map (Exbt. 11). This fact is also supported by the witnesses to the discovery of the dead body of Fatik alias Abhishek Mondal. His evidence, in our view, directly connects the accused with the murder of Fatik @ Abhishek Mondal. An attempt was made on the part of the learned Counsel for the Appellant-accused that this cannot be considered as an information leading to the discovery of the dead body as the fact that the dead body is lying in the pond, according to the prosecution, was already revealed by the de facto complainant, Ashoke Karmakar, P.W. 1, in his report lodged to the Police Station and, therefore, subsequent recovery of the dead body from the pond does not assist the prosecution in proving the case. It is true that after the accused Rabin Mallick was accosted by Ashoke Karmakar, P.W. 1, and his associates, he disclosed to them that the dead body of the victim is hidden by them below the Kalmi plant of the said pond. This information which they received from the Appellant-accused who confessed to them of having murdered the Appellant-accused along with his associates was disclosed to the police and also form part of the first information report, cannot be considered to be information which was within the knowledge of the police. This fact becomes clear from the subsequent events which are brought on record. If we examine the evidence of S.I. Nanda dulal Debnath, P.W. 14 which speaks of the discovery as having been at the instance of the Appellant-accused. It is in consequence of the information given by the Appellant-accused coupled with the fact that the Appellant-accused led the police party and the witnesses to Sadabari Pukur and on reaching the place, the police were not able to find the dead body and, therefore, the Appellant-accused along with his associates Tarit and Bullet got down in the said pond and took out the dead body of the deceased from behind the Kalmi plant floating in the said pond. Therefore, the information given by the accused persons not only led the police and the witnesses to the place of occurrence but it directly connects the accused with the recovery of dead body which was concealed behind the Kalmi plant floating in the said pond and was taken out by them. Therefore, we have no hesitation to hold that the dead body was concealed in a place which was within the exclusive knowledge of the accused.
22. In this case, a yellow nylon rope has also been discovered on 14.9.07 at about 3.50 hrs. at the instance of one of the two accused Bullet. u/s 30 of the Evidence Act statement leading to discovery which amounts to confession of an accused is not admissible against the co-accused unless they are being tried jointly for the same offence. In view of the fact that the case of co-accused Bullet was separated and he was sent before Juvenile Justice Board being a juvenile cannot be considered as one of the circumstances against this Appellant-accused but the fact that the victim was murdered by strangulation with the help of ligature which has been described by Dr. Abhijit Ghosal, P.W. 13, as a tough rope, cannot be ruled out. Another circumstance on which the prosecution relies in the case to prove that the Appellant-accused is responsible for committing the murder of deceased Fatik, is the recovery of bicycle of the deceased from the house of the accused on 12.09.07 at 9.35 hrs. This fact has been established by the prosecution by examining P.W.s 1 to 5 and S.I. Nanda dulal Debnath, P.W. 14 who has stated that at about 22.20 hrs. he along with the accused persons, de facto complainant and his friends went towards the house of Rabin Mallick and at about 22.35 hrs. They arrived in the said house of accused Rabin Mallick and the accused took out one black BSA SLR cycle having No. JKG 31739 from his house and the said bicycle came to be seized in presence of the witnesses and the accused persons took the signature of accused Rabin Mallick on the seizure list which is marked as Exbt. 2/17. Ashoke Karmakar, P.W. 1, had identified the said bicycle as belonging to the deceased. The Appellant-accused except for denial has failed to explain as to how the bicycle belonging to the deceased has been found in his house. This is an additional link in the chain of circumstances. Therefore, considering the evidence on record, we have no hesitation to accept that the Appellant-accused has committed murder of Fatik alias Abhishek Mondal, a 13 year old boy and has been rightly found guilty by the Trial Court for having committed offence punishable u/s 302, 201 of IPC.
23. We have heard the learned Counsel appearing for the Appellant-accused as well as learned P.P., on the point of sentence. The learned P.P. fairly conceded that this case do not fall in the category of rarest of rare case and he does not press for confirmation of the death sentence imposed by the Learned Trial Court.
24. The learned Counsel appearing for the Appellant-accused submitted that as this case is based on circumstantial evidence and considering that the Appellant-accused is of tender age with no criminal background, death sentence imposed by the Trial Court was unwarranted.
25. We have gone through the judgment of the Learned Trial Court and find that the Trial Court was greatly influenced by the fact that the victim in the case was about 12/13 years'', i.e. a minor, but the accused persons have murdered him mercilessly and they did not show any mercy or sympathy to the innocent and helpless minor at the time of the incident and the manner in which they have committed his murder, the act of accused persons was so criminal and brutal and have committed the said murder with the help of a rope and finally finished his life, does not deserve any sympathy and the fact that this is rarest of rare case as such unfortunate incident seldom occur in our society and whenever it occurs the collective conscience of the community is deeply shocked and, therefore, the society expects a penalty of greatest severity for such type of rarest of the rare cases. In the opinion of the Learned Trial Court, the young age of accused Rabin Mallick should not be taken into consideration as a mitigating circumstance in his favour and considering the cruelty and brutality of accused Rabin Mallick, feel that there is no possibility of his reformation and rehabilitation in future and, therefore, imposed the extreme penalty of death.
26. The law is well settled by reason of various decisions of the Supreme Court that capital punishment can be imposed in the rarest of rare cases and if there are aggravating circumstances. Considering the facts and circumstances of the present case, we do not find that the Appellant''s case falls in the category of rarest of rare cases and the prosecution has not placed on record any material to show that the Appellant-accused is a person who is beyond reformation.
27. Therefore, we acquit the Appellant/accused of the charge under Sections 364 and 120B IPC. We uphold the conviction of the Appellant-accused for having committed offence punishable under Sections 302 and 201 of the IPC and commute the death sentence to one of imprisonment for life. Rest of the sentences are confirmed.
28. The reference is answered in the negative. The appeal is partly allowed.
