U.B. Saha, J.
1. The present appellant, Udaimanik Jamatia was put on trial along with other three accused, namely Debashis Reang alias Debasingh Reang, Kishore Jamatia and Manichand Jamatia for committing offence under Section 364A ad Section 302 of the I.P.C. On completion of the trial, the learned Sessions Judge, South Tripura, Udaipur upon recording the evidence and hearing the learned counsel for the parties ultimately found the appellant guilty for committing offence under all the sections, as stated supra. For commission of offence under Section 364A, I.P.C. the appellant was sentenced to suffer R.I. for life and also to pay a fine of Rs.2,000/-, id to payment of fine, to suffer further SI for six months and for the offence committed under Section 302 of the I.P.C. the appellant was sentenced to suffer R.I. for life and also to pay fine of Rs.2,000/- id to payment of fine, to suffer further SI for six months and for the offence committed under Section 201. I.P.C. he was sentenced to suffer R.I. for seven years and to pay fine of Rs.1,000/-, id to payment of fine to further suffer SI for three months vide his judgment and order dated 20-9-2005 passed in ST 100 (ST/U)/2002.
2. Being aggrieved by the order of conviction and sentence as stated supra, passed by the learned Sessions Judge, South Tripura, Udaipur the appellant preferred the instant appeal for setting aside the order of conviction and sentence passed therein.
3. Heard Mr. Somik Deb, learned counsel for the appellant as well as Mr. D. Sarkar, learned PP who appeared along with Mr. R.C. Debnath, learned counsel for the State respondents.
4. The case set up by the prosecution is that one Sri Keshab Biswas, PW 1 Lodged an FIR with the Officer-in-charge of the RK Pur PS on 31-1-2000 alleging inter alia, on that date at about 11 oclock while one jeep bearing No. TR 03 2327 was going towards Garjee from Tainani and when it reached Hachupara, the extremists had stopped the aforesaid vehicle and kidnapped four passengers therefrom, namely Hazar Ali Mia, Chandan Das, Sankar Sarma and Indrajit Chakraborty. Out of these four kidnapped persons, Hazar Ali Mia, PW 3 was released by the extremists.
5. Upon receipt of the aforesaid complaint lodged by PW 1, a police case was registered being RK Pur PS Case No.18/2000 under Section 341/365/34 of the I.P.C. against three unknown tribal miscreants. On completion of investigation the police filed charge-sheet against Trinayan Debbarma alias Tia, Kishore jamatia, Jabbar Ali, Debashis Reang alias Debasing Reang, Malin Debbarma, Birandra Jamatia, Balaram Jamatia and Manichand Jamatia. Thereafter, on getting certain information further investigation was initiated and three persons namely, Padma Jamatia, Udaimanik Jamatia, present appellant herein, and Pushpa Sadhan Jamatia were arrested and ultimately charge-sheet was also filed against them.
6. As the offences involved in the case were triable by the Court of Sessions the case was committed for trial and the learned Addl. Sessions Judge, to whom the case was transferred, framed charges against the accused persons, namely Trinayan Debbarma alias Tia, Kishore Jamatia, Manichand Jamatia, Udaimanik Jamatia and Debashis Reang. At the time of trial, except accused Manichand Jamatia and the present appellant Udaimanik Jamatia, others had absconded. Hence, the trial was proceeded only against these two accused persons.
7. The charges framed by the Trial Court against the accused persons are as follows:â
âFirstly, that on or about the 31st January, 2000 at about 11 a.m. at Hachupara you abducted Chandan Das, Sankar Sharma and Indrajit Chakraborty in order that their relatives might be compelled to pay ransom and thereby committed an offence punishable under Section 364A of the Indian Penal Code and with the cognizance of the Court of Session:
Secondly, that you, at any time between 31-1-2000 A.D. and 7-6-2001 .D. at Woaimuli Hills within RK Pur Police Station committed murder by intentionally causing the death of Sankar Sharma and Indrajit Chakraborty and thereby committed an offence punishable under Section 302 of the I.P.C. and within the cognizance of the Court of Session.
Thirdly, that you at any time between 31-1-2000 A.D. and 7-6-2001 at Woaimuli Hills within RK Pur Police Station knowing that certain offence to wit the offences of murder and abduction punishable with imprisonment for life/death have been committed, did cause certain evidence of the said offences to dis-appear, to wit buried the dead bodies of Sankar Sharma and Indrajit Chakraborty with intention of screening yourselves from legal punishment, and thereby you committed an offence punishable under Section 201 of the Indian Penal Code, and within the cognizance of the Court of Session.
And I hereby direct that you be tried on the said charges by this Court.â
8. The accused persons pleaded not guilty and claimed to be tried.
9. Prosecution case is wholly based on circumstantial evidence as there is no direct evidence so far as commission of offence of murder and concealment of the dead bodies are concerned. Though one of the abducted persons, namely, Hazar Ali (PW 3) was released by the extremists, he did not depose anything against the accused persons who were tried regarding the offence of abduction.
10. The case of the prosecution is mainly based on the confessional statement of the accused appellant at whose instance the skeletons of deceased Sankar Sharma and Indrajit Chakraborty, abducted persons, were found with their wearing apparels and the relatives of those persons identified the skeletons, which were disinterred from the buried place, to be the skeletons of Sankar Sarma and Indrajit Chakraborty. Before the recovery of the skeleton, police got information regarding the murder of the aforesaid three persons from accused Padma Jamatia in connection with another case, and while he was in police custody, he stated that he along with Udaimanik Jamatia, Tia Debbarma, Dia Reang and Ors. kidnapped the above named three persons in the month of January, 2000 and handed over them to one Birananda Jamatia and Pushpa Sadhan Jamatia and subsequently these three persons were killed by them and buried in the jungle. The prosecution, to prove its case, examined as many as 17 witnesses including the official witnesses.
11. Learned Trial Judge, after recording the evidence of all the witnesses and examining the accused appellant and another, found that the skeletons recovered are the skeletons of the brothers of PW 6 and PW 7, who were abducted, as those skeletons were recovered in consequence of the information given by the accused appellant herein, while he was in police custody and such information is admissible under Section 27 of the Evidence Act and presumption would be against the accused appellant, in view of provisions of Section 114 of the Evidence Act, and thus convicted the accused appellant though acquitted Mani Chand Jamatia from the charges levelled against him.
12. Mr. Deb while urging for setting aside the order off conviction and sentence, as impugned, would contend that the judgment and order of the learned Sessions Judge is not sustainable in view of the evidence on record as well as the decisions of the Apex Court in various cases, and on the ground that there is nothing on record to show from the evidence of any of the prosecution witnesses that the appellant had at any time abducted the deceased persons. Even from the deposition of PW 3 Hazar Ali, who accompanied the abducted persons in the same vehicle from where they were abducted by the extremists, there appears no evidence that the accused appellant, at any time demanded any ransom from the relatives of the abducted persons, for their release, who were ultimately killed.
13. Referring to the chief of PW 3 Hazar Ali, Mr. Deb also pointed out that the said witness could not even identify the present appellant while he was in dock at the time of trial. According to him, PW 3 was the best person who could say as to who were the extremists who had abducted the deceased persons along with him, prior to their death, from the vehicle in question and when he himself was not in a position to identify the present appellant, then the basis for conviction of the present appellant by the Sessions Judge, under Section 364A is doubted and not at all sustainable. He further urges that the learned trial Court mainly relied upon PW 2, PW 3, PW 6, PW 12 and PW 13 for convicting the present appellant under Sections 364A, 302 and 201, I.P.C. and sentence thereto.
14. Mr. Deb, while attacking the judgment of the learned trial Court further contended that the learned trial Court while believing the story of leading to discovery of the skeleton of two deceased persons namely, Indrajit Chakraborty, brother of PW 6 Abhijit Chakraborty and Sankar Sarma, brother of PW 7, did not properly evaluate the evidence of PW 6 and PW 7.
15. In support of his aforesaid contention he referred to the evidence of PW 6 wherein the said witness had stated that the searched for his brother and others and did not find them and subsequently he paid Rs.11,000/- to one Balaram Jamatia for releasing his brother and other kidnapped persons with whom Tia alias Trinayan Debbarma was also there and even after providing money for releasing his brother and other abducted persons, they were not released, subsequent to which the present appellant had shown the skeleton of his brother and others and ultimately, the skeletons of Indrajit and Sankar were recovered from Woaimuli Tilla by way of disinterring in presence of the police, wherein the present appellant had shown the skeleton and he had also identified the present appellant in the dock, but referring to the cross of the aforesaid witness, Mr. Deb contended that this witness was not even present at the time of disinterring of the skeletons of the abducted persons as would be evident from his cross wherein the said witness had specifically stated inter alia, ââ¦â¦ I have stated to the police officer that on the date of disinterring the dead body I was not present there because of my ailment and due to the long distance, I have not identified the dead body of my brother because I was not present there on that date.â
16. Mr. Deb also pointed out that in his cross, he had specifically stated that the day on which the skeletons were disinterred he was not present there but prior to that he went there with the police. Therefore, from the aforesaid statement, it can be easily presumed that prior to disinterring the skeletons, allegedly by the present appellant, the police as well as PW 6 went there and they identified the place of disinterring the skeletons and the said visit of the police officials and PW 6 is to be considered as leading to discovery of the place where the skeletons of the deceased persons were buried, and subsequent alleged discovery, if any, by the present appellant cannot be considered as leading to discovery.
17. In support of his aforesaid contention he placed reliance on a decision of the Apex Court in State in Karnataka v. M.V. Mahesh, (2003) 3 SC 353 wherein the Apex Court in a case where the deceased was last seen in the company of the respondent-accused and ultimately her skeleton was recovered and upon DNA examination of the bones found by the police, identified to be of Beena and ultimately filed charge-sheet and upon trial the trial Court convicted the respondent-accused and the High Court of Karnataka acquitted the respondent and the State of Karnataka preferred appeal and while deciding the appeal, the Apex Court noted inter alia, âwhether the statement made by him orally led to the discovery itself is in doubt inasmuch as the police had already information through another witness and that circumstance was strongly relied upon by the High Court. The High Court held that the statement made by the respondent, if at all, will not lead to any discovery inasmuch as the information was already in possession of the police and that reasoning cannot be faulted with.â
18. In the instant case also it appears that before disinterring of the skeleton of the deceased, who were abducted from the vehicle, as stated supra, prior visit of the police was there along with PW 6. Thus, according to us, the contention of Mr. Deb has some force.
19. He further contended that neither the bones/skeletons of the abducted persons were sent for chemical examination nor was there any DNA test of the bones, and in absence of the DNA examination, it is not possible to fortify as to whether the skeletons recovered are the skeletons of the brothers of PW 6 and PW 7.
20. He further contended that evidence of PW 7 is also faulty as PW 7 in his deposition-in-chief specifically stated that his brother wrote a letter to them that was not submitted by him to the police and he only identified the skeleton, as discovered, to be of his brother on the basis of the wearing apparels, i.e. shirt and pant, but he nowhere stated that he had seen this shirt and pant on the body of his brother when he was alive or at any time when he had put on those garments.
21. Mr. Deb further contended that police though seized four letters by way of preparing seizure list but the letter written by the brother of PW 7, Sankar Sarma was not on record as recorded by the learned trial Court.
22. Mr. Deb to disprove the allegation leading to discovery by the present appellant took us through the evidence of PW 12, Jhunu Saha on whom the learned trial Court placed much reliance and contended that said PW 12 in his evidence specifically stated that some police officers with staff were there with the accused appellant. It appears from the deposition of the said witness that the police officer told one man to dig certain place where some bones were found in the grave and he also helped in digging the place. Therefore, from the evidence of the said witness it cannot be established that it is the appellant who had led to the place where the dead bodies were kept, for the purpose of disinterring the same.
23. He finally took us through the evidence of PW 13, Subhas Shil the sweeper who was there at the time of digging and disinterring of the dead bodies, who stated that prior to the date when the skeletons were found by digging the earth they went there with accused Udaimanik but he has not shown the place. Only on a subsequent date when they again went there, the accused was fed with sweets and jackfruit with fried rice and thereafter, one day the accused had shown them where the dead bodies were buried and thereafter they went there with the police, TSR, SDO, relatives of the deceased, the place shown by the accused. From such contention of PW 13 any reasonable person can easily come to a conclusion that even the appellant was also not aware of the exact place where the dead bodies were buried. Probably due to feeding of a good meal, the present appellant had succumbed to the suggestion of the police for showing the place though he was not aware and if the said evidence is accepted, then also, the same is hit by Section 24 of the Evidence Act.
24. Mr. Sarkar, learned PP while supporting the order of conviction and sentence would contend that the deceased were abducted by the extremists and from the evidence of the witnesses, it is established that it is the appellant alone who helped the police for discovery of the skeleton of the abducted person from the buried place. Such discovery of the skeleton by the police, with the information of the appellant, establishes that it is the appellant, who concealed the dead bodies and he was aware of the place where the dead bodies were buried, after killing the abducted persons and he was also party to the murder.
25. Mr. Sarkar even did not wholeheartedly support the order of conviction and sentence passed by the learned Sessions Judge, in the impugned judgment, he only urged that from the evidence on record, it can be said that a case under Section 201, I.P.C. is made out against the appellant and not under Section 364A or 302, I.P.C.
26. In Mohamed Inayatullah v. The State of Maharashtra, AIR 1976 SC 483 the Apex Court while noted, inter alia, although interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the Section and be reminded of its requirements and ultimately discussed about Section 27 and stated that the expression âProvided thatâ together with the phrase âwhether amounts to a confession or notâ shows that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It is further noted that it will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in a consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only âso much of the informationâ as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word âdistinctlyâ means âdirectlyâ, âindubitableâ âstrictlyâ âunmistakablyâ. The word has been advisedly used to limit and define the scope of the provable information. The phrase âdistinctlyâ relates âto the fact thereby discoveredâ (sic) (and) is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered a consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
In several other decisions the Apex Court also discussed about the expression, âfact discoveredâ and has stated that at one time it was held that the expression âfact discoveredâ in the section is restricted to a physical or material fact which can be perceived by the senses, and it does not include a mental fact, and also settled that expression âfact discoveredâ includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this. (See Palukuri Kotayya v. Emperor, AIR 1947 PC 67).
27. In Palukuri Kotayya (supra) the learned Judge stated that Section 27 of the Evidence Act provides an exception to the prohibition imposed under the Evidence Act to accept the statements made before a policy by a person while in custody of the police. Palukuri Kotayya (supra) has been discussed by this Court in Dhalai Ram Reang v. State of Tripura, (2010) 1 GLR 277 wherein one of us was a party (Saha J). Paragraph 0 of Palukuri Kotayya (supra) is as follows:â
10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused.â¦â¦â¦â¦ âfact discoveredâ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate-distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that âI will produce a knife concealed in the roof of my houseâ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added âwith which I stabbed Aâ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.â
From a reading of the findings of the Apex Court in Palukuri Kotayya (supra) we are of the considered opinion that the admissible part of the statement of the accused is the part which reveals that he was aware of the exact burial place of the victim since it is at his instance, the body of the victim was disinterred from the place shown by him to the police and such statement made by the accused regarding his involvement with the abduction/murder of the victim cannot be considered as admissible evidence under Section 27 of the Evidence Act.
28. In the instant case, it appears from the evidence of the witnesses that the accused appellant, Udaimanik Jamatia was though taken to the place from where the skeletons were disinterred but he could not locate the place for one or two days. Only after he was fed with sweets, jackfruit and fired rice, the accused one day showed the place where the dead bodies were buried as would be evidence from the evidence of PW 13, Subhast Shil. Therefore, it can be said that he was not aware initially about the exact burial place of the deceased persons but ultimately shown the place at the instance of others. Had the accused appellant been aware of the burial place, he would have shown the place on the first day itself. Moreso, it is also the admitted position that neither his deposition regarding his awareness of the exact burial place of the victims from where the skeletons as required, not even produced the case diary before the court where allegedly noted the fact relating to his statement.
29. In Peerappa and Ors. v. State of Karnataka, (2005) 12 SCC 461 the Apex Court discussed in what circumstances Section 27 would apply so far the hidden materials/weapons shown by the accused and the same would be admissible under Section 27 or Section 8 of the Evidence Act. The relevant portion is quoted hereinunder:â
â12. Regarding the recovery of weapons on the basis of the alleged disclosure made by the accused, the trial Court commented that no blood was found on the weapons. Moreover, the learned trial Judge observed that the places from which A1 to A4 produced the articles were accessible to public and therefore no reliance can be placed on such recovery. Another reason given by the trial Court was that the I.O. did not record the statement of A1 to A4 in the diary before proceeding to the place, but he made A1 to A4 repeat the same information in the presence of the panch PW6 and therefore the statement made by A1 to A4 cannot be said to be an information to the police which led to the discovery under Section 27 of the Evidence Act. The trial Court placed reliance on a case reported in 1964 Mysore Law Journal 185. Here also we find that the High Court did not deal with the reasons given by the trial Court. The High Court merely referred to the evidence in regard to the recoveries and held that they were proved beyond doubt. Though we feel that some of the reasons given by the trial Court for discarding the recoveries are not correct, we are not convinced that there is satisfactory evidence regarding recovery of weapons. PW6 stated that he did not enter the dilapidated house in which A2 and A4 allegedly pointed out the knife (MO11) and jambia (MO12) respectively which the police seized. In the course of cross examination, he further stated that he was standing outside the house along with another panch and police officer. Moreover, PW6 also stated that neither A2 nor A4 informed him that he had kept the knife in the dilapidated house. The trial Court found that the I.O. did not record the information anywhere. But the prosecution version is that in the presence of panchas, the accused orally revealed at the police station, about the factum of hiding the weapons at that particular place. But, it is belied by the evidence of PW6. So also, in the case of A1 and A3, PW 6 stated that they did not inform him in the FIR about the place where they had kept the axes (MOs 9 and 10). He further stated that when A1 and A3 produced axes, he, another panch and the police were sitting on the road in front of the temple. Therefore, the panch witnesses did not actually see the deceased pointing out to the police the hidden weapon. Moreover, there was no proof of any prior information passed on to the police in the presence of panch witnesses as claimed by the I.O. In these circumstances, no reliance can be placed on the evidence as to recovery so as to make it admissible either under Section 27 or Section 8 of the Evidence Act.
30. As an appellate Court, our duty is not only to consider the submission of the learned counsel for the parties but also to survey the evidence on record. Accordingly, we have surveyed the evidence of those witnesses and the evidence of PW 2, Sri Jitendra Reang, the driver of the vehicle from which the deceased were abducted, PW3, Sri Hazar Ali, one of the abducted persons who was subsequently released, PW6, Sri Abhijit Chakraborty, brother of the deceased Indrajit, PW 7, Sri Dipak Sharma, brother of deceased Sankar, PW 12, Jhunu Saha, a seizure witness and PW 13, Sri Subhash Shil the sweeper present at the time of disinterring of skeletons and PW 16, Indrajit Sinha, IO of the case is discussed hereinunder.
31. PW 2, Shri Jitendra Reang, driver of the vehicle from which the deceased were abducted by the extremists, in his evidence stated that while the Commander Jeep was proceeding from Tainani to Garji at about 12 noon about five extremists appeared on the road and stopped his vehicle and kidnapped the Bengali passengers namely, Hazar Ali, Chandan, Sarkar and Indrajit and out of those five extremists he could only identify Tia Debbarma and Kishore Jamatia and could not identify the other miscreants. He also stated that he informed regarding the incident to informant, Keshab Biswas.
The prosecution ultimately declared this witness hostile.
32. PW3 Hazar Ali, who was abducted by the extremists and subsequently released, stated that when he was coming by a jeep car of PW 2 from Tainani to Garji and when they reached Hachupara suddenly 5/6 extremists appeared on the road and stopped the vehicle. Out of those five extremists one of them had a revolver and others had lathis in their hands. He also stated that he cannot say the name of the person in whose possession the revolver was but could identify only Tia Debbarma and none else, who abducted the four Bengali passengers including him along with Sankar, Chandan and another Hindu person most probably Chakraborty. He could not identify the accused appellant while he was in the dock.
33. It appears from the record that there were two PW-6, namely, Sri Rabindra Kumar Bhowmik and Abhijit Chakraborty. Sri Rabindra Kumar Bhowmik did not say anything about the involvement of the present appellant and thus the defence also did not cross-examine him.
34. Sri Abhijit Chakraborty, brother of deceased Indrajit Chakraborty in his statement stated that along with his brother another three persons were kidnapped by some extremists, while they were going towards Garjee market, by a vehicle. He searched for his brother and others but could not find them. Subsequently, he paid Rs. 11,000/- to one Balaram Jamatia for releasing his brother and other kidnapped persons. At the time of making payment, along with Balaram Jamatia, Tia @ Trinayan Debbarma and Mani Chand Jamatia were also with him. He also stated that Balaram Jamatia assaulted him on the plea of less payment but he did not inform anyone regarding the incident of assault as they would not release his brother. Even after receipt of money they did not release his brother and other abducted persons. Subsequently, appellant has showed the skeletons of the dead body of his brother and others. The skeletons of his brother, Indrajit Chakraborty and Sankar were recovered in his presence from Y-Moli Tilla. The skeletons were under the earth and appellant Udai Manik Jamatia showed the skeletons of the dead body of his brother and others. He identified accused Udai Manik Jamatia and Mani Chand Jamatia and stated that Balaram and Tia are not present.
In his cross, he stated that he made a statement to the police officer that on the date of disinterring the dead body he was not present there because of his ailment and due to the long distance. He has not identified the dead body of his brother because he was not present there on that date. He has not seen the clothes at the time of disinterring but subsequently he has seen the clothes. He further stated that he has not seen the place from where the skeletons with the garments were disinterred but prior to that he went there one day, with the police. He confirmed his statement in chief, inter alia, that Mani Chand Jamatia was there with Trinayan Debbarma and Balaram Debbarma.
35. PW-7, Shri Dipak Sharma, brother of another deceased person Sankar Sharma stated that alleged occurrence took place on 31.01.2000 and his brother along with three others were kidnapped by some extremists. Out of the four abducted persons, one person was released by the extremists. He tried to get his brother released from the custody of the extremists for which he paid money. His brother also wrote a letter to us, he has not submitted the original letter but the photo copy of the same was handed over to the police and the said letter was seized by the police by preparing a seizure list and he put his signature as a witness in the seizure list. He also identified his signature which was exhibited and marked 6/1. On receipt of information from the police he went to Y-Moli Tilla with police official and one Magistrate was also present there along with Udai Manik Jamatia. He further stated that Udai Manik Jamatia searched for a while and thereafter found the skeletons. Shirt, Pant were found under the earth with the skeletons. He identified the clothes of his brother. He also stated that Uday Manik told them that Sankar Sharma and Indrajit Chakraborty were killed and buried in the same place. Police Officer took photographs and some documents were prepared by the Police Officer where he put his signature and ultimately identified his signature in the inquest report which was exhibited and marked 7/1. He also identified his signature in another inquest report which was exhibited and marked 8/1.
In his cross he denied the suggestion of the defence, inter alia, that Uday Manik did not lead them to Y-Moli Tilla for disinterring the dead body. He also stated that he made statement to the Police Officer before recovery of the dead bodies and met with the Police Officer twice. He also denied the suggestion that after disinterring the dead bodies he did not depose to any Police Officer but a certificate was issued by the police Authority and Uday Manik led them to that place where the dead bodies were disinterred. He also denied the suggestion that he could identify the skeleton of his brother with the help of garments and Uday Manik did not state to them that he killed his brother and Indrajit Chakraborty and buried in the same grave.
36. The prosecution examined two witnesses as PW-12, Sri Kapil Das and Shri Jhunu Saha. Kapil Das is a SI of Police who was working with the Officer-in-Charge of the RK Pur PS and aware of the signature and writing of Sri Bhabatosh Das, who received the note in the original FIR and he identified the signature of Bhabatosh Das. He also stated that he is one of the investigating officers who investigated the case and has visited the place of occurrence and prepared the sketch map. He has identified the sketch map (Exhibit-10). He further stated that he has arrested Kishore Jamatia and Trinayan Debbarma @ Tia and thereafter being transferred he has handed over the case docket to the O/C of the P.S.
37. Another PW 12, Sri Jhunu Saha stated in his statement that on 07.06.2001 he went to the jungle in the Maharani area along with the police. He has also shown the accused appellant and stated that the accused appellant was there with them. He further stated that a police officer told one man to dig certain place and on digging some bones were found in a grave. He also helped in digging the place. Photographer took some photographs and the police officer prepared a document and he put his signature.
38. Prosecution also examined two witnesses namely, Indrajit Sinha and Subhash Shil as PW 13. Subhash Shil is the sweeper and he in his statement stated that prior to the date of disinterring the skeletons he went there 2/3 days with the accused appellant-Udai Manik Jamatia but he has not shown the place and on a subsequent day they again went there when the accused was fed sweets, jack fruit and fried rice and thereafter, on another day, the accused showed them the place where the dead bodies were buried. Thereafter, they went there with the police, TSR, SDO, relatives of the deceased and the place was shown by the accused and the accused stated digging the place thereafter they also helped him and the skeletons were found. The skeletons of two persons were found along with their wearing apparels. He also identified the clothes, which were marked Ext. M.O. 2 series and also stated that his friend Jhunu was also with him.
39. PW 16-Sri Indrajit Sinha is the police officer who was investigating the RK Pur PS case No. 213/2000 in connection with which Padma Jamatia was arrested. He further stated that on interrogation, Padma Jamatia confessed that Udai Manik Jamatia, Birananda Jamatia, Tiya Debbarma, Biya Reang, Puspa Sadhan Jamatia were his associates and this Padma Jamatia, Udai Manik Jamatia, Tiya Debbarma and Biya Reang during the month of January, 2000 kidnapped three persons from jeep car and handed over these persons to Birendra Jamatia and Puspa Sadhan Jamatia. Padma Jamatia also stated to PW 16 that subsequently he came to know that in the love story market Birananda Jamatia and Puspa Sadhan Jamatia received ransom from the relatives of the kidnapped persons, namely, Indrajit Chakraborty, Chandan Das, and Sankar Sharma. Padma Jamatia further stated to him that he accordingly met Udai Manik Jamatia and enquired about the said kidnapped three persons to which Udai Manik reported that these three persons were killed and buried in a jungle. Padma Jamatia also stated to him that at the time of killing and burying the dead body he was not present. PW 16 further stated that subsequent to the information received from Padma Jamatia, he arrested Udai Manik Jamatia, present accused appellant, who was already in custody in connection with another case and he also shown arrested the accused Biya Reang and Puspa Sadhan Jamatia. It is further stated by PW 16 that Udai Manik made confessional statement to him and on the basis of the said confessional statement it was found that accused Udai Manik Jamatia could produce the dead bodies and accordingly, he himself with police personnel, one Executive Magistrate and the relatives of the deceased and some other persons went to a place and found the skeletons, where Udai Manik led them and on being shown Udai Manik Jamatia dead bodies were disinterred and they found skeletons and the dress. The relatives of the deceased persons identified the dress and were seized. He also stated in his evidence that he has not separately recorded the confessional statement of the accused but made note in the CD. He identified the seizure list as prepared by him as well as the inquest report which were exhibited.
In his cross he stated that he has not sent the skeletons for examination by specialist and has not collected the soil of the grave. He also stated that he has not requested the Forensic Authority to determine the sex of the skeletons and has not got the wearing apparels medically tested. He also stated he has informed the O.C. about taking of one Executive Magistrate but he has not submitted any such document before the Court to prove it, he also stated that he has not recorded the confessional statement of the accused person before or after recovery of the skeletons. He denied the suggestion of the defence, inter alia, that Udai Manik did not kill the said persons and did not burry the same though he admitted that Udai Manik Jamatia was in custody in connection with P.S. Case No. 252/2000, and in the CD three nos. have been noted, i.e. 252/2000, 35/2001 and ST 160/2000 and the accused person Udai Manik Jamatia was arrested in connection with any one of the above said cases. He stated that he has not put his signature on the photographs and has also not produced the negatives. He also denied the suggestion of the defence that Udai Manik Jamatia led to them to the place to show the place from where the skeletons were recovered.
40. From a bare reading of the evidence of the witnesses as quoted above, we find that there is no iota of evidence against the present appellant that he was involved with the alleged abduction as well as with the commission of murder and the learned PP rightly submitted that the prosecution failed to make out any case against the present appellant so far the offence under Section 364A and 302 IPC are concerned.
41. As the question remains only regarding offence committed under Section 201 IPC, it would be proper to discuss only about the said offence surveying the evidence in question.
42. Mere helping the authority for discovering the dead body/skeleton cannot itself establish that a person is involved unless by way of evidence it is established that the person is aware and he had/has reason to believe that an offence has been committed, and he is causing the disappearance of the evidence of the commission of offence with an intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. In the instant case, there is no evidence that the appellant tried to shield the offender intentionally and also had gone for disappearance of the evidence relating to commission of offence as required under Section 201 IPC.
43. There is no evidence that either he was himself involved in the murder of the abducted persons whose skeletons alleged to have been recovered or he had knowledge regarding the murder of those abducted persons. More so, from the prosecution evidence, it is also doubtful as to whether skeletons recovered from the buried place, as allegedly shown by the appellant, are the skeletons of the abducted persons i.e. the brothers of PW 6 and PW 7, in absence of any chemical or DNA examination. If further appears from the deposition of PW 16, IO wherein he admitted that he did not record any separate confession statement as required under Section 27 but noted the fact in the case diary, though said portion of the case diary was admittedly not exhibited for supporting his contention.
44. In M.V. Mahesh even when there was DNA examination which resulted in identifying the bones of the deceased therein, found by the police as that of Beena, who had disappeared, the wife of Mahesh, respondent therein, the Apex Court affirmed the order of acquittal passed by the High Court, disbelieving the prosecution story on the ground that last seen together is not enough. In the said, the Apex Court further ruled that what has to be established in a case of this nature is definite evidence to indicate that the deceased had to be done to death of which the respondent is or must be aware as also proximate to the time of being last seen together.
In the instant case, even there is no evidence that the present appellant was last seen together with the deceased brothers of PW 6 and PW 7, for whose murder the prosecution initiated the police case and subsequently filed the charge sheet and put the appellant on trial. To establish that the skeletons recovered, were the skeletons of the deceased namely, Indrajit Chakraborty and Sankar Sharma, the prosecution should have gone for DNA test. Though DNA test itself is also opinion evidence and conviction on the basis of opinion evidence is always not saved, for which the Apex Court in catena of decisions said when there is difference between the opinion evidence and directed evidence, the Court should not act on opinion evidence.
45. In a criminal case, presumption and assumption have no place unless the case is wholly based on circumstantial evidence. In the instant case, there is no evidence available against the present appellant for commission of offence under Section 364A and 302. We are of the considered opinion that the learned Sessions Judge failed to consider the evidence on record and arrived at a wrong finding and consequent thereto convicted the present appellant under Section 364A and 302 IPC while acquitting another accused person. Thus, the conviction and sentence passed by the learned trial Court against the appellant under the aforesaid sections are not sustainable and hence, the same is set aside.
46. Even when the accused-appellant admittedly did not participate in the abduction of the deceased persons and subsequent thereto in the murder and consequently acquitted from the charges leveled against him under Section 364A or 302 IPC, then also an accused like the present appellant can be convicted under Section 201 IPC, but for such conviction his active participation in disappearance of the evidence has to be proved.
47. From the evidence on record it is the admitted position that before digging up the buried place for recovery of the dead bodies/skeleton, the appellant was taken there 2/3 days prior to recovery of the skeleton which would be evident from the evidence of PW 13 but then also he could not identify the alleged place of concealment. Had he been party to the concealment of dead bodies, he would have identified the place on the first day itself.
48. Even if it is admitted that the skeletons were recovered from a place as shown by the appellant then also the prosecution failed to connect him with the offence under Section 201 as no such evidence is there on record that he was aware about the murder of the deceased persons. Thus, offence under Section 201 is also not made out. Hence, the conviction and sentence under Section 201 also cannot sustain and is accordingly set aside.
49. In the result, the appeal is allowed.
50. The accused shall be released forthwith if he is not connected with any other offence for which his detention is called for.
Appeal allowed.