P.G. Agarwal, J.
1. Life seems to have become an expendable commodity in a remote village of Uriamguri Baligaon under Gogamukh Police Out Post under Dhakuakhana P.S. where a group of young boys decided to start an organisation under the name of and style of 'All Assam Tiger Force'. The avowed object of the said organisation is not known but as we know all organisations need money to run the same. The members of the said organisation also were in need of money and they decided demanding and collecting ransom as the best way to finance their organisation. Accordingly, it was decided to kidnap two minor boys and on the ill-fated day, that is, on 28.6.1999, while Keshab Taid, son of Bindeswar Taid, aged about 10 years, and Rabindra Taid, son of Nandeswar Taid, aged about 6 years, were playing with their friends, the two accused appellants Jitu Pegu and Paramananda Pegu paid Rs. 5/- to... Krishna Dolley to call Rabindra and Keshab and accordingly, the two boys were called to the spot. The accused persons gave them some jamus and thereafter sent the other boys keeping Rabindra and Keshab by show of force. When the two, boys did not return home, the villagers gathered and started search and in spite of search for the entire night the boys could not be traced out. In the next day morning, Padma Nath Doley found the dead body of Keshab under a boat, which was stationed at Mara Subansiri Jan, a small water channel. The dead body of the other boy Rabindra Taid was found tied with a chain in a corner of the yard of the homestead of PW- 4. The police was informed and accordingly in presence of an Executive Magistrate, the dead bodies were recovered. The silver chain belonging to Rabindra was produced by the accused Jitu Pegu and it was seized by police.
2. On the basis of the statement of the above boy, the two accused persons were arrested and they were brought to the court, where judicial confessions Under Section 164 Cr.PC (Exts. 7 and 8) were recorded by Liakat Ali (PW- 22). The two accused appellants were charge sheeted and the learned Sessions Judge, Dhemaji, framed charge Under Section 365/302 IPC against the two accused persons in Sessions Case No. 50(DH)/2000 (GR Case No. 85/99).
3. During trial, the prosecution examined as many as 29 witnesses. The defence examined three witnesses including the two accused persons, whose statements were recorded Under Section 315 Cr.PC. On conclusion of the trial, the learned trial Court convicted the two accused appellants Under Section 365/302 IPC and sentenced the two accused appellants to death for the offence Under Section 302 IPC. No separate sentence was awarded for the offence Under Section 365 IPC. Hence, the present appeal and the Death Reference, which are heard together and disposed of by this common Judgment.
4. Dr. R.K. Barkataky (PW- 23) held the Post-Mortem examination over the dead body of Rabindra Taid and found as follows : -
'During examination I found that the body is decomposed and maggot forming over the spleen. The spleen became blaken and swollen. Rigormortis is absent. Eyes are bulged out and destroyed. The tongue is protruded. So, the half open month. There is no givid wound and bruise over the skin. There is no ligaputere mark over the body. Due to decomposition simple abressions can't be determined.
On examination of health - there is swollen and hematoma in the mid line of scalp. There is linear fracture by laterally extended up to both sides of temporal bones. The fracture was in the mid part of the parietal bone.
On examination of cereteral mambrane there is blood in the mid part where the fracture lies.
On examination of brain there is blood cot on the mid part of upper surface of the brain.
Other parts of the body examined -I have not found any abnormality. So to my opinion the cause of death is due to head injury.
5. Dr. Jamadogni Upadhyay (PW- 24) conducted the post-mortem examination over the dead body of Keshab Taid and found as follows :-
'The dead body is having rigormotis all over the body. The dead body is not decomposed. Bleeding per nose, mouth and right ear is seen. The whole face is congested with blood. There is an abression on neck in its front side, the size of about 1' x 2 ' horizontally. On dissection of the neck the neck muscles and laruings with tongue are found congested with blood. The root of the tongue is found swollen. The right ear cavity wall is found ruptured downwards of about 1' extension with ante mortem haemorrhage. There are two haematomas on the scalp, one on the right partial and another on the left partial region. The size of each hemeture is about 2' in diameter. On dissection two haematomas of about 1' diameter are seen underneath the scalp haematomas, inside the brain (cerebrum). The heomorage is ante-mortem. Lerings found congested with blood. Mouth, pharynx, oesophagus are found congested. Stomach contained food materials (Rice).'
In the opinion of the doctor, the death was due to coma following brain injury and/or asphyxia following an way distinction of neck.
6. In this case, a large number of witnesses have deposed about missing of the two boys in the evening of 28.6.1999 and subsequent recovery of the dead bodies on 29.6.1999 on which date the post mortem was held. In view of the overwhelming oral and medical evidence on record as regards the death of the two young boys and considering the fact that there was no meaningful cross examination of the two doctors, PWs 23 and 24, in this case, the learned counsel appearing for the accused appellants had not disputed or challenged the death, which the trial court held to be a case of homicide. On consideration of the entire evidence and other materials available on record, we hold that the prosecution has been able to establish that the deaths of Rabindra and Keshab were homicidal in nature.
7. As regard the genesis of the incident and kidnapping of the two boys, we have direct evidence of the eye witnesses, namely, PWs-1, 2 and 3. AH these three witnesses were aged about 10 years at the time of incident and they were students of Class-V. PW- 1 has deposed that on the date of occurrence at about 4 PM, while they were playing near the pig-farm, accused Jitu Pegu gave him Rs. 5/- to fetch Rabindra and Keshab and accordingly the two boys were called and PWs - 1, 2 and 3 spent the sum of Rs. 5/- by purchasing fried grams. Thereafter, the accused Jitu Pegu plucked some jamus and gave them and sent them away by a path. By Rabindra and Keshab were not allowed to come with them by telling them that the said two boys would be sent by a different way. They also threatened not to disclose the same, otherwise they will be cut to death. When they returned home, the village people asked PW- 1 about Rabindra and Keshab and he told that they would come by a different route. On the next day, the dead bodies were found by the villagers and the family members were informed about the incident. PWs-2 and 3 have also fully supported the evidence of PW- 1, and although they were examined at length, nothing has come out to show that they were deposing falsely. The fact that they did not immediately report the name of the accused Jitu had also been explained by them and being young boys aged about 10 years, they got frightened and this seems to be natural reaction and during these days of terrorism, even the grown-ups have not enough courage to overcome the fear of threats and they choose to stay safely by remaining silent. Padma Nath Doley (PW- 4) has deposed that in the evening of the day of occurrence, he learnt from one Sanjib Pegu regarding missing of the two boys, Rabindra and Keshab. He joined the villagers for search. During the night, they could not be traced out.
In the morning, he proceeded towards his fishing traps alongwith Manoj Pegu (PW- 20) and Maneswar Pegu (PW- 13) and reaching there, he saw the body of a boy under a boat. The police was informed and the police came along with an Executive Magistrate and the dead body was recovered. The statement of PW- 4 has been supported by PWs-13 and 20 and we find that the defence had not challenged their evidence as they were not cross-examined even.
8. Smt. Basanti Taid (PW- 5) is the unfortunate mother of Rabindra, who was the only son of the couple and she works in a bank. After return from work, she learnt about the missing of her son, Rabindra and Keshab, the eldest son of Bindeswar Taid. The village people searched for the two missing boys, but accused Jitu did not turn up. After search, they recovered the dead body of Keshab on the next day morning and the FIR was lodged by her. Deceased Rabindra's dead body was recovered on 1.7.1999. Azay Kr. Patir (PW- 8) is another co-villager who has deposed about the incident. After the recovery of the dead body of Keshab on 29.6.1999 the needle of suspicion fell on the accused Jitu Pegu as he has not participated in the search. The villagers came to his house and found him absconding. The police also wanted to catch hold of accused Jitu Pegu. It is also stated that four persons left the village in two motor cycles and they are at Majuli. Accordingly, PW- 8 accompanied the police party and traced out Jitu Peg at Majuli. The arrested accused also named the other co-accused. The said confessional statement is admittedly not admissible. The witness further deposed that as per the statement of accused Jitu Pegu, the dead body of Keshab was recovered. The evidence of PWs- 9 and 10 is not material. PW- 11 has deposed about the post crime conduct of the accused Jitu Pegu. PW-12 Krishna Pegu has fully supported the evidence of PW- 8 as stated above.
9. The other piece of evidence appearing against the accused appellant Jitu Pegu is that at the time of incident, Rabindra was wearing a silver chain (M.Ext. 1) and at the time of recovery of the dead body, the chain was to found in the body. The accused subsequently brought out the chain and it was seized.
10. In this case, we find that besides the evidence of the eye witnesses, as stated above, the trial court relied on the following circumstances to bring home the charge :-
'(1) The accused and the deceased were last seen together on 28-6-1999 at about 5 P.M. as stated by prosecution witnesses.
(2) Recovery of silver chain of deceased - Rabindra Taid by PW- 29 and Ors. from the place where the accused kept (sliver chain) (Material Ext.-1) which was being worn by the deceased - Rabindra ).
(3) Accused- Jitu Pegu fled away to Majuli.
(4) Confessional statement made by the accused.
(5) Extra-judicial confession made by the accused before PWs- 25, 28 and 29 and some others.
(6) Recovery of dead body of deceased - Rabindra at the instance of accused - Jitu Pegu.
(7) Opinion of Medical Officers (PWs- 23 & 24).'
11. So far the circumstance No. 5 is concerned, the extra judicial confession was made in presence of police as stated by PWs-25, 28 and 29 and hence, in view of the provisions of Sections 25 and 26 of the Indian Evidence Act, the said confession is not admissible. In this case, we find that the accused persons had also made extra judicial confession before PW- 22 and subsequently, there was a verification of the said confession, when the accused in presence of the above witnesses - PWs-28 and 29, had shown the place, where the incident took place and reconstructed the scene of occurrence by pointing the place and the manner in which the incident took place.
12. The circumstances have been established by the prosecution by leading cogent evidence and we find that no effort was made to dislodge the testimony of the co-villagers, who are all independent witnesses having no axe to grind against the two accused appellants.
13. Now, coming to the judicial confession, PW- 22 has deposed that on 5.7.1999, the two accused appellants Paramananda Pegu and Jitu Pegu alongwith five others were produced before him for recording their confessional statement. Except the two accused appellants, other five accused persons declined to confess and accordingly they were sent to judicial custody. The two accused appellants were also sent to judicial custody for reflection and they were produced before PW- 22 again on 6.7.1999. The two accused persons were cautioned as required and after giving them, another three hours time for reflection and on being satisfied that the confession is made voluntarily, he recorded the confessional statement of Jitu Pegu (Ext. 7). Thereafter, the learned Magistrate recorded the confession of the co-accused Paramananda and Ext. 8 is the said confessional statement.
14. The law regarding recording of confessional statement has been laid down by the Apex Court as well as this court in a catena of decisions. In the case of Kuthu Goala v. State of Assam 1981 Cri.L.J. 424 the Hon'ble Gauhati High Court speaking through Hon'ble N.I. Singh (J) and K. Lahiri (J) made the following observations :
'N.I. Singh, J. - The act of recording confessions under Section 164 Cr.PC is a solem act, and in discharging his duties under Section 164, the Magistrate must take care to see that the requirements of law must be fully satisfied. It should be necessary in every case to put the questions prescribed by the High Court circular, but the questions should not be allowed to become a matter of mere mechanical enquiry and no element of casualness should be allowed to creep in. The Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused as mentioned in Section 24 of the Evidence Act.
K. Lahiri, J. - The provisions of Section 163 is a safety valve meant to muzzle involuntary confession, otherwise the court should reject it. It must be made by the accused spontaneously on his own volition. The warnings set forth in Section 164 are merely illustrative and not exhaustive. To adjudge voluntariness, two basis factors should be taken note of; First, the existing mental condition of the prisoner. It must be assumed that the prisoner is labouring under mental agony or disorder. A man is peril undergoing distress and torture, worry and strain, is ordinarily not mentally fit person to make a statement to endanger his life and liberty. The prosecution must confirm that the judicial mind of the recording officer was satisfied by some objective tests, that a mentally disabled person coming from a criminal class was mentally fit enough to understand the implications of the warnings and to make a fatal statement.
Secondly, the Magistrate must satisfy the court by documentary or oral evidence that he had fully exercised his judicial mind to get the real motive of the impelling factor which promoted the prisoner to make the confession.'
15. In the case of Dhananjaya Reddy v. State of Karnataka, reported in (2001) 4 SCC 9 the Supreme Court in para-20 of the Judgment held as follows : -
'The function of the Magistrate in recording confession under Section 164 of the Code is a very solemn act which he is obliged to perform by taking due care to ensure that all the requirements of Section 164 are fully satisfied. The Magistrate recording such a statement should not adopt a casual approach as appears to have been shown by Shambulingappa (PW- 50) in this case. Besides ensuring that the confessional statement being made before him is voluntary and without pressure, the Magistrate must record the confession in the manner laid down by the Section. Omission to comply with the mandatory provisions, one of such being as incorporated in Sub-section (4) of Section 164 is likely to render the confessional statement inadmissible. The words 'shall be signed by the person making the confession', are mandatory in nature and the Magistrate recording the confession has no option. Mere failure to get the signature of the person making the confession may not be very material if the making of such statement is not disputed by the accused but in cases where the making of the statement itself is in controversy, the omission to get the signature is fatal.'
16. In the case of Kehar Singh v. State (Delhi Admn.), reported in AIR 1988 SC 1883, the Apex Court held that the compliance of Sub-section (2) of Section 164, Cr.PC, is mandatory and imperative, its non-compliance renders the confession inadmissible in evidence.
17. Section 164 Cr.PC provides for recording of confessions and Sub-clause (4) of the above section provides that confession shall be recorded in the mariner provided in Section 281 Cr.PC. The confession has to be recorded by observing all the formalities prescribed in Sections 164 and 281 Cr.PC. The requirements may be summed up as below :-
(1) Where to record.
The confessions should ordinarily be recorded in the open court and during court hours (AIR 1954 SC 462) unless there are special reasons for recording at the Magistrate's chamber, residence, in jail or at any other places. Such reasons must be noted.
(2) Removal of police influence before recording confession. Police should be removed to allay fear or suspecion in the mind of the accused. The atmosphere should be free.
(3) Warnings:
The accused should be told that he is before the Judicial Magistrate, independent from the police and, whether he made the statements or not, he will not be remanded to police custody. The accused should also be warned that he is not bound to confess, or make any statement and if he does so, whatever he will say will be recorded and it will be used against him in the trial. In the case of Gendra Brahma v. State of Assam 1981 Cri.L.J. 430, it was held by the Gauhati High Court that the Magistrate should put the questions to the accused as to how he was treated in the police custody and why he is making a confession. In the above case, Hon'ble Lahiri (J) also suggested that the accused should also be provided legal aid by the Magistrate before recording confessional statement. However, in another decision - State of Assam v. Henry W. Roberts, 1983 Cri.L.J. NOC 146, it was held that there is no obligation on the Magistrate to say to the accused that he can engage lawyer and take legal aid. There is no exact form of warning, but the accused should be made to understand the consequences of making the confession.
Provision of Sub-section (2) of 164 Cr.PC are mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence (Kehar Singh v. State, AIR 1985 SC 1893).
(4) To ascertain voluntariness, the Magistrate must put pertinent and searching questions; putting a few questions as a mater of mechanical enquiry is bad, rendering it unsafe to be relied on (Pitambar v. State of Assam 1980 Cri.L.J. NOC 151). Voluntariness being the foundation of Magistrate's jurisdiction, there must be real endeavour to find out whether the accused is confessing voluntarily or some influence or motive is at work. The length of police custody etc. should be enquired into and the questions put and the answers given must all be recorded to enable the Courts to determine the questions of voluntariness without any interference. There is no hard and fast rule as to how much time should be given for reflection.
18. In the instant case, we find that cross-examination of PW- 22 was in most perfunctory manner when a suggestion was given that he did explain to the accused that if he makes a confessional statement it will be used against him and it was only suggested that the confession has not been made voluntarily. So far the time of reflection is concerned, we find from the order sheet that the two accused persons were brought before the court on 2.7.1999 and thereafter they were given in police custody. They were brought from the police custody on 5.7.1999 and produced before the Addl. CJM, Dhemaji (PW- 22) who after examining remanded them to judicial custody on the night of 5.7.1999 and they were brought before PW- 22 on 6.7.1999. Thereafter, they were given some further time for reflection and subsequently Exts. 7 and 8 were recorded. In the facts and circumstances of the case, we hold that sufficient time was given to the two accused persons for reflection. So far the suggestion as stated above is concerned, on perusal of the Exts. 7 and 8, we find that the learned Magistrate has categorically informed the two accused persons that if they make a confession, it will be used against them and they will be punished to which accused replied 'I shall have no regrets even if I am punished; I committed a sin'.
19. In a catena of decisions the Apex Court held that in order to find out the voluntariness of the confession, the Magistrate is required to enquire as to why the detenu wants to make a confession and also assured the accused that even if he declines to make a confession, he shall not be sent back to police custody. Although the defence has not cross examined PW- 22 on the above two counts, we have perused the confessional statement - Exts. 7 and 8 to satisfy ourselves whether the learned Magistrate had complied with the above requirements or not. We find that PW-22, the learned Magistrate specifically told the accused :- 'Q. : - Why are you going to confess to your guilt You have already been told that you are not bound to make a confession'. The reply of the accused Jitu Pegu is that 'I know. But I want to purify myself of the sin that I committed by killing Keshab, a 9 year old minor boy.' The reply of the other accused is also in the similar line. So far the other question is concerned, we find that there was no direct assurance on that count but the Magistrate did enquire from the accused persons whether they are confessing the guilt out of fear or at the dictates of others and the accused persons replied that no body had threatened them. The Magistrate also did not find any injury or marks of violence on the person of the two accused appellants. As regards the omission, the learned P.P. has submitted that in the instant case, the above omission is immaterial as because apart from the accused appellants, five other co-accused were sent to PW- 22 for recording their confessional statement and except the two accused persons, the remaining five declined to confess on 5.7.1999 itself and they were sent to judicial custody alongwith the two accused persons. Thus, the two accused persons very well knew that even if the accused decline to confess, they will not be sent to police custody again. We find force in the above submission and accordingly hold that in the facts and circumstances of the present case, the omission to specifically assure the two accused persons is not fatal to the prosecution and the two confessional statements (Exts. 7 and 8) can not be thrown out of consideration on that count and we concur with the finding of the trial court that the confessional statement was made voluntarily. The confessional statement of accused appellant Jitu Pegu reads as follows :-
'As early as in March this year, we, some youths, sat in a meeting in a field to start an organisation, 'Assam Tiger Force' by name. Those other than me were Paramandnda, Kanta Pegu, Kanuram Pegu, Ajanti Pegu, Kirtinath Doley and Bhuban Nath. The organisation started. I was the Secretary. Kanta Pegu was the President. That very day we decided at the meeting to kidnap Rebat Khanikar's son for ransom. All of us together we tried thrice, but could not kidnap the boy. Later we decided to kidnap Keshab Taid and Rabindra Taid, two minor boys of our village, for ransom. On 28.6.1999 I sent for Keshab and Bhaiti (Rabin). I had engaged Prasanta, Manjit and Harekrishna of our village for the purpose. They (Keshab and Rabin) were playing. Then I took them to a jamu tree, saying that I would give them Jamu. It was then around 5.30. I detained Keshab and Rabin against their will and rebuked the rest three away. Keshab and Bhaiti wanted to leave, but I enticed them to stay on. Thereafter I called Parama Pegu in. We sat down there for a while. Then we learnt that the villagers were searching for the boys. Then I and Parama decided to kill the boys. Accordingly we tied Keshab's hands up and gagged him with paddy straw. Then we strangled him to death and threw the body into the nearby water. We then placed a boat on the body in overturned position. Parama took Bhaiti (Rabin) along and strangled him to death not far away. He threw the body to the 'dhap' (a raised ground along a boundary of a yard - Translator) in the bamboo grove. Then we left the place. On Wednesday I went to Barpamua in Majuli where the police arrested me.'
20. The confessional statement of accused Parama Nanda Pegu reads as follows:-
'In March this year I and some youths sat in a meeting in a field to start an organisation, 'Assam Tiger Force' by name. The organisation was started. I, Ajit Pegu, Kantaram Pegu, Mahananda Pegu, Kirtinath Doley and Sadananda Pegu were there in the organisation. Jitu Pegu was the Secretary of the organisation. Kanta Pegu was the President. In that meeting we decided to kidnap Rebat Khanikar's son for ransom. We tried thrice to kidnap that boy, but failed. Then we decided that we would kidnap Keshab and Rabin alias Bhaiti of our village for a ransom. Accordingly Jitu, brought Keshab and Rabin along to a jamu tree. Jitu called me. Reaching there I found Rabin and Keshab there. There we sat down. Leaving them there, we were searching for a place (to hide the boys). But after a little while we heard the noise of a crowed. Then we decided that we would kill the boys. The rest of our organisation had not turned up. I took Bhaiti (Rabin) to a bamboo grove to kill him there. Jitu took the older boy, Keshab, to kill. I killed Bhaiti by strangling and left the body on the 'dhap' in the bamboo grove. Thereafter I cam home. In the morning on 30.6.1999 the police arrested me.'
21. The law is more or less well settled that where confession is to be made basis for conviction, the court must before acting upon the confession, reach the finding that what is stated therein is true and reliable. There is no rigid cannons of application of evaluate evidence. In the light of the surrounding, circumstances and probabilities of the case and if, on such examination, the confession appears to be probable one, and the contextual events naturally fit with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test of truthfulness.
22. From the evidence and materials available on record, we find that this is a case of kidnapping of two minor boys for collection of ransom and thereafter killed and disposed of the dead body of the two minor boys in a brutal manner. The dead body was recovered within 12/14 hours of the incident and the dead body was recovered at the instance of one of the accused appellants. It is well established that this is not a case of death by accident or suicide but this is a case of homicide. The post crime conduct of the two accused persons is also relevant and material. They were found absconding and the investigating police officer has stated that they fled to Majuli wherefrom they were apprehended. The evidence of the investigating police officer stands fully corroborated by other witnesses. In the case of Dhananjoy Chatterjee reported in (1994) 2 SCC 220 the Apex Court held as follows :
'We are conscious of the fact that abscondance by itself is not a circumstance which may lead to the only conclusion consistent with the guilt of the accused because it is not unknown that innocent persons on being falsely implicated may abscond to save themselves but abscondance of an accused after the occurrence is certainly a circumstance which warrants consideration and careful scrutiny,'
23. In the present case, the matter does not stop at mere absconding. The investigating police officer (PW- 29) has deposed that on his arrest Jitu Pegu told him that he will show Rabindra's body and thereafter he brought Jitu Pegu from Majuli and reached Gagamukh police outpost. Thereafter as shown by Jitu Pegu the dead body of Rabindra was found in a ditch in a bamboo grove. PW- 26 and other prosecution witnesses were present when the dead bodies were recovered at the instance of the accused. The silver chain (M.Ext.) was also produced by the accused and the same was identified by the mother and seized vide seizure list (Ext. 1). In this case, no statement Under Section 27 of the Evidence Act was proved or exhibited during trial. In the case of Alphus Munda v. State of Assam, reported in (1996) 3 GLT 568, this court held that 'there is no contemporaneously prepared record of this information. I am aware that Section 27 of the Evidence Act does not provide for writing the information given by the accused, it can be verbal and can also be proved against the accused.' In the present case, the I/O and the other prosecution witnesses have all deposed that the dead body of Rabindra Taid was recovered at the instance of the accused appellant Jitu Pegu and the silver chain (M.Ext. 1) was recovered at the instance of the accused appellant. The defence suggestion was denied by the I/ O and other witnesses.
24. In this case, the scene of crime was recreated by the accused appellant in presence of the Executive Magistrate Chittaranjan Das and other villagers who have deposed about the same and their evidence remained unchanged.
25. Thus, we find that the confessional statement as quoted above fully supports the prosecution allegation/prosecution version of the incident as unfolded during trial. The two accused persons had also examined themselves as defence witnesses and merely denied their involvement in the occurrence, and claimed that the confession was made in view of police beating. The accused persons were brought before the court on 3.7.1999 and the learned Magistrate did not find any marks of violence or injury on the person of the accused person. The accused were again produced on 5.7.1999 and at that time there was no injury on the person of the accused. Thus, the statement of the two accused persons regarding the alleged beating by police was not accepted by the trial court. Moreover, we find that when the I/O (PW- 29) was cross examined, the accused persons, however, did not put suggestion to him that he had assaulted the two accused appellants to force them to make a confession. Further, the fact as to how the incident had developed and ultimately led to the killing of the two young boys was within the exclusive knowledge of the accused persons and there is no scope on the part of the police to create such an incident.
26. In the facts and circumstances of the case and the observations made above, we hold that the judicial confession and extra judicial confession (Exts. 7 and 8) are voluntarily made and conviction can be based on such confession coupled with the direct evidence of PWs- 1 and 3. The suggestions as stated above and the judicial confession Under Section 164 Cr.PC stand fully established that the two accused appellants did kidnap and kill Rabindra Taid and Keshab. Hence, the conviction of the accused appellant Under Section 365 IPC and 302 IPC needs no interference. In the present case, the trial court has awarded the sentence of death on the two accused appellants by stating as follows :-
'18. The motive of the convicts was heinous and the crime committed was cruel, cold blooded and diabolicable. Such persons should be eliminated from the society. I, therefore, sentence the convicts to death for the offence Under Section 302 IPC. The convicts, Shri Jitu Pegu and Shri Paramananda Pegu be handed by the neck till they are dead, which I think would meet the ends of justice.
No separate sentence is awarded for the offence Under Section 365 IPC. The time for appeal is explained to the convicts.'
27. In view of the above, we do find sufficient force in the submission made by the learned counsel for the accused appellants that the learned trial Court has imposed the sentence of death mechanically without considering the pros and cons of the matter as required under the law and without giving sufficient reasons for awarding the sentence of death. Taking a queue from the observation of the Apex Court in the case of Anshad and Ors. v. State of Karnataka, reported in (1994) 4 SCC 381, we have no hesitation whatsoever that the learned Session Judge had not dealt with the matter of sentence in the manner required by law as per the provisions of Section 235(2), Cr.PC. We also disapprove the manner in which the sentence of death was imposed showing complete insensitivenes in the matter. We, therefore, propose to examine the matter. In a recent case of Lahna v. State of Haryana, (2002) 3 SCC 76, the Apex Court held that in view of Section 354(3) of the IPC, the normal punishment for murder is imprisonment for life and death penalty is an exception. The Court is required to state the reason for the sentence awarded and in the case of death sentence, 'special reasons' are required to be stated. That is to say, only special facts and circumstances will warrant passing of the death sentence. Thus, we find that the Courts are no longer required to give reasons for not awarding death penalty, but in case, the death sentence is imposed, special reasons are to be stated.
In the case of Bachan Singh v. State of Punjab, (1980) 2 SCC 684, the Apex Court directed application of the following guidelines for cases, where the question of imposition of death sentence arises :
'(i) The extreme penalty of death need not be inflicted except in graved cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.'
In a latter case of Macchi Singh v. State of Punjab (1983) 3 SC 470, the Apex Court added two more test to determine the rarest of rare case:
'(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender.
We have been tempted to quote the following observations of the Apex Court in the case of Lehna (supra) before embarking upon the facts and circumstances of the present case :
'In rarest of rare cases when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances :
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arose intense and extreme indignation of the community.
(2 When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded manner for gains or a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath, or in case of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilised society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man, i.e. the Judge that leads to determination of the lis.'
28. Let us now draw up the aggravating circumstances and the mitigating circumstances appearing against the two accused appellants.
Aggravating circumstances
(1) The accused persons caused the death of two human beings.
(2) The victims were innocent and helpless children.
(3) No act of the victims led the accused to cause the death.
(4) The entire society was aghast when it was discovered that two young lives have been extinguished in a cold blooded manner.
(5) The accused persons believed in the philosophy of terrorism and wanted to adopt terrorism as a profession.
(6) Human life is meaningless when the question of livelihood is taken by engaging in crime.
(7) The motive of terrorism and killing was material gain of money.
29. The learned counsel for the appellants submitted that the accused persons had no intention to cause the death. They had kidnapped the two boys for ransom only but when the matter became known and the entire villagers turned up for search of the missing boys, they got panicky and killed the two boys and dumped their bodies and subsequently they made a clean breast of everything. The above allegations are mitigating circumstances for which the sentence of death may not be imposed on the accused persons.
30. Upon consideration of the entire materials and facts and circumstances of the case, we find that this is not a case of causing death due to any personal vendetta/vengeance or quarrel that took place at the heat of passion. The murder was pre-plan and tow innocent kids were picked up for ransom as if they are sacrificial goats and subsequently they were done to death for no fault of theirs. On balancing the aggravating circumstances and the mitigating circumstances, we find that there is no justifiable mitigating circumstances whereas the aggravating circumstances do lead us to the conclusion that this is a rarest of rare case and the accused persons by their criminal conduct does not deserve any sympathy in the matter of punishment. Accordingly we affirm the sentence of death imposed by the trial court. The appeal as well as the Death Reference stand disposed of accordingly.