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2003 DIGILAW 1052 (PAT)

State Of Bihar v. Durga Mandal

2003-09-25

B.N.P.SINGH, S.N.JHA

body2003
Judgment S.N.Jha, J. 1. All the three appellants have been convicted under Sections 302/ 34 and 201 ot the Indian Penal Code. Appellant Durga Mandal has also been convicted under Section 364 of the Penal Code. For the offence under Section 302/ 34 appellants Gena Mandal and Dina Mandal have been awarded sentence of imprisonment for life while appellant Durga Mandal has been sentenced to death. No separate sentence has been awarded for the offences under Section 201 or 364. 2. The prosecution of the appellants was set in motion by the fardbeyan of Badami Mandal (hereinafter called the informant), father of deceased Pintu Mandal aged about 8 years of Hathania Diara within Pirpaiti Police Station of Bhagalpur district-lodged at Pirpaiti Police Station on 17.1.1991 at about 3 P.M. He stated that on 15.1.91 at about 6 P.M. Pintu went along with Durga Mandal to attend the call of nature but did not return. He enquired from Durga Mandal who told him that he had sent Pintu to village Ekchari with Gena Mandal and Dina Mandal. He (the informant) searched Pintu but did not find him. He expressed apprehension that Durga Mandal had either killed Pintu or concealed him somewhere. The informant further stated that Durga Mandal had come to the village on 11.1.91. Earlier in the preceding month of Bhado he had used his (informant) torch cells in his radio which led to altercation. After four days of the incident, boils appeared on his (Durga Mandal) abdomen. Durga Mandal consulted some Ojha (Village sorcerer) who told him that wife of the informant was a witch and she had practised witch craft upon him. Durga Mandal in the circumstances was hostile to informant and his family. 3. It is relevant to state here that Durga Mandal had been taken to police station by the informant and others including Lahru Mandal, Baldeo Mandal and Bhagwat Mandal. Earlier, they had verified his statement that he had sent Pintu Mandal to village Ekchari with Gena Mandal and Dina Mandal and found the same to be false. Thereafter they kept him in confinement before being taken to the police station. 4. On the basis of the said fardbeyan a case under Section 364 of the Penal Code being Pirpaiti P.S. Case No. 18/91 was registered. S.I. Dhanay Tudu of Pirpaiti Police Station who had recorded the fardbeyan himself took up the investigation. Thereafter they kept him in confinement before being taken to the police station. 4. On the basis of the said fardbeyan a case under Section 364 of the Penal Code being Pirpaiti P.S. Case No. 18/91 was registered. S.I. Dhanay Tudu of Pirpaiti Police Station who had recorded the fardbeyan himself took up the investigation. He recorded the statements of the witnesses present at the police station, apart from the informant. After recording the statements he proceeded to village Hathania alongwith Durga Mandal and inspected the place of occurrence i.e. the place from where Pintu Mandal had gone to answer the call of nature along with Durga Mandal at 5.30 P.M. In the evening, in course of his interrogation, Durga Mandal confessed to have killed Pintu with the help of his cousins Gena Mandal and Dina Mandal and thrown the dead body in the Barbaria river. The police party along with others proceeded to the place where the crime was said to have been committed and made search for the dead body but as the river was covered by water plants and it was late night they postponed the search and returned to the police station in the morning at about 6.30 A.M. making on the way a detour to village Ekchari to apprehend Gena Mandal and Dina Mandal who were not found there. At 9.30 A.M. Durga Mandal made confessional statement. In the said statement he gave a graphic description of the occurrence. I shall advert to his statement later in this judgment. After recording his statement he was formally arrested and forwarded to the Chief Judicial Magistrate, Bhagalpur for remand in the case. At 10.30 A.M. the police party proceeded to the place of occurrence reaching there at 12 noon. They resumed search operation for the dead body with the help of Baldeo Mandal and others. They cleared the river bank of the water plants but did not find the body. The Investigating Officer recorded the statements of Baldeo Mandal and others. On the next day i.e. 19.1.91 the Investigating Officer again went to the place of occurrence i.e. the bank of Barbaria river and started the search on a boat with the help of, amongst others, Mahendra Mandal and found the dead body in the river water. The body was taken out and inquest was held in presence of Sita Ram Mandal and Mahendra Mandal. The body was taken out and inquest was held in presence of Sita Ram Mandal and Mahendra Mandal. The body was thereafter sent to the mortuary where the post mortem was held by Dr. H.I.Ansari. The doctor found (i) 1 cm. wide ligature mark around the neck (ii) bruise 1" x 1/2" at left side of the face near the angle of mandible and (iii) another bruise 1/2" x 1/4" on right upper eyelid. On dissection of neck the sub-cutaneous tissues below ligature mark were found filtrated with blood. Blood clot was found in the muscle of the neck at two places in area 1/2" x 1/2" each. Blood clot was also found around the Cartilage of neck. The byoid (sic) bone was found loose and broken on the left side. 5. At the end of the investigation after completing necessary formalities, S.I.Dhanay Tudu submitted charge sheet against the appellants and they were thus put on trial. At the trial the prosecution examined seven witnesses to prove its case including the said Lahru Mandal as P.W. 1, Baldeo Mandal as P.W. 2, Bhagwat Mandal as P.W. 3 and Mahendra Mandal as P.W. 4. Badami Mandal, the informant, was examined as P.W. 5, Dr. H.I. Ansari who had held the post mortem was examined as P.W. 6 while the Investigating officer, S.I. Dhanay Tudu, was examined as P.W. 7. The appellants also examined two witnesses in their defence. D. W. Ramanand Mandal was examined to prove enmity between the informant and Gena Mandal & Dina Mandal. D.W. 2 Bhabichan Mandal was examined to prove that Pintu accidentally fell into the river and was drowned. At the end of the trial, the Trial Court convicted and sentenced the appellants in the manner indicated at the outset. 6. Shri Bibhuti Prasad Pandey who led the argument, appearing for Durga Mandal, submitted that there is no eyewitness to the occurrence and the case is based on circumstantial evidence. The trial court was swayed by the confessional statement of Durga Mandal but being confession before the police, it was not admissible in evidence and therefore could not be taken into consideration for any purpose whatsoever. The trial court was swayed by the confessional statement of Durga Mandal but being confession before the police, it was not admissible in evidence and therefore could not be taken into consideration for any purpose whatsoever. He submitted that even if part of the statement which led to discovery of the dead body is taken into consideration it would appear that there are only two circumstances against the appellants, namely, that the deceased was last seen with Durga Mandal and that his statement led to discovery of the dead body, but these two circumstances, are not conclusive of the guilt of the appellants. As a matter of fact, according to counsel since the relevant circumstances were not put to the appellant under Section 313 of the Code of Criminal Procedure, they can not be taken into consideration. Counsel referred to broad features of the prosecution case and submitted that there are loopholes and discrepancies in the case which entitled the appellant to benefit of doubt. Counsel also referred to the delay in receipt of the FIR at the police station. On the point of degree of proof in case of circumstantial evidence, counsel placed reliance on Bhalinder Singh alias Raju vs. State of Punjab, (1994)1 SCC 726 ; Kanhai Mishra vs. State of Bihar (2001)3 SCC 451 [: 2001 (3) PLJR (SC) 104] and Bodh Raj @ Bodha vs. State of Jammu & Kashmir, (2003) SCC (Cr.) 201. With respect to particular circumstance reliance was placed on Lallu Manjhi vs. State of Jharkhand (2003)2 SCC 401 .[: 2003 (2) PLJR (SC) 35] 7. On the point of sentence also Shri Pandey submitted, alternatively, that even if the conviction of the appellant is upheld the case is not one of the rarest of rare cases to justify capital punishment. In this regard, he placed reliance on Bachan Singh vs. State of Punjab, AIR 1980 SC 898 , and Krishna Mochi vs. State of Bihar, 2002 SCC (Cr.) 1220.[: 2002(2) PLJR (SC) 305] 8. Shri Abhay Kumar Singh appearing for appellants Gena Mandal and Dina Mandal in Cr. Appeal No. 287/2002 submitted that the appellants have been convicted only on the basis of confession of Durga Mandal which could not be used against co-accused. Shri Abhay Kumar Singh appearing for appellants Gena Mandal and Dina Mandal in Cr. Appeal No. 287/2002 submitted that the appellants have been convicted only on the basis of confession of Durga Mandal which could not be used against co-accused. He submitted that even where the accused makes a disclosure leading to discovery, in the absence of any such statement by the co-accused, the discovery statement cannot be used against them. In support of the proposition counsel placed reliance on a decision of this Court in the case of Mahendra Mandal vs. State of Bihar, 1991 Cr.LJ. 1930.[: 1991(1) PLJR 7 ] Counsel submitted that even on the point of last seen, none of the prosecution witnesses named Gena Mandal or Dina Mandal in their evidence as person (s) in whose company the deceased was last seen, or at any time seen, and thus there is no evidence against these appellants except the so called confession/disclosure statement of Durga Mandal which by itself cannot be the basis of their conviction. 9. The cases of Gena Mandal and Dina Mandal stand in a narrow jacket and therefore, I would like to consider their appeal first. On perusal of the evidence it does appear that these appellants stand on a different footing from Durga Mandal. I shall refer to the evidence so far as relevant against Durga Mandal later. So far as Gena Mandal and Dina Mandal are concerned, the only material on record is the confessional statement of Durga Mandal, marked Ext.5, as per which they helped Durga Mandal in killing Pintu Mandal and throwing his dead body in the river. Except that there is nothing on the record against these appellants. None of the prosecution witnesses claimed to have seen them at or near the place of occurrence or last seen the deceased in their company. So far as Ext. 5 is concerned, no doubt, it led to the discovery of the dead body, but that would bind the maker of the statement alone i.e. Durga Mandal, and not any co-accused. The legal position is well established and reliance on Mahendra Mandal vs. State of Bihar (supra) appears to be appropriate. So far as Ext. 5 is concerned, no doubt, it led to the discovery of the dead body, but that would bind the maker of the statement alone i.e. Durga Mandal, and not any co-accused. The legal position is well established and reliance on Mahendra Mandal vs. State of Bihar (supra) appears to be appropriate. The relevant observations therein, in paragraph 17 of the judgment, may be quoted as under: "It is true that any statement of the accused regarding the discovery will not be admissible but the statement leading to the recovery of the dead bodies will not be hit by the mischief of Section 27. However, where the accused had made the discovery statement but those statement was not made by any other accused, the discovery statement cannot be used against the non-maker co-accused and can only be used against the maker i.e. the accused and he can only be fastened with the knowledge of concealment of the dead bodies." If the evidence on the point of last seen and discovery of the dead body pursuant to disclosure statement of Durga Mandal cannot be used against these appellants, there is hardly anything in the case to justify their conviction. I am accordingly of the view that prosecution has failed to prove its case against appellants Gena Mandal and Dina Mandal and they are entitled to acquittal. 10. XXX XXX XXX 11. I will now take up the case of Durga Mandal. Notwithstanding counsels objection to the admissibility of the confessional statement, Ext. 5, even he did not take the position that part of the statement which led to the discovery of a fact, namely, recovery of the dead body cannot be taken into account against the appellant. Counsel also agreed that there is evidence on record suggesting that the deceased was last seen with Durga Mandal. The contention of the counsel is that these two circumstances by themselves are not enough to complete the chain leading, necessarily, to the inference of guilt. According to the counsel the circumstances should be such as to lead only to the guilt of the accused and inconsistent with presumption of his innocence. 12. As indicated above, there is little dispute that recovery of the dead body of Pintu was the result of confessional statement of Durga Mandal. According to the counsel the circumstances should be such as to lead only to the guilt of the accused and inconsistent with presumption of his innocence. 12. As indicated above, there is little dispute that recovery of the dead body of Pintu was the result of confessional statement of Durga Mandal. Section 27 of the Evidence Act which is in the nature of exception to the general rule that no confession before Police Officer shall be admissible in evidence against the maker, provides that if any fact is deposed to or discovered in consequence of information received from a person accused of any offence in the custody of a Police Officer "so much of such information....... as relates distinctly to the fact thereby discovered" may be proved against the person concerned. That is, the same would be admissible in the evidence. The endeavour of the counsel for the State was that apart from the statements constituting information leading to discovery of the dead body, the confessional statement contained other pieces of information which also may be taken into consideration. I shall deal with this argument a little later in this judgment. At this stage it may be recalled that apart from the fact that Ext. 5 led to discovery of the dead body, another circumstance which stands proved, about which too there is little dispute is that the deceased was last seen with Durga Mandal. 13. In my opinion, apart from these two circumstances, there are other circumstances which stand proved by the evidence on record. Both P.W. 1 Lahru Mandal and P.W. 4 Mahendra Mandal stated that when they accosted Durga Mandal about the whereabouts of Pintu, he stated that he had gone to Ekchari with Gena Mandal and Dina Mandal, which turned out to be false. The witnesses went to Ekchari, a nearby village few Kms. away, but did not find the deceased there. The fact that the appellant gave a false explanation about the whereabouts of Pintu Mandal, in conjunction with the fact that he had been seen along with him, is a circumstance which stares at the face of the appellant. He apparently tried to mislead the family members of the deceased suggesting existence of a guilt mind. 14. The fact that the appellant gave a false explanation about the whereabouts of Pintu Mandal, in conjunction with the fact that he had been seen along with him, is a circumstance which stares at the face of the appellant. He apparently tried to mislead the family members of the deceased suggesting existence of a guilt mind. 14. Another circumstance which stands proved against Durga Mandal is that the unnatural death of the deceased was sought to be explained as a case of drowning due to accidental fall in the river vide D.W. 2 Bhabichhan Mandal. As seen above, the body of Pintu Mandal bore marks of injury suggesting that he had been subjected to violence which completely falsifies the defence. If is true that the accused is not supposed to disclose his defence in a criminal case, but where he does so and the defence is found to be false, the fact can be used as circumstance against him. 15. Yet another fact which the prosecution has succeeded in proving is motive. There is evidence that some time ago Durga Mandal was found using torch cells of the informant in his radio which led to quarrel with the informant and his father-in-law Ghanshyam Mandal (the absconding accused) when Durga Mandal had given threat to him. As a matter of fact, there is reference to the altercation on account of use of torch cells by Durga Mandal in his confessionaf statement too. The use of cells belonging to the informant by the appellant in his radio was indeed a trivial matter but experience shows that most of the crimes have their origin in trivial things. As a matter of fact, even as per the confessional statement of Durga Mandal, a few days after the said occurrence some boils appeared on his abdomen and he believed that they were result of black magic practised by the informants wife. Under the belief that the informants wife i.e. mother of the deceased was responsible for his physical suffering, he decided to teach her lesson by killing her son and that is how he committed the crime. 16. Coming to the all important question about admissibility of the confessional statement, Ext. 5, as already mentioned above, there is little dispute about admissibility of part of the statement constituting Information leading to discovery of the dead body of Pintu Mandal. 16. Coming to the all important question about admissibility of the confessional statement, Ext. 5, as already mentioned above, there is little dispute about admissibility of part of the statement constituting Information leading to discovery of the dead body of Pintu Mandal. The point for consideration is whether, as submitted by the State counsel, other parts of the statement, if any, can also be looked into. In support of the contention learned counsel for the State placed heavy reliance on a decision of the Constitution Bench of the Apex Court in Nishi Kant Jha vs. State of Bihar, AIR 1969 SC 422 . The appellant in that case after being apprehended by the villagers and brought to the local Mukhiya made statement giving details of occurrence. The murder was committed in that case in running train. According to the appellant he was travelling in a First class compartment of Barauni Passenger train, one unknown person was also in the compartment. When the train stopped at Simultalla station one Lal Mohan Sharma entered into the compartment. He knew him from before. After the train moved ahead of Jasidih station, Lal Mohan Sharma took the said unknown into lavatory and began to beat him. The appellant tried to save; in the process he received knife injury on his forefinger. Thereafter out of fear he kept quiet. Before the train reached Madhupur station Lal Mohan Sharma killed said stranger, jumped down from the running train and fled away. The appellant also jumped down on the other side and fled away. The investigation revealed that it was the appellant who had committed the crime. The trial court as well as the High Court accepted the prosecution case and convicted the appellant under Section 302 of the Penal Code holding that there were several incriminating circumstances leading to the guilt of the appellant. The Supreme Court observed that however grave the circumstances against the appellant as summarised by the High Court may be, they were not enough to fasten the guilt on the accused unless a portion of his statement, Ext. 6, which contained an admission that he was travelling by the Barauni passenger in a compartment where he saw a murder committed and that he had jumped out of the train near the river Patro before getting to Madhupur, is pieced together with them. 6, which contained an admission that he was travelling by the Barauni passenger in a compartment where he saw a murder committed and that he had jumped out of the train near the river Patro before getting to Madhupur, is pieced together with them. A submission was made on behalf of the appellant that the statement, Ext.6, is to be accepted as a whole or not at all. Rejecting the submission the Supreme Court held that it is open to the Court to accept inculpatory part of the statement if the exculpatory part is found to be improbable and, accordingly, piecing inculpatory part of Ext. 6 with the circumstances which stood proved as per the finding of the High Court, upheld the conviction of the appellant. The Supreme Court referred to various treatises on the subject, besides the case law, and I may usefully refer to a passage from Taylors Law of Evidence, quoted with approval, as under :- In the proof of confessions - as in the case of admissions in civil causes - the whole of what the prisoner said on the subject at the time of making the confession should be taken together.......But if after the entire statement of the prisoner has been given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another. Even without such contradiction it is not to be supposed that all the parts of a confession are entitled to equal credit. The jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient grounds for so doing. Even without such contradiction it is not to be supposed that all the parts of a confession are entitled to equal credit. The jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient grounds for so doing. If what he said in his own favour is not contradicted by evidence offered by the prosecutor, nor is improbable in itself, it will be naturally believed by the jury; but they are not bound to give weight to it on that account, being at liberty to judge of it, like other evidence, by all the circumstances of the case." The Supreme Court held that the appellants version about Lal Mohan Sharma committing the crime being unacceptable, if the circumstance about his presence as stated by the appellant himself in his statement - is added to the list of incriminating circumstances and taken into consideration, they would conclusively lead to the appellant committing the murder. 17 I am conscious of the fact that the statement in the case of Nishi Kant Jha was not a confessional statement before a Police Officer, as in the instant case, and the question was whether it was permissible to accept a part of it and reject the other part. It would nevertheless appear that the decision laid down the principle that it is permissible to dissect the statement of an accused and use portion of it rejecting the other portion - either disbelieving the same or as being inadmissible under Section 27 of the Evidence Act - or otherwise. What Section 25 bars is confession of ones guilt to a Police Officer, It does not mean that whole of the confession including the portions which do not amount to confession, should be ignored as being inadmissible. 18. In his confessional statement before S.I.Dhanay Tudu on 19.1.91 at 9.30 A.M. Durga Mandal stated as follows. He was a resident of Panuchak, P.S. Kahalgoan (Ghogha) district Bhagalpur and his sasural was at village Athania, P.S. Pirpaiti in the house of Ghanshyam Mandal. He was married to Ghanshyam Mandals daughter about one and half years ago. He kept coming to sasural. In the preceding month of Bhado when he came to sasural, his wifes brother gave him torch cells belonging to Badami Mandal. He used the cells in his radio which led to altercation with his in-laws. He was married to Ghanshyam Mandals daughter about one and half years ago. He kept coming to sasural. In the preceding month of Bhado when he came to sasural, his wifes brother gave him torch cells belonging to Badami Mandal. He used the cells in his radio which led to altercation with his in-laws. After few days boils appeared on his abdomen. He got treated by village doctor but he was not cured. He also consulted a village sorcerer who told him that boils were due to black magic practised by his aunt-in-law. He told his cousins Gena Mandal and Dina Mandal of village Ekchari about this. They discussed the matter and decided to kill her son. 3 to 4 days prior to the occurrence on 11.1.91 he again came to his sasural. His cousins knew about the visit. As per the plan he was to entice the boy to the Bahiar side on Tuesday. In the evening on the appointed day and time, at about 6 P.M., on the pretext of answering the call of nature he proceeded to the appointed place along with Pintu Mandal. Before leaving he switched on his radio so that people may remain present there listening to the music. When he reached the place he found Gena Mandal and Dina Mandal waiting from before. They felled Pintu on the ground. Gena Mandal caught hold of his legs while Dina Mandal held the hands. Durga Mandal pressed his neck till he died. After he died his neck was tied by the cord of his pant. He wrapped the body in the deceaseds chadar and put some soil into it Gena Mandal then went into the river, down up to shoulder depth, and threw the body. The place where the body was thrown was in front of two Babool trees. Thereafter Gena Mandal and Dina Mandal left for village Ekchari while Durga Mandal quietly returned to his sasural. However, some of the villagers had seen him going along with Pintu. They told his father Badami Mandal about it. The villagers apprehended him on suspicion and started interrogating him. They also assaulted him. Out of fear, however, he did not make any disclosure in the village. 19. The confessional statement to the extent it refers to the Durga Mandal committing the crime is not admissible as being hit by Section 25 of the Evidence Act. The villagers apprehended him on suspicion and started interrogating him. They also assaulted him. Out of fear, however, he did not make any disclosure in the village. 19. The confessional statement to the extent it refers to the Durga Mandal committing the crime is not admissible as being hit by Section 25 of the Evidence Act. But are other portions such as those relating to altercation which had taken place on account of use of the torch cells belonging to the informant by him, his belief that boils were result of black magic performed by the deceaseds mother, or even his going to the Bahiyar side to answer the call of nature, also inadmissible? 20. It would appear that Durga Mandal made several admissions in his confessional statement. He admitted that during his last visit in the month of Bhado some altercation had taken place with his inlaws on account of use of torch cells belonging to the informant; that after two days of the incident boils appeared on his abdomen and that he consulted some village sorcerer who told him that it was on account of black magic practised by his aunt-in-law i.e. wife of the informant and mother of the deceased. They form parts of the prosecution case too. I do not think there can be any doubt about admissibility of those part of the statement. What may be inadmissible is the statement that he entered into conspiracy with his cousins Gena Mandal and Dina Mandal to kill the deceased, and in pursuance thereof at the time and place of occurrence killed him in the manner described in the statement, and threw the dead body in the river. These statements constitute admission of guilt amounting to confession and therefore are not admissible in evidence being confession of an accused before the pclice. Question arises as to whether the other part of his statement to the effect that he took the deceased to the appointed place on the date and time of the occurrence on the pretext of answering the call of nature where Gena Mandal and Dina Mandal were sitting from before, is admissible or not. If this part of the statement is held to be admissible it would establish the presence of Durga Mandal at the place of occurrence. If this part of the statement is held to be admissible it would establish the presence of Durga Mandal at the place of occurrence. In that case, while the statement would not be binding on Gena Mandal and Dina Mandal as already held above, it would be binding on Durga Mandal as an admission. It is to be kept in mind, in this connection, that there is positive evidence about Durga Mandal moving along with deceased Pintu Mandal for answering the call of nature in the evening of 15.1.91. 21. The term confession has not been defined in the Evidence Act. By judicial pronouncements the term has come to mean "an express acknowledgment of guilt of the offence or, substantially, all the facts which constitute the offence". If the particular statement does not amount to express acknowledgment of the guilt or admission of facts constituting offencedirectly or even inferentially - it cannot be said to be a confession. What is barred under Section 25 is confession and not admission of facts not amounting to confession. The statement of Durga Mandal that he along with the deceased went to a place where Gena Mandal and Dina Mandal were waiting does not amount to admission of fact constituting the Offence and therefore is not hit by Section 25 of the Evidence Act. In fact, his statement that he along with the deceased went together to answer call of nature finds enough corroboration from the evidence of the witnesses. As it is permissible to dissect the statement of an accused to separate the grain from the chaff, that is to say admissible part from the inadmissible part, I see no difficulty in placing reliance on that part of the confessional statement of Durga Mandal. In any view the company of the accused with the deceased lends corroboration to his presence at about the time and place of occurrence where the deceased was taken away on a false pretext by the accused and his dead body was found on the pointing out by the accused. It may be legitimate to infer that the accused was- present at the time and place where the deceased was done to death. 22. It may be legitimate to infer that the accused was- present at the time and place where the deceased was done to death. 22. It is true that in a case based on circumstantial evidence, the incriminating circumstances against the accused must be such as to lead only to the hypothesis of guilt and reasonably exclude every possibility of his innocence, and that the circumstances should form themselves into a complete chain pointing to the guilt of the accused. Where particular circumstance is found absent so as to create gap in the chain, the accused may be entitled to benefit of doubt. But how long should be the chain would depend on the facts of the case. In a particular case, the hypothesis of guilt may be reached on the basis of only a few circumstances; in other case, proof of a number of circumstances may not be sufficient, if any circumstance intervening between the two is found missing rendering the chain incomplete. 23. It may be recalled that Durga Mandal after describing the manner of occurrence and its background, disclosed the exact place where the dead body of Pintu Mandal had been thrown in the river water, where it was finally recovered. It took some time to find out the body on account of the fact that the river was submerged by water plants at the particular place which had to be cleared. In the third attempt the police had to hire a boat and only then that the body could be retrieved. The marks of injuries found on the body tallied with the manner of occurrence described by Durga Mandal. If parts of the confessional statement excluding the culpatory part are taken into account and juxtaposed with the facts and circumstances proved by positive evidence - that the appellant and the deceased were last seen together, that there was motive for committing the crime, that there was attempt to mislead the deceaseds family about his where abouts and that the defence taken by him about accidental drowning of Pintu Mandal was not consistent with the medical evidence, the conclusion would lead to the hypothesis of guilt of Durga Mandal. The circumstances mentioned above are incompatible with and reasonably exclude the possibility of his being innocent. In the circumstances the conviction of the appellant Durga Mandal does not warrant any interference by this Court. 24. The circumstances mentioned above are incompatible with and reasonably exclude the possibility of his being innocent. In the circumstances the conviction of the appellant Durga Mandal does not warrant any interference by this Court. 24. However, I find substance in the plea that facts and circumstances do not warrant sentencing him to death. It is true that the appellant killed an innocent child of 8 years and that too when he was serving life sentence in another case; however, it does not appear to be one of the rarest of the rare cases which would justify capital punishment. In Machhi Singh vs. State of Punjab. (1983) 3 SCC 470 Supreme Court held that extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence should be imposed only when life imprisonment is considered to be altogether inadequate punishment having regard to the relevant circumstances of the crime. The appellant in the instant case was in his youth at the time of occurrence. He appears to have been swayed by sentiments. Though every murder, specially murder of a child is shocking, it cannot be termed as shocking to collective conscience of the community. The case does not seem to satisfy the tests laid down in Machhi Singhs case reiterated recently in the case of Krishna Mochi vs. State of Bihar, 2002 SCC (Cri) 1220[: 2002(2) PLJR (SC) 305]. In the facts and circumstances I am of the view that ends of justice would be satisfied by awarding imprisonment for life instead of death sentence. He is sentenced to imprisonment for life accordingly. 25. In the result, cr. Appeal No. 287/ 2002 is allowed. Appellants Gena Mandal and Dina Mandal are acquitted of the charges. They are ordered to be released forthwith if not wanted in any other case. Cr. Appeal No. 312/2002 is dismissed with the modification in the sentence, as above. The reference is answered accordingly. B.N.P.Singh, J. 26 I agree.