BASU, J. ( 1 ) THE above named four persons being charged under Sections 302/120b, 302/34 and 201/34 of the I. P. C. were convicted under all the charges by the learned Sessions Judge, 3rd Bench, City Court, Calcutta in connection with Sessions Trial No. 1 Nov. /94 corresponding to Sessions Case No. 38 of 1994. ( 2 ) THE learned Sessions Judge, by his order dated 29th August, 2003 convicting all the four persons named above imposed death punishment against Aloke Nath Dutta, Mrinal Dutta and Shib Sankar Roy under Section 302/34 of the I. P. C. and Mamata Dutta was sentenced to suffer imprisonment for life under Section 302/34 of the I. P. C. and to pay fine of Rs. 5,0007- in default, imprisonment for two years more. ( 3 ) ALL the four accused persons were also sentenced to suffer riguours imprisonment for five years each for the offence punishable under Section 201/34 of the I. P. C. and to pay a fine of Rs. 3,000/- each in default, to suffer imprisonment for one year more. No separate punishment was, however, awarded under Section 302/120b, I. P. C. as all the persons were sentenced under Section 302/34 of the I. P. C. ( 4 ) AS three of the accused persons namely Aloke Nath Dutta, Mrinal dutta and Shib Sankar Roy @ Gobinda @ Babu Roy were imposed death sentence, the learned Judge made a reference under the provisions of the cr. P. C. for confirmation and such reference has since been registered as death Reference No. 2 of 2003. ( 5 ) ALOKE Nath Dutta, Mrinal Dutta and Shib Sankar Roy @ Gobinda @ Babu thereafter preferred Criminal Appeal No. 396 of 2003, subsequently mrinal Dutta filed a separate appeal being Criminal Appeal No. 467 of 2003 and Mamata Dutta preferred Criminal Appeal No. 489 of 2003. ( 6 ) FROM record it transpires that Mr. Rash Behari Mahato was appointed by this Court to represent appellant Aloke Nath Dutta, Mrinal Dutta and Shib Sankar Roy and subsequently Mr. Joymallya Bagchi appeared for appellant Mrinal Dutta. As at the time of hearing of Criminal Appeal No. 489 of 2003 no Advocate appeared for Mamata Dutta, we requested Mr. Mahato to represent Mamata Dutta before us in connection with the said appeal. Thus. Mr. Joymallya Bagchi appeared for appellant Mrinal Dutta. As at the time of hearing of Criminal Appeal No. 489 of 2003 no Advocate appeared for Mamata Dutta, we requested Mr. Mahato to represent Mamata Dutta before us in connection with the said appeal. Thus. Mr. Rash Behari Mahato represented Aloke Nath Dutta, Mamata Dutta and Shib Sankar Roy @ Gobinda @ Babu. and Mr. Joymallya Bagchi represented appellant Mrinal Dutta. We have heard all the learned Advocates and also Mr. Kaji Safiullah representing the State respondent in connection with the death reference and also with the three criminal appeals mentioned hereinabove and we propose to dispose of the death reference as well as all the three appeals by this judgment. ( 7 ) THE prosecution case giving rise to the present death reference and also the connected criminal appeals may be unfolded in this way as available from FIR lodged by P. W. 3 and from other connected materials on record. ( 8 ) A three storied building located at 2c, Beadon Street, Calcutta within the jurisdiction of Burtolla PS. belonged to one Jagannath Dutta. Jagannath Dutta died leaving behind him his wife and four sons namely, Amar dutta, Samar Dutta, Biswanath Dutta and Aloke Nath Dutta and the daughter anuradha who was married. Among the four brothers Amar Dutta resided at chandannagore and Samar Dutta resided at Barasat and Biswanath Dutta and Aloke Nath Dutta recided at 2c, Beadon Street, Calcutta. Anuradha Das resided in her matrimonial home at Jadavpore. The Building at 2c, Beadon street was a three storied building having tenants at the ground floor and second floor. Biswanath Dutta since deceased used to stay at second floor with some tenants occupying some portion of that floor and Aloke Nath Dutta resided in first floor with his family consisting of wife Mamata Dutta and two children. ( 9 ) SINCE the death of Aloke Nath's mother in the month of April, 1993 Aloke Nath who was an employee of Calcutta Police and who was man of easy virtue was eager to dispose of the premises at 2c, Beadon Street secretly without consulting his three brothers Amar, Samar and Biswanath and also the sister Anuradha. With this purpose in mind, Aloke Nath entered into an agreement with P. W. Nandalal Singh for sale of the entire premises of 2c, Beadon Street along with existing tenants and received advance. With this purpose in mind, Aloke Nath entered into an agreement with P. W. Nandalal Singh for sale of the entire premises of 2c, Beadon Street along with existing tenants and received advance. Aloke nath while executing several agreements with said Nandalal Singh took active help and participation of Mrinal Dutta, Shib Sankar Roy @ Gobinda @ Babu and his wife Mamata. Mrinal Dutta in all agreements with the intending buyer impersonated Biswanath Dutta and signed all agreements and other documents in connection thereof for Biswanath Dutta. It is significant to mention that aloke Nath also entered into another agreement with witness Arumoy Bose for disposal of premises of 2c, Beadon Street and for this purpose also he executed an agreement and took advance of Rs. 65,000/- and there also mrinal Dutta impersonated Biswanath and signed as Biswanath on the connected documents. ( 10 ) SINCE Aloke Nath took huge amount of money as advance from nandaial Singh and as Nandalal was insisting for early registration, Aloke nath promised to handover second floor of the premises where his brother biswanath used to reside till 22nd January, 1994. As Biswanath stood as a stumbling block for Aloke Nath to execute his clandestine desire regarding the disposal of the premises, Aloke Nath with the help of Mrinal, Babu and his wife Mamata committed murder of Biswanath on the midnight of 22nd January and by preparing a make shift cavity inside a room under occupation of aloke Nath, the dead body of Biswanath was kept inside the cavity and that cavity was filled up with breaks and mortars which took a shape of 'bedi'. ( 11 ) AS promised earlier, on 23rd January on receipt of further advance, alone Nath delivered possession of second floor under occupation of Biswanath dutta since murdered to Nandalal and at that point of time the 'bedi', newly constructed, was noticed by Nandalal and Aloke Nath assured dismantling of the same before registration of the property. ( 12 ) AS Aloke Nath insisted for further money form Nandalal, Nandalal took advice of his Advocate P. W. Bikash Pal and according to the advice of bikash Pal, an advertisement was published in the daily Ananda Bazar Patrika on 31st January, 1994 inviting objection against the proposed registration of the property. ( 12 ) AS Aloke Nath insisted for further money form Nandalal, Nandalal took advice of his Advocate P. W. Bikash Pal and according to the advice of bikash Pal, an advertisement was published in the daily Ananda Bazar Patrika on 31st January, 1994 inviting objection against the proposed registration of the property. Having regard to the said advertisement, Aloke Math's two elder brothers Amar and Samar and also the sister Anuradha made contact with advocate Bikash Pal and in consultation with Aloke Nath in presence of mrinal Dutta and Babu Roy at the chamber of Advocate Bikash Pal, Aloke nath decided to invite his two brothers for an amicable settlement at the premises No. 2c, Beadon Street on 6th March, 1994. ( 13 ) ON 6th March, 1994 Amar, Samar and one nephew of Aloke Nath coming to the house noticed Nandalal Singh in occupation of both 2nd floor and the first floor of the house and on enquiry from Aloke Nath in presence of Nandalal and other tenants of the house, Aloke Nath disclosed that biswanath has already vacated the second floor with effect from 23rd January, 1994 and he himself vacated the premisses on 14th February, 1994 and sh'fted to a rented house at Baguihati. At the insistence of Amar and Samar aloke Nath gave address of Biswanath somewhere at Barasat and as both the brothers and the nephew were dissatisfied with the answer of Aloke Nath about Biswanath, they at once left for Barasat to meet Biswanath. ( 14 ) AMAR and Samar could not trace out Biswanath at the given address at Barasat and after a few hours they come back to premises No. 2c, Beadon Street and insisted Aloke Nath to disclose the whereabouts of biswanath. At the time of continuous interrogation Aloke Nath ultimately broke down and divulged that* along with others he killed Biswanath and kept his body concealed within a 'bedi' inside a room of first floor which was under his occupation and this disclosure was made in presence of witness Nandalal and other tenants of the house who were also examined by the prosecution during trial. ( 15 ) ON getting the information of murder of Biswanath in the hand of aloke Nath and getting the information about the manner of disposal of the body of Biswanath, Burtolla police was informed in the afternoon on 6th march, 1994 over telephone and thereafter S. I. Subhendu Barik P. W. 47 arrived at the P. O. and took Aloke Nath into custody and came back to police station for further action in consultation with superior officer. On the same evening Subhendu Barik being assisted by S. I. Ashoke Banerjee of Burtolla police Station, came back to the place of occurrence along with Aloke Nath under arrest and thereafter following the indication of Aloke Nath the 'bedi' found inside a room of first floor was dismantled and a human skeleton was recovered in presence of witnesses. Police officer requisitioned the service of departmental photographer and also the service of the forensic department for inspection of the premises in question. The skeleton was subsequently forwarded for post mortem examination and thereafter for further scientific tests for establishing identity of the skeleton. Following the statement of Aloke nath his wife Mamata and his brother-in-law Babu and Mrinal were arrested and all of them were taken under custody and subsequently they were all remanded to police custody under order of the appropriate Court. ( 16 ) FROM 8th March, 1994 S. I. Atanu Banerjee P. W. 48 took charge of investigation of the case and the said officer in course of investigation seized different articles belonging to Biswanath as sold by Aloke Nath after his murder, examined different witnesses relating to execution of different agreements by Aloke Nath along with Mrinal, Babu and his wife Mamata, examined witnesses who supplied brick, cement, sand etc. to Aloke Nath for erection of 'bedi', collected post mortem report and final report from the forensic Science Laboratory regarding the identification of the dead body as that on Biswanath, examined other witnesses who found Biswanath in the nicht of 22nd January, 1994 at the place of occurrence, arranged for recording of confessional statement of Mrinal S. I. Atanu Banerjee after recording the statement of all the witnesses and collecting all other materials including post mortem report, report of the Forensic Science Laboratory, report of the hand writing expert, different seizure lists and different agreements executed by aloke Nath with Nandalal and Arumoy Bose, ultimately filed the charge sheet against Aloke Nath Dutta, Mrinal Dutta, Babu Roy and Mamata Dutta for hatching a conspiracy for disposal of the property and to remove Biswanath dutta who was considered as a stumbling block for such disposal of the property and ultimately for killing of Biswanath on the night of 22nd January, 1994 and for screening of evidence regarding the said murder of Biswanath. ( 17 ) IT appears from record that prosecution during trial examined in all 48 witnesses and several documents in the form of agreements, post mortem report, seizure lists, hand writing expect's report, CFSL report and confessional statement of Mrinal Dutta were also produced. The prosecution also produced several photographs of the place of occurrence showing the existence of 'bedi', its dismantling and recovery of the skeleton from inside the said 'bedi'. ( 18 ) THE learned Judge proceeded with the trial of all the four accused persons after framing three separate and distinct charges against all of them and those were under Sections 302/120b, 302/34 and 201/34 of the I. P. C. ( 19 ) THE learned Judge after scanning the entire evidence produced by prosecution both oral and documentary and having regard to the separate and distinct plea taken by all the four accused persons as disclosed through their cross-examination of the prosecution witnesses and through oral submissions of their learned Advocates during argument and after considering the submissions of the prosecution Advocate was pleased to record as many as 16 circumstances to establish the guilt of all the four accused persons under all the charges framed against them beyond any shadow of doubt. ( 20 ) THE learned Judge on examination of evidence was satisfied that from the month of November, 23 Aloke Nath in conspiracy with Mrinal, Babu and his wife Mamata decided to dispose of the property in question to a third party in lieu of money and as Biswanath was not agreeable to such a deal, they hatched a plan to proceed with their design to dispose of the property in absence of Biswanath and by impersonating him through Mrinal. The learned judge was of the view that from November, 1993 onwards, it was clear intention of all the four accused persons as designed by Aloke Nath to remove biswanath from this world as he would be the only hindrance for Aloke Nath lor disposal of the property and to earn and share money with other accused persons. The learned Judge to arrive at this conclusion relied on the evidence of P. W. 7, P. W. 8, P. W. 10, P. W. 14, P. W. 15 and P. W. 16 and the learned Judge also took into consideration the different documents which Aloke Nath executed with P. W. 15 Nandalal and P. W. 8 Arumoy Bose and where Mrinal, Babu and manata put their signatures and where on all occasions Mrinal posed himself as Biswanath before the intending purchaser and also before Advocate Bikash pal RW. 14. ( 21 ) THE learned Judge having regard to the evidence of P. W. 15 together with P. W. 10 and P. W. 16, was of the view that as there was no option for Aloke Nath but to hand over part possession of the premises in question, all the accused persons together decided to kill Biswanath and to hand over his portion of the premises to Nandalal so as to receive more money from nandalal and to share that money amongst themselves. The learned Judge on scanning of evidence of P. W. 15 mainly along with P. W. 10 and P. W. 16 found that as 23rd January, 1994 was fixed for delivery of possession of the second floor of the house where Biswanath used to reside, all the accused persons conspired to kill Biswanath on the night of 22nd January, 1994 and they also made a plain before anyhow to dispose of the dead body of Biswanath and with this idea they constructed a 'bedi' before hand with a cavity inside to be filled up latter inside a room under occupation of Aloke Nath and this existence of 'bedi' on 23rd January, 1994 was specifically noticed by RW. 15. ( 22 ) THE learned Judge from the evidence of the police personnel who were colleagues of Aloke Nath and also the evidence of surgeon Binoy ghosh Dastidar, found ample evidence to hold that since the afternoon of 22nd January, 1994 Aloke Nath was absent from his office without any reason and explanation and he reported for duty long thereafter. The learned Judge considered the evidence of RW. Swapan Dutta to hold conclusively that on the night of 22nd January, 1994 Biswanath was seen for the last time at the premises in question and there this witness Swapan Dutta heard from discussion of Aloke Nath Dutta and Biswanath Dutta that Biswanath Dutta would sleep for that night on the veranda just in front of the room of Aloke nath at the first floor on the pretext that the room of Biswanath Dutta at the second floor was closed for repairing. The learned Judge also found from the evidence of different witnesses of the locality that Aloke Nath Dutta along with babu purchased bricks, sand and cement prior to 22nd January, 1994. The learned Judge found from evidence along with different seizure lists that after 22nd January, 1994 Aloke Nath removed all the articles of Biswanath and kept some of them inside his rented room at Baguihati and sold some of them which were subsequently proved from seizure lists prepared by the I. O. in course of investigation and duly proved by witnesses. ( 23 ) THE learned Judge also took due notice of the extra judicial confession of Aloke Nath made soon after the occurrence in presence of P. W. Nandalal and the tenants of the premises who were also examined and in presence of his two brothers Amar Dutta and Samar Dutta and nephew. ( 24 ) THE learned Judge also found from evidence that Mamata misled different persons about the whereabouts of Biswanath soon after 22nd January, 1994 and Mamata was very much involved both in hatching the conspiracy regarding the execution of different agreements and regarding impersonation of Biswanath by Mrinal Dutta. The learned Judge noticed that Mrinal was also present at the chamber of Advocate Bikash Pal and Mamata was also present when Aloke Nath received advance from Nandalal on different occasions in presence of Mrinal and Babu. ( 25 ) THE learned Judge also considered the evidence of the masons who were brought at the P. O. on 6th March, 1994 to dismantle the 'bedi' and who deposed about recovery of the skeleton from the 'bedi'. The learned judge also took into consideration the evidence of Amar, Samar, Nandalal and tenants of the premises regarding recovery of the skeleton from the 'bedi' located inside the room under occupation of Aloke Nath. ( 26 ) THE learned Judge found from evidence that it was scientifically established beyond all shadow of doubt that the skeleton was that of Biswanath and the learned Judge also found from evidence of the officer of UBI where biswanath was an employee and also from a colleague of Biswanath that biswanath was found for the last time on 22nd January, 1994 and since then there was no trace of Biswanath on this living world. ( 27 ) THE learned Judge found from the post mortem report of Dr. Nandy that the murder probably took place 40 or 45 days from the date of conducting post mortem examination and that date matched with the alleged date of occurrence and it was the further opinion of the doctor that death occurred due to throttling. ( 27 ) THE learned Judge found from the post mortem report of Dr. Nandy that the murder probably took place 40 or 45 days from the date of conducting post mortem examination and that date matched with the alleged date of occurrence and it was the further opinion of the doctor that death occurred due to throttling. ( 28 ) THE learned Judge after taking all objections raised by Mrinal dutta about the genuineness of his confessional statement and its true voluntariness, was of the opinion that Mrinal Dutta out of his own will and desire and without any pressure, threat, allurement or promise of reward gave the statement before the learned Magistrate who was examined by prosecution as P. W. 43 and the learned Trial Judge was of the opinion that the retraction from his earlier confessional statement was a poor attempt to exonerated himself from the charge of conspiracy, murder and from screening of evidence and, therefore, the learned Judge placed full reliance on the confessional statement of Mrinal Dutta and the learned Judge was of further view that the confessional statement of Mrinal Dutta completely tallied with the circumstantial evidence placed by prosecution to implicate all the four accused persons for the charge of conspiracy, murder and screening of evidence. ( 29 ) THE learned Judge was also aware of the alibi taken by all the four accused persons regarding their absence at the place of occurrence on the night of 22nd January, 1994 and the learned Judge after taking into consideration all the relevant evidence, was of the view that the accused persons not only miserably failed to prove their alibi, but, the chain of circumstances established by prosecution clearly and unhesitatingly proved the presence of the accused persons at the place of occurrence on the night of 22nd January, 1994 and their active participation in the killing of Biswanath and removal of his dead body within the cavity which was turned into a 'bedi' afterwards. ( 30 ) THE learned Judge thus, after scanning the entire prosecution evidence both oral and documentary, was of the view that 16 circumstances starting from hatching of conspiracy in the month of November, 1993 over disposal of the property till killing of Biswanath on 22nd January, 1994 and removal of his dead body was totally proved by the prosecution in a full chain of circumstances without a single snap in the entire chain and the learned judge further concluded that the conduct of Aloke Nath and his wife soon after the occurrence and their shifting to a rented house and their calm and cool temperament after commission of murder of own full brother fully established that conspirators in a pre-planned manner committed the murder of Biswanath and adopted most heinous method to remove the corps and their further conduct soon after the occurrence till detection of the crime has indeed no parallel within normal human behaviour and with this conviction in mind, the learned Judge, after holding all the four accused persons guilty under all the charges framed against them, had no hesitation to impose the capital punishment against all the three male accused persons. ( 31 ) WE may now discuss the points taken by different appellants challenging the prosecution evidence and also challenging the verdict of the learned Trial Judge relying on such evidence. We have recorded earlier that out of four appellants, Mr. Mahato, the learned Advocate has represented before us the case of Aloke Nath, Mamata and Babu Roy and Mr. Bagchi has made his submissions on behalf of the appellant Mrinal Dutta. ( 32 ) WE shall first discuss the points taken by Mr. Mahato on behalf of his clients. Mr. Mahato, first of all, submits that there is not a single eyewitness from the side of the prosecution to support the commission of murder, erection of the 'bedi' or removal of the dead body and placing the same inside the 'bedi'. Mr. Mahato contends with reference to the evidence on record that prosecution could not produce a single witness to show that service of any mason was requisitioned by the appellants for construction of the 'bedi'. ( 33 ) MR. Mahato has, as a result, challenged the prosecution case regarding the identification of the skeleton so recovered from the place of occurrence with that of the physical remnant of deceased Biswanath Dutta. Mr. ( 33 ) MR. Mahato has, as a result, challenged the prosecution case regarding the identification of the skeleton so recovered from the place of occurrence with that of the physical remnant of deceased Biswanath Dutta. Mr. Mahato has taken us through the report of the CFSL and also the evidence of the expert who prepared that report and pointing out different infirmities both in the report and in the statement of the expert, Mr. Mahato submits with sufficient force that prosecution miserably failed to establish that skeleton of biswanath was recovered from the P. O. Mr. Mahato contends that at this modern age when there was scope of DNA test, by not adopting such test and by not placing DNA report before the Court, the prosecution miserably failed to show the basic ingredients of its case that Biswanath Dutta was murdered or that his skeleton was recovered from the P. O. ( 34 ) MR. Mahato contends that it is available from the deposition of amar, Samar and sister of Aloke Nath that there was previous enmity of amar and Samar with appellant Aloke Nath both regarding the property at 2c, Beadon Street and also regarding the fact that Aloke Nath had inter-caste marriage. Mr. Mahato submits that P. W. 15 Nandalal Singh was very much interested to grab the property taking advantage of family feud over the property and in all probability Nandalal with the help of Amar and Samar, two brothers of Aloke Nath, might have killed Biswanath and might have placed his body inside a 'bedi' to put Aloke Nath in trouble and this important aspect was totally ignored by investigating officers with ulterior motive of exonerating amar, Samar and Nandalal from the charge of murder. ( 35 ) MR. Mahato submits that all the relevant witnesses namely, two brothers of Aloke Nath, the intending purchaser Nandalal, the tenant Swapan dutta and the Advocate Bikash Pal made significant deviation from their earlier statement given before the investigating officer on all material points and in fact, all those witnesses made improvement of their statement during their examination in Court only to implicate the appellants. Mr. Mahato contends that this vital point touching the basic credibility of these witnesses was totally ignored by the learned Trial Judge. ( 36 ) MR. Mr. Mahato contends that this vital point touching the basic credibility of these witnesses was totally ignored by the learned Trial Judge. ( 36 ) MR. Mahato contends that the extra judicial confession alleged to have been made by Aloke Nath cannot be accepted at all since no independent witness supported making of such extra judicial confession and only the interested witnesses namely, two brothers of Aloke Nath and Nandalal supported the making of extra judicial confession and considering this aspect, the learned Judge was not justified in sustaining the conviction order relying on such extra judicial confession. ( 37 ) MR. Mahato submits that there was specific plea taken by appellant aioke Nath explaining his absence from the place of occurrence since 22nd january, 1994 and there was no explanation from the observation of the learned Trial Court for non-acceptance of such plea. Mr. Mahato also submits that examination of Aloke Nath under Section 313, Cr. P. C. was not proper and it is accepted principle of law that non-disclosure of material information pertaining to the Trial during examination under Section 313, Cr. P. C. would renoer the entire trial illegal and conviction in that process stands vitiated. ( 38 ) MR. Mahato finally submits regarding Aloke Nath that the confessional statement of Mrinal cannot be used to involve Aloke Nath in the commission of the murder and the learned Judge was not justified at all in placing any reliance on the confessional statement of Mrinal since according to Mrinal himself, he did not make such statement out of his own will and desire. ( 39 ) AS regards the appellant Mamata, Mr. Mahato contends that there is no evidence within the four-corner of the record to indicate that Mamata was ever a party to the so-called conspiracy either in the matter of disposal of the property or in the matter of killing of Biswanath and removal of his dead body. Mr. Mahato contends that there is no witness from the side of prosecution to state that Mamata was found present on the night of 22nd January, 1994 at the place of occurrence and hence, the learned Judge convicted Mamata simply on conjecture and surmise without having any iota of evidence to substantiate his order. ( 40 ) IN support of the case of appellant Shib Sankar Roy @ Babu Roy, mr. ( 40 ) IN support of the case of appellant Shib Sankar Roy @ Babu Roy, mr. Mahato submits that it appears from the trend of prosecution evidence that his only fault was that he happened to be a relative (Bhaira-Bhai) of appellant Aloke Nath. Mr. Mahato contends that there is no credible evidence from the side of prosecution to indicate that Babu was any way involved in the matter of execution of any agreement relating to the sale of the property and that Babu Roy was resident of 2c, Beadon Street at any point of time. Mr. Mahato submits that there is no credible evidence on record to suggest that Babu Roy was found present at the place of occurrence on the night of 22nd January or soon thereafter and hence, Mr. Mahato concludes that the learned Judge recorded his conviction order against Babu Roy also on mere suspicion without caring for any legal evidence to support such order of conviction. ( 41 ) WE may now discuss the points taken by Mr. Bagchi, appearing for the appellant Mrinal Dutta. Mr. Bagchi after scanning the evidence so far relevant for appellant Mrinal Dutta and after referring the relevant portion of the judgment relating got Mrinal Dutta submits before us that according to prosecution and so accepted by the learned Judge, the only important incriminating evidence against Mrinal Dutta appears to be his confessional statement recorded by P. W. 43 during investigation of the case. Mr. Bagchi submits that it is pertinent to mention that within a week of recording such statement Mrinal informed the concerned Magistrate retracting from his confessional statement that he never voluntarily made any such statement, but, due to constant threat, pressure and fear of torture in the hand of investigating agency he was compelled to give the statement which was never a product of his own will and desire. ( 42 ) MR. Bagchi has taken us through each line of the confessional statement which was marked exhibit 103 and Mr. Bagchi also took us through the evidence of P. W. 43, the learned Magistrate who recorded the confessional statement to impress his point that Mrinal out of threat and fear and fear for torture of his family gave the statement before the learned Magistrate. 'mr. Bagchi also took us through the evidence of P. W. 43, the learned Magistrate who recorded the confessional statement to impress his point that Mrinal out of threat and fear and fear for torture of his family gave the statement before the learned Magistrate. 'mr. Bagchi contends that Mrinal was taken from the jail custody at the early hour to police custody for a stage rehearsal under constant threat to make a statement and soon thereafter his statement was recorded by the learned magistrate being escorted by police officers these undisputed facts would establish that Mrinal did not give any statement out of his free will and desire, but, his entire statement subsequently utilized by prosecution not only to implicate Mrinal but to implicate all the other appellants was a brain child of investigating officer and hence, the learned Trial Court was totally wrong and unjustified in placing reliance on such retracted confessional statement of mrinal. ( 43 ) MR. Bagchi on this point has relied on the decisions reported in 1996 SCC (Cr) 1343 (Preetam v. State of M. P.), 1983 SCC (Cr) 383 (Kora ghasi v. State of Orissa), 2004 SCC (Cr) 2081 : 2004 C Cr LR (SC) 1177 (Paramananda Pegu v. State of Assam) and 1992 SCC (Cr) 157 (Chandrakant chimanlal Desai v. State of Gujarat ). ( 44 ) MR. Bagchi while challenging the conviction and sentence of Mrinal next submits that looking at the charge No. 1 it would appear that according to prosecution itself the conspiracy was hatched sometime in the month of january, 1994, but, from the entire prosecution evidence nothing would be detected against Mrinal to establish that he was any way involved in the alleged occurrence taken place on 22nd January, 1994. Mr. Bagchi contends that Mrinal admittedly signed on some agreements and papers under the direction of Aloke Nath all at a time much before the occurrence of January, 1994 and signing on those documents much prior to 1994 cannot, by any stretch of imagination, make him a party to the alleged conspiracy of January, 1994 to commit the murder or for removal of the dead body. Mr. Mr. Bagchi has explained before us the scope of Section 120a of the I. P. C. and submits that when earlier involvement of an accused has got no nexus with subsequent conspiracy culminating in commission of the actual offence, the accused having any involvement in the earlier conspiracy cannot be made liable for the subsequent conspiracy resulting commission of the crime and naturally, Mrinal cannot be involved for alleged commission of murder and at least against mrinal there is evidence save and except his retracted judicial confession to implicate him in the commission of the murder. Mr. Bagchi to substantiate his point has relied on the decision reported in 1984 SCC (Cr) 487 (Sharad birdhi Chand Sarda v. State of Maharashtra) and also of 1979 SCC (Cr) 479 (Ram Lal Narang v. State of Delhi Administration ). ( 45 ) MR. Bagchi next contends that it is the specific case of Mrinal as appears from cross-examination of different material witnesses relating to execution of agreement and also appearing from his answer to different questions put to him under Section 313, Cr. P. C. that he was never physically present at the time of execution of any document and in view of this specific stand taken by Mrinal throughout the trial, the prosecution ought to have placed Mrinal for T. I. parade, but, without doing that only during deposition before the Court PW. Nandalal, P. W. Arumoy Bose and P. W. Bikash Pal, for the first time, identified Mrinal and the learned Trial Judge accepted such identification in support of his conviction order and this was not legally sustainable. Mr. Bagchi in support of his contention has relied on the decision reported in 1979 SCC (Cr) 621 (Kanan and Ors. v. State of Kerala), JT (2002)10 SC 608 (Lakhiwinder Singh and Ors. v. State of Punjab) and 2003 scc (Cr) 712 (Bhagwan Singh and Ors. v. State of M. P. ). ( 46 ) MR. Bagchi next submits that there is no evidence on record to show that Mrinai was present at the place of occurrence on 22nd January, 1994 or Mrinal was ever found soon thereafter at the place of occurrence and the extra judicial confession of Aloke Nath never mentioned involvement of mrinal in commission of the alleged crime an such extra judicial confession itself demolished the entire case of prosecution against Mrinal. ( 47 ) MR. ( 47 ) MR. Bagchi submits that it would appear from examination of Mrinal under Section 313, Cr. P. C. that many important questions were omitted during such examination and according Mr. Bagchi such defective examination of accused under Section 313, Cr. P. C. would render entire trial vitiated and in this regard Mr. Bagchi has drawn our attention to the decision reported in judgment Today (2003)3 SC page 585 : 2003 C Cr LR (SC) 550 (Yusuf @ babu Khan v. State of Rajasthari ). ( 48 ) MR. Bagchi to sum up his contention submits that on careful analysis of the entire prosecution evidence it would appear that save and except the retracted confessional statement of Mrinal, there was no other independent, credible and trustworthy evidence to implicate Mrinal either in the commission of murder or in the removal of the dead body and Mr. Bagchi submits with much emphasis that it has been the uniform observation of the Apex Court that it will be always unsafe, risky and unwise to sustain an order of conviction relying solely on retracted confession without asking for any sufficient corroborative evidence to implicate the confession maker in commission of the crime and Mr. Bagchi concludes that in this case the Trial Judge in total violation of this mandatory principle passed his conviction order as regards mrinal solely acting on his retracted confession without seeking a single corroborative or supportive evidence. ( 49 ) WE may now record the submissions of Mr. Kaji Safiullah, the learned P. P. in support of the judgment and order of the learned Trial Court. The learned P. P. at the outset submits that this particular prosecution case though involves a single murder, but, the entire episode rests on a well planed conspiracy entered into by four persons closely related with each other and the motive behind commission of the murder was simply monetary gain. The learned P. P. submits that from the nature of prosecution allegation it would not be proper to expect any direct evidence simply because the conspirators did not act on the spur of moment, but, their action was preplanned, well motivated and such plan was the result of continuous consultation amongst themselves over a considerable period of time and naturally, the entire prosecution case depends on cricumstantial evidence coupled with extra judicial confession and judicial confession. The learned P. P. before unfolding the prosecution case with the help of prosecution evidence has drawn our attention to an observation of the Hon'ble Supreme Court recorded in the case State of Punjab v. Karnail Singh, reported in 2004 SCC (Cr) 135 and we are very much tempted to quote para 12 of that judgment on which the learned P. P. has specifically drawn our attention;"exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law (See Gurbachan Singh v. Satpal Singh ). The prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U. P. v. Ashok Kumar Srivastava ). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, may guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish (See Inder Singh v. State Delhi Admn. ). Vague hunches cannot take place of judicial evaluation. "a judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. " (Per Viscount Simon in Stirland v. Director of Public Prosecution quoted in State of U. P. v. Anil Singh, SCC page 692 para 17 ). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth (See shivaji Sahabrao Bobade v. State of Maharashtra, State of U. P v. Krishna gopal and Gangadhar Behera v. State of Orisa ). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth (See shivaji Sahabrao Bobade v. State of Maharashtra, State of U. P v. Krishna gopal and Gangadhar Behera v. State of Orisa ). " ( 50 ) THE learned P. P. submits that the conspiracy to kill Biswanath was hatched as soon as Aloke Nath and the other appellants drew up the plan under guidance of Aioke Nath to dispose of the property in absence of biswanath when Biswanath was very much alive and from the prosecution evidence it is very much clear that such conspiracy was hatched as early on november 11, 1993 when the first agreement was executed between P. W. Nandalal and Aloke Nath where Aloke Nath and appellant Mnna! singed showing himself as Biswanath. The learned P. P. contends that Aloke Nath was a man of easy virtue which is available from prosecution evidence and his income as an employee of Police Department was not sufficient to meet his demand and soon after the death of his mother in April, 1993, he was eager to dispose of the property at 2c, Beadon Street and to prepare his plan and for execution of the same he took the active help and assistance of his wife Mamata, her sister's husband Babu and Babu's relation Mrinal. The learned P. P. contends that nothing is available from evidence to indicate as to what was the exact vocation of either Babu or Mrinal, but, the fact remains that Babu used to occupy a room of 2c, Beadon Street premises with the concurrence of Aloke Nath and since Mrinal was relative of Babu, it was not difficult for Aioke Nath to assemble both Babu and Mrinal in hatching the conspiracy. ( 51 ) THE learned P. P. submits that although in the charge framed against the appellants it was specifically indicated that the conspiracy took place in the month of January, 1994, but, prosecution evidence is abundantly clear that such conspiracy was hatched much before and precisely in the month of November, 1993 and taking the prosecution evidence as a whole, and considering the nature of evidence adduced during trial and not objected to by the present appellants at that stage, there is no merit in the contention as raised on behalf of Mrinal that framing of charge itself would destroy the prosecution case. The learned P. P. submits Section 465 of the Cr. RC. is very much there in aid of the prosecution that apart, the decision reported in 1990 criminal Law Journal SC page 1134 also will help the prosecution in this regard. ( 52 ) THE learned P. P. contends that there were as many as six agreements including receipt of advance over the property between Nandalal and Aloke Nath starting from 11th November till 14th February, 1994 which was long after murder of Biswanath and involvement of Mrinal, Babu and mamata in execution of those agreements is very much clear from prosecution evidence both oral and documentary and this facts clearly prove the story of conspiracy both before murder of Biswanath and after murder of Biswanath and naturally, in view of Section 10 of the Indian Evidence Act, prosecution successfully established from circumstantial evidence the hatching of conspiracy and actual execution of the plan of the conspirators by killing of biswanath and by removal of his dead thereafter. The learned P. P. in this regard has drawn our attention to the decision of the Hon'ble Supreme Court as reported in the case of Kehar Singh v. State of Delhi Admn. reported in air 1988 SC page 1883 : 1988 C Cr LR (SC) 146 and also Ram Narayan poply v. CBI reported in AIR 2003 SC page 2748. The learned P. P. in this regard has drawn our attention to the decision of the Hon'ble Supreme Court as reported in the case of Kehar Singh v. State of Delhi Admn. reported in air 1988 SC page 1883 : 1988 C Cr LR (SC) 146 and also Ram Narayan poply v. CBI reported in AIR 2003 SC page 2748. ( 53 ) AS regards the involvement of Aloke Nath, the learned P. P. submits that he was the maker of the game plan and his involvement started from november 11, 1993 and Aloke Nath not only executed the document with nandalal but also with P. W. Arumoy Bose and took sufficient money from him and all these facts clearly indicated that he was in urgent need of removing biswanath from this earth otherwise his game plan would not materialise. The learned P. P. submits that prosecution has successfully proved from credible witnesses that on 22nd January, Aloke Nath was physically present at 2c, beadon Street along with Mamata, Babu and Mrinal. Prosecution has successfully proved that on 22nd January at night Biswanath was last seen at 2c, Beadon Street and P. W. Swapan Dutta a tenant of the house deposed that Biswanath was offered a place at the Veranda of first floor under occupation of Aloke Nath to sleep for that night. P. W. Nandlal, P. W. Sudhakar Singh and p. W. Nawratan Singh on 23rd January at first noticed a newly constructed 'bedi' inside the room under occupation of Aloke Nath. ( 54 ) THE learned P. P. contends that the extra judicial confession of aloke Nath made in presence of several witnesses unfolded the gruesome murder of Biswanath and also the diabolical manner by which his body was disposed of. inside a cavity which was latter given a shape of 'bedi' within the room under occupation of Aloke Nath. ( 54 ) THE learned P. P. contends that the extra judicial confession of aloke Nath made in presence of several witnesses unfolded the gruesome murder of Biswanath and also the diabolical manner by which his body was disposed of. inside a cavity which was latter given a shape of 'bedi' within the room under occupation of Aloke Nath. The learned P. P. contends that the presence of Aloke Nath and other conspirators at the place of occurrence on 22nd January, 1994, the presence of Biswanath at the place of occurrence on 22nd January and thereafter his totally missing from this world, the erection of 'bedi', the dismantling of 'bedi' at the instance of Aloke Nath, subsequent recovery of the skeleton from inside the 'bedi', identification of the skeleton to be that of dead body of Biswanath, the cause of death of Biswanath by throttling, presence of Aloke Nath and his family inside the room with the concealed dead body of Biswanath for at least three weeks, shifting of Aloke nath with his family to a rented house on 14th February, 1994, the presence of Mrinal and Babu at 2c, Beadon Street on 23rd January and again on 7th february and on 14th February, 1994 have been proved with credible witnesses through the chain of circumstances. ( 55 ) THE learned P. P. contends that prosecution not only succeeded to establish each act of the conspirators relating to the commission of the crime from circumstantial evidence, but, the confessional statement of Mrinal will equally bind each of the conspirator under Section 30 of the Evidence Act and in this regard, the learned P. P. has drawn our attention to the decision of the Hon'ble Supreme Court in the case of Government of NCT of Delhi v. Jaspal Singh reported in 2004 SCC (Cr) 933. ( 56 ) THE learned P. P. contends that all the points taken by appellant mrinal to disown his confessional statement and to support his case that such statement was not voluntary, but, the product of coercion and threat, can have no value when subsequent conduct of Mrinal would be taken into consideration. ( 56 ) THE learned P. P. contends that all the points taken by appellant mrinal to disown his confessional statement and to support his case that such statement was not voluntary, but, the product of coercion and threat, can have no value when subsequent conduct of Mrinal would be taken into consideration. The learned P. P. contends that while the confession was recorded on 21st March, 1994 Mrinal sent his statement to retract from the confessional statement only on 16th June, 1994 and this long gap clearly indicates that the retraction was motivated with ulterior design. The learned P. P. submits that it has been the constant endeavour on the part of Mrinal to impress upon this court that officer Anil Kar compelled him to make the statement before the learned Magistrate, but, it is surprising to note that during cross-examination of said Anil Kar as P. W. 44, no suggestion to that effect was given to the said witness on behalf of Mrinal and, in fact, it would appear from record that mrinal did not put any independent question during cross-examination of said witness, but, he simply adopted the cross-examination done by other appellants. The learned P. P. submits that Mrinal had, at one stage, stated that the learned magistrate himself recorded the statement looking at a paper supplied by police and at the same breath he disclosed that he himself gave the statement looking at a paper. The learned P. P. submits that if the confessional statement is examined along with the deposition of the learned Magistrate as P. W. 43, there is no scope to hold that such confessional statement was the product of any coercion, threat or promise, but, the only conclusion could follow that mrinal voluntarily made such confessional statement. ( 57 ) THE learned P. P. contends that from the entire prosecution evidence both oral and documentary prosecution successfully built up a complete chain of circumstances leading to only one conclusion regarding the guilt of all the appellants and the chain of circumstances so built up has been sufficiently corroborated both by extra judicial confession of Aloke Nath and by judicial confession of Mrinal and naturally, there is no scope for any of the appellant to raise any finger of doubt about the prosecution case and against the conviction order recorded by the learned Trial Judge. ( 58 ) IN the background of the submissions made by the appellants and made on behalf of the State respondent and having regard to the evidence adduced by the prosecution during trial both oral and documentary, we are now to decide how far and to what extent we can accept the prosecution evidence and we can lend our support to the findings and order of conviction of the learned Trial Judge. ( 59 ) THERE is no denying of the fact so far the present case is concerned that to substantiate the charges framed against the appellants prosecution relied on circumstantial evidence, on extra judicial confession and on judicial confession of one of the appellants. It is well established principle of criminal trial that prosecution charge can be proved from circumstantial evidence alone considering the special features of the case under consideration provided prosecution succeeds in establishing a complete chain of circumstances with the help of cogent, convincing and credible evidence and such circumstances taken together would unhesitatingly point out to only one hypothesis relating to the guilt of the accused persons. ( 60 ) IT is well-accepted principle of law that prosecution can also rely on extra judicial confession of an accused person if such confession appears to be acceptable in the eye of law and if such extra judicial confession gets sufficient corroboration from other fact and evidence on record. Similarly, it is also accepted position of law that a trial Court can rely to sustain its conviction on confessional statement if the trial Court is satisfied from all facts and evidence that such confessional statement was a product of genuine will and desire of its maker and not tainted by any threat, coercion or promise. It is also accepted principle of law when more than one persons would be involved in commission of an offence, a confessional statement of a co-accused also binds the other co-accused. ( 61 ) AFTER careful analysis of the case we find from evidence on record that Aloke Nath, an employee of the Calcutta Armed Police was addicted to gambling and in fact, he can be said to be a man of easy virtue. There is evidence on record to establish his close association with Mrinal and Babu who happened to be his relation by matrimonial connection. There is evidence on record to establish his close association with Mrinal and Babu who happened to be his relation by matrimonial connection. Babu at the material time was a resident of 2c, Beadon Street where Aloke Nath with his family used to reside. Mrinal had a residence at Nimta not far away from 2c, beadon Street and easily approachable by train connection. ( 62 ) FROM prosecution evidence particularly from the documents seized by the investigating officer in connection with investigation, we notice that aloke Nath entered into six agreements including receipt of advance with p. W. 15 Nandalal and the dates of those agreements and taking of advanced are very relevant and those are as follows. ( 63 ) 11th November, 1993 when on execution of the agreement for sale for Rs. 2,60,000/- Aloke Nath took Rs. 30,000/- as advance in presence of Mrinal who posed himself as Biswanath, on 12th December, 1993 when aloke Nath took Rs. 20,000/- as advance in presence of Mrinal who posed as Biswanath and where Mamata was also present, on 25th December, 1993 when Aloke Nath alone took Rs. 10,000/-, on 23rd January, 1994 the date after murder of Biswanath Aloke Nath delivered possession of second floor which was under occupation of Biswanath and Aloke Nath received Rs. 50,000/- in presence of Mrinal and Babu Roy and on both 23rd January and 7th February, 1994 Mrinal posed himself as Biswanath although Biswanath was no longer seen after 22nd January, 1994. The last document was executed on 14th February when Aloke Nath took advance of Rs. 10,000/- and handed over the first floor under his occupation and left for his rented house and there Babu was a witness. The transaction regarding to these agreements and receipt of advance have been proved by P. W. Nandalal, Ashok Singh, nawratan Singh. ( 64 ) P. W. 14 Advocate Bikash Pal has testified that after the advertisement published on 31st January, 1994 Aloke Nath, Mrinal and Babu came to his chamber in connection with the proposed settlement with the brothers of Aloke Nath. ( 64 ) P. W. 14 Advocate Bikash Pal has testified that after the advertisement published on 31st January, 1994 Aloke Nath, Mrinal and Babu came to his chamber in connection with the proposed settlement with the brothers of Aloke Nath. On verification of the agreement we find that all the stamp papers were purchased just two or three days before the actual date of signing and this completely destroys the argument of Mrinal that he signed all the documents at a time and he was never physically present in connection with signing of those documents. ( 65 ) THUS, having regard to the documents itself and having regard to the evidence of P. W. Nandalal, Ashok Singh, Nawratan Singh and Bikash Pal, we are totally convinced that since November, 1993 Mrinal and Babu were directly involved behind the conspiracy of disposal of the property and they shared the common intention with Aloke Nath that physical existence of biswanath would be a problem for disposal of the property for which to do away with the presence of Biswanath, Mrinal impersonated him and Mamata was a party to such conspiracy all along. ( 66 ) THE point taken by learned Advocate for Mrinal that Mrinal was at best a party to the conspiracy regarding signing of document on behalf of biswanath has got no credibility in view of the fact that even on 23rd January when Biswanath was no longer there Mrinial posed himself as Biswanath and signed on the document and he repeated the same thing on 7th February, 1994 also. ( 67 ) MRINAL himself has not denied his signature made as Biswanath during his examination under Section 313, Cr. P. C. and the handwriting expert also opined the same and Mrinal was identified as Biswanath by P. W. Nandalal, ashok Singh and Bikash Pal. ( 68 ) THE character and conduct of Aloke Nath would be further clear when we find execution of a separate agreement for disposal of the self same property with P. W. Arumoy Bose and where he took Rs. 65,000/- and there also Mrinal signed posing himself as Biswanath. P. W. Arumoy Bose and witness sekhar Dey both identified Mrinal as Biswanath during trial. 65,000/- and there also Mrinal signed posing himself as Biswanath. P. W. Arumoy Bose and witness sekhar Dey both identified Mrinal as Biswanath during trial. In view of this overwhelming evidence about involvement of Mrinal and his identification by a number of witnesses, we think that there was no justification for holding out any T. I. parade and all the decisions referred to by Mr. Bagchi in this connection have got no relevance so far the present case is concerned. ( 69 ) THUS, from the prosecution evidence we get a clear picture about the hatching of conspiracy and also a plan regarding physical extinction of biswanath by all the appellants. From the evidence of record we are very much convinced that on 22nd January, 1994 Aloke Nath left his office and came to 2c, Beadon Street and the conspirators already utilised the room of biswanath at second floor as their store house for building materials used for raising a cavity and we are further convinced from evidence of P. W. Swapan and other tenants of the house that on 22nd January, 1994 Biswanath was last seen at the premises of 2c, Beadon Street. The point raised by Mr. Mahato that no mason was examined to show raising of a 'bedi' appears to be very funny, indeed because, the conspirators were not fool that they would retain a mason to witness their sinister design relating to disposal of the dead body and it is quite natural that the conspirators themselves did the masonry work. ( 70 ) THE evidence of P. W. Nandalal is very relevant in the sense that he along with others for the first time noticed the erection of 'bedi' on 23rd january and it is available from the evidence of brothers of Aloke Nath and other tenants that on 6th March, 1994 at the instance of Aloke Nath the 'bedi' was dismantled and the skeleton was recovered. ( 71 ) MR. Mahato alone raised doubt about identify of the skeleton and about cause of death of Biswanath. We have considered the evidence of Dr. Nandy and Dr. ( 71 ) MR. Mahato alone raised doubt about identify of the skeleton and about cause of death of Biswanath. We have considered the evidence of Dr. Nandy and Dr. Kashyap of CFSL and after considering all connected evidence of the manager of UBI and the colleague of Biswanath, we are of the view that the skeleton was that of Biswanath and we are further convinced that biswanath died due to throttling and we are further convinced after considering the manner of disposal of the dead body that it was the action of a group of persons together and no single man could have disposed of the dead body in the manner it was actually done. ( 72 ) FROM the prosecution evidence both oral and documentary we share the view of the learned Trial Judge that in this particular case prosecution successfully built up a complete chain of circumstances which unerringly proved that on 22nd January, 1994 Biswanath came to the house, Biswanath was killed on that date by throttling and a group of persons put his dead body into a cavity inside the room under occupation of Aloke Nath and thereafter a 'bedi' was constructed, the 'bedi' was dismantled at the instance of Aloke nath and only after dismantling of the 'bedi' the skeleton came out. We also find from the evidence on record that even after physical disappearance of biswanath on 22nd January, 1994, all the conspirators acted together as it is evident from their presence at the P. O. on 23rd January, 7th February, 1994 and 14th February, 1994. ( 73 ) IN this case apart from the circumstantial evidence, prosecution has also come forward with the extra judicial confession of Aloke Nath and confessional statement of Mrinal Dutta. From the ratio of decision of the hon'ble Supreme Court reported in the case of Ram Khilari v. State of rajasthan, 1999 Cr LJ page 1450, we get that extra judicial confession made before reliable witnesses can very well form the basis of conviction. From the ratio of decision of the hon'ble Supreme Court reported in the case of Ram Khilari v. State of rajasthan, 1999 Cr LJ page 1450, we get that extra judicial confession made before reliable witnesses can very well form the basis of conviction. In this particular case the advertisement of 31st January, the arrival of brothers of aloke Nath at 2c, Beadon Street, false statement of Aloke Nath and his wife mamata about Biswanath and subsequent extra judicial confession of Aloke nath in presence of two brothers, Nandalal and other tenants strongly lead us to hold that Aloke Nath actually made the extra judicial confession and this extra judicial confession gets further corroboration when we find that it was aloke Nath alone Who pointed out the 'bedi' and in whose presence the 'bedi' was dismantled and in whose presence the skeleton of Biswanath was recovered and in fact, it was not possible for any one to recover the skeleton of Biswanath in absence of indication of Aloke Nath and thus, we have no hesitation to hold that in this case extra judicial confession of Aloke Nath can be a strong basis of conviction without carrying for any other supporting evidence. ( 74 ) MUCH attack has been made on behalf of Mrinal Dutta regarding his confessional statement which was exhibit No. 103. We have examined exhibit No. 103 and we have also examined the statement of P. W. 43, the learned Magistrate who recorded the statement. We find that the learned magistrate after due compliance of all legal formalities and after being satisfied about the voluntary nature of the statement proceeded on recording the statement and after recording of the statement, the learned Magistrate certified that he was fully satisfied about the voluntary nature of the statement and he was also satisfied that no police personnel was present within the sight and hearing of either of the confession maker or the learned Magistrate. ( 75 ) FROM the record we find that Mrinal gave his confessional statement on 21st March, 1994 and only on 16th June, 1994 he retracted from the said statement and by this time it was quite natural for him to become wiser in association with other inmates of the jail. ( 76 ) MRINAL to retract from the confessional statement took different stand at different time according to his convenience. ( 76 ) MRINAL to retract from the confessional statement took different stand at different time according to his convenience. Keeping in mind all the decisions cited by Mr. Bagchi of the acceptability of confessional statement and after careful examination of the confessional statement itself along with the statement of the learned Magistrate, we are of the view that in this case the confessional statement of Mrinal can be taken without any doubt as voluntary statement of Mrinal made within a reasonable time after commission of the crime reflecting his state of mind showing repentance and such state of mind in all probability was a product of natural and voluntary desire of its maker. ( 77 ) WE are well aware of the legal position that a retracted confession can at best be used as a corroborative piece of evidence. After being satisfied with the chain of circumstances established by the prosecution in this particular case from the circumstantial evidence, we find that the confessional statement of Mrinal fits with the circumstantial evidence as a natural corollary and to fit the confessional statement of Mrinal with the chain of circumstances already established by prosecution, no help of imagination is required. ( 78 ) THUS, both from extra judicial confession of Aloke Nath and from confessional statement of Mrinal along with the entire chain of circumstances established by prosecution from its oral and documentary evidence, we have no hesitation to hold that in this particular case prosecution side succeeded beyond any shadow of doubt to prove that Aloke Nath, Mamata, Babu and mrinal conspired to kill Biswanath much before 22nd January, 1994 as biswanath was considered to be stumbling block for disposal of the property and in fact, prosecution also succeeded beyond any shadow of doubt that on 22nd January, 1994 all the four persons killed Biswanath by throttling and 'hereafter all of them carried the dead body and placed the same in the cavity and created the 'bedi' only for screening of evidence. Prosecution also succeeded from evidence to show that the conspirators after killing of biswanath further acted together to complete the deal by giving the possession of the house to Nandalal Singh by installment first on 23rd January, 1994 and thereafter on 14th February, 1994. Prosecution also succeeded from evidence to show that the conspirators after killing of biswanath further acted together to complete the deal by giving the possession of the house to Nandalal Singh by installment first on 23rd January, 1994 and thereafter on 14th February, 1994. ( 79 ) WE have also considered the objections taken on behalf of Aloke nath and Mrinal regarding their examination under Section 313, Cr. P. C. , but, on careful examination of the record of Trial Judge, we are satisfied that the learned Trial Judge put all the relevant questions during examination of the appellants under Section 313, Cr. P. C. and further, we are very much convinced from record that none of the appellants had any scope to full prejudiced for any alleged infirmity in examination of them under Section 313, Cr. P. C. ( 80 ) AT this juncture, when we accept the prosecution evidence and when we conclude that prosecution succeeded to prove its case beyond any shadow of doubt, we like to reiterate our faith on the observation of the hon'ble Supreme Court made at para 12 of the judgment of Karnail Singh (supra ). ( 81 ) THUS, after hearing the elaborate argument of the rival parties in connection with all the three appeals and after careful consideration of the entire prosecution evidence, we are convinced that in this case prosecution succeeded to bring home all the three charges against all the four appellants and accordingly, we have no hesitation in mind to record our stamp of approval regarding the order of conviction passed by the learned Trial Judge as regards all the appellants under Sections 302/120b, 302/34 and 201/34 of the I. P. C. ( 82 ) WE have recorded earlier that in this case out of four appellants except Mamata, the female appellant, all the three male appellants Aloke nath, Mrinal and Babu were awarded capital punishment by the Trial Court after recording reasons as required under Section 354 (3) of the Cr. P. C. Under the provisions of the Cr. P. C. awarding of capital punishment requires confirmation by this Court which resulted the present death reference. ( 83 ) MR. P. C. Under the provisions of the Cr. P. C. awarding of capital punishment requires confirmation by this Court which resulted the present death reference. ( 83 ) MR. Mahato on behalf of Aloke Nath and Babu submits before us that it has already been laid down by the Hon'ble Supreme Court that only in the rarest of rare case Court should consider awarding of death sentence otherwise life imprisonment is a general rule of prudence. Mr. Mahato contends that the present crime can not be brought within the parameter of rarest of rare case and considering the mitigating circumstances standing in favour of the appellants, their age, fate of their family, chance of their repentance and rehabilitation, it is a fit case to commute death sentence to that of life imprisonment. ( 84 ) MR. Bagchi, appearing for Mrinal Dutta submits before us that so far the case of Mrinal is concerned, he deserves reconsideration of his capital sentence keeping in mind that he was forced to play his role in the so-called conspiracy and he was neither related to the deceased nor he had any independent motive behind the commission of the murder. Mr. Bagchi has referred to the ratio of decision in the case of Bachan Singh v. State of Punjab reported in 1980 SCC (Cr) 580 and Machhi Singh and Ors. v. State of Punjab reported in 1983 SCC (Cr) 681 to press his point that the Hon'ble Court clearly laid down the guideline to be followed strictly while awarding capital punishment. Mr. Bagchi submits that the present case neither in its nature of cruelty nor regarding the conduct of the appellants can be called a rarest of the rare case demanding capital punishment. Mr. Bagchi submits that the concept of punishment has undergone a radical change in the recent years which speaks for rehabilitation and reformation of the convict and keeping that salutary principle of punishment, the Trial Judge was not justified in awarding the capital punishment against Mrinal. Mr. Mr. Bagchi submits that the concept of punishment has undergone a radical change in the recent years which speaks for rehabilitation and reformation of the convict and keeping that salutary principle of punishment, the Trial Judge was not justified in awarding the capital punishment against Mrinal. Mr. Bagchi submits that while awarding capital punishment a balance sheet is required to be drawn between aggravating circumstances focused by the prosecution and the mitigating circumstances to be collected by the sentencing Judge from available evidence and the learned Judge must consider whether there is ample evidence from the side of prosecution to indicate that survival of the convict would be real menace to the society and he will be not be amenable to the rehabilitation process supported by the society at large. Mr. Bagchi contends that in this case the learned Judge did not consider at all the mitigating circumstances standing in favour of the appellant Mrinal, but, this Court should refuse the death reference after considering the mitigating circumstances and alter taking into consideration that accused Mrinal cannot be considered to be a menace to the society and he would be amenable to the process of rehabilitation and reformation if a chance is given to him considering the fact the he is a family man and he is a young man having a long path to go. ( 85 ) THE learned P. P. , on the other hand, submits that generally standing for the State respondent he would not submit for awarding of capital punishment when there is no denying of the fact that in the recent years the age old idea of vengeance has lost its grounds to the more radical and elevated concept of reformation and rehabilitation since the society no longer considers a convict as a burden of the society but considers criminal offence by and large a bye-product of social and economic disequilibrium. The learned P. P. submits that so far the present case is concerned, he would like to take a different stand and the deviation which he would make from the established norms is the result of the peculiarity of the present prosecution case which depicts a pre-planned conspiracy to annihilate a defenseless person through a preplanned design with a sinister motive of simple financial gain. The learned P. P. submits that the manner in which the murder was committed appears to be less diabolical than the manner the dead body was disposed of and the conduct of the appellants soon after the occurrence by their executing further agreements and by taking advance from the intending purchaser. The entire prosecution case simply depicts the inhuman behaviour of the appellants at the time of commission of the crime and their barbaric indifference after killing of the victim and taking together this act and conduct of the appellants bring the case within the parameter of rarest of rare case and hence, he advocates for acceptance of the death reference. The learned P. P. in support of his contention has drawn our attention to the decision of the Hon'ble Supreme court reported in the case of State of Rajasthan v. Kjheraj Ram reported in 2003 SCC (Cr) 1979, Mohendra Nath Das v. State of Assam reported in AIR 1999 SC 1926 and Joy Kumar v. State of M. P. reported in AIR 1999 SC 1860 . ( 86 ) THE constitutionality and legal validity of Section 302 of the I. P. C. which provides death sentence as an alternative to life imprisonment and the legality of provision 354 (3) of the Cr. P. C. came up for consideration before a five Judges Bench of the Hon'ble Supreme Court in the case of Bachan singh v. State of Punjab reported in 1980 SCC (Cr) 580 and the majority of the Hon'ble Judges held Section 302 of the I. P. C. constitutionally valid and so also the provision contained in Section 354 (3) of the Cr. P. C. In connection with Bachan Singh's case the majority of the Hon'ble Judges was of the view that only in the rarest of rare case Court may opt for capital punishment and the Court, at the same time, recorded their view that it was not possible to categories the rarest of rare cases in a computerised manner and the Trial judge or for that matter the Higher Court must consider each case independently to decide whether it would come within the parameter of rarest of rare case considering the nature of the crime, the manner it was executed, the conduct of the accused persons and other incidental matters along with the mitigating circumstances standing in favour of the accused persons. ( 87 ) IN the case of Machi Singh and Ors. (supra), the Hon'ble Supreme court further developed the concept of rarest of rare cases and mentioned some instances which would fall within the category to call for awarding of capital punishment. ( 88 ) THE Apex Court thereafter in plethora of decision following the ratio of decision of Bachan Singh and Machhi Singh and considering fact of each case, awarded capital punishment considering the particular case within the parameter of rarest of the rare case. ( 89 ) FROM the submissions of Mr. Bagchi and also from the submissions of the learned P. P. and having regard to the ratio of decisions of the Hon'ble court rendered in the case of Bachan Singh and Machhi Singh, we find that to bring a case within the parameter of rarest of rare case the nature of the crime, the manner of its execution and the conduct of the accused persons after commission of the crime are some of the factors for consideration. At the same time before awarding capital punishment the Court is to draw a balance between aggravating and mitigating circumstances and if the aggravating circumstances outweigh the mitigating circumstances and if the case falls within the category of rarest of rare case, the Court shall have no hesitation to award capital punishment. ( 90 ) COMING to the factual matrix of the present case we get from the evidence on record that long drawn conspiracy was hatched before execution of the crime relating to murder of Biswanath by all the three male appellants along with the female appellant. We find from evidence that taking Biswanath in a defenseless condition and when he was asleep having reposed faith on his own full brother, the conspirators killed him by throttling. We get from evidence that after killing of Biswanath his dead body was folded and the same was placed within a cavity inside the room under occupation of his brother by the conspirators and thereafter brick wall was raised to remove all evidence of murder. We get from evidence that on the next date of murder the conspirators accepted advance from the intending purchaser and transferred the accommodation of Biswanath in favour of the intending purchaser and there all the conspirators posed as if Biswanath was alive and mrinal showed himself as Biswanath. We get from evidence that on the next date of murder the conspirators accepted advance from the intending purchaser and transferred the accommodation of Biswanath in favour of the intending purchaser and there all the conspirators posed as if Biswanath was alive and mrinal showed himself as Biswanath. We get from evidence that after murder of Biswanath and after concealing his dead body within his room Aloke Nath and his wife Mamata spent more than three weeks in the room performing all their normal household duties. We get from evidence that all the conspirators on 7th February and 14th February helped each other to deliver the entire possession of the house to the intending purchaser and thereafter Aloke Nath shifted to other house. It is also available from evidence that soon after murder of Biswanath, all his belonging were sold for money. ( 91 ) THE facts revealed from the evidence on record clearly show the nature and conduct of the appellants and the aggravating circumstances, standing against them and searching for the mitigating circumstances standing in favour of the appellants, frankly speaking, we find none. Aloke Nath was no doubt the king pin of the conspiracy, but, without the active help and participation of Mrinal and Babu, Biswanath could not have been killed in the manner it was done and his dead body could not have been concealed in the manner it was done. It was significant to mention that soon after the occurrence ail the appellants behaved normally, performed their normal duties and accepted the advance and shared the money. ( 92 ) HAVING regard to the balance sheet of the aggravating and mitigating circumstances available from record and having regard to the several decisions cited at the Bar, we are inclined to hold that this case squarely comes within the parameter of rarest of rare case and we have no hesitation in mind to hold that the learned Judge rightly exercised the option in favour of the capital punishment. ( 93 ) THE question may be raised whether the case of Mrinal and Babu can be differentiated from that of Aioke Nath, we have given our anxious deliberation over this issue, but, having regard to the entire fact and circumstances and having regard to the part played by both Mrinal and Babu since beginning of the conspiracy till 6th March, 1994 when the conspiracy came to the light and when the skeleton of Biswanath was brought out, we do not find any reasonable ground to make any discrimination, rather, we are of the view that all the three were as if made for each other to complete the pre-planned murder and to complete the screening of evidence which was also a product of their well planned design. ( 94 ) ACCORDINGLY, we dismiss all the three criminal appeals and we affirm the order of conviction and sentence recorded by the learned Trial judge. We also accept the death reference of the learned Judge and hereby we confirm the death punishment imposed against Aloke Nath Dutta, Mrinal dutta, Shib Sankar Roy @ Gobinda @ Babu. ( 95 ) SEND a copy of this judgment and order at once to the superintendent of Jail/correctional Home where the appellants are lodged. ( 96 ) SEND a copy of this judgment and order at once to the learned trial Judge along with LCR for taking further action in accordance with law. Deb, J.-I agree.