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2006 DIGILAW 518 (GAU)

Milonjoy Reang v. State of Tripura

2006-05-31

A.B.PAL, RANJAN GOGOI

body2006
1. This appeal is directed against the Judgment and order dated 3, 6.2000 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Sessions Trial No. 48 (ST/B) of 1999 whereby the accused/appellant has been convicted for commission of the offence under sections 3647 302/201 of the Indian Penal Code and section 27 of the Arms Act. He has been sentenced to undergo R.I. for life and to pay a fine of Rs. 10, 000 in default to suffer S.I. for three years under section 364 ; a IPC to undergo R.I. for life and to pay a fine of Rs. 10, 000 in default to suffer S.I. for three years under section 302 ; IPC, to suffer R.I. for seven years for commission of offence under section 201, IPC and R.I. for three years for commission of offence under section 27 of the Arms Act. The sentences of life imprisonment awarded under sections 364 and 302, IPC against the accused/appellant has been directed to run consecutively whereas the other sentences are to run concurrently. 2. The case of the prosecution, in short, is that on 10.3.1999 at about 0845 hours, S.I. Sajal Sharma (P.W. 12) of Manpathar Police Outpost received information from one Upendra Debnath that one Parendra Reang was abducted by armed extremists from his house at Gangarai. The information received was entered in the General Diary of the Police Station as Entry No. 204 dated 10.3.1999. PW 12, Sajal Sharma, along with a police force left for Gangarai to carry out a search to recover the abducted person. However, the police party could not trace out the abducted person or the extremists who had carried out the abduction and thereafter returned to the house of Parendra Reang. In the house of the abducted person one Chitta Reang (PW 11) lodged a FIR to the effect that on 10.3.1999 at about 8.00 A.M., while he was erecting a fencing in the house of Parendra Reang, four extremists came from the northern direction, entered the house of Parendra Reang and started to beat him with a lathi after tying his hands with a rope. Thereafter, Parendra Reang was taken towards Larihapara. In the FIR lodged it was further mentioned that at the time of abduction the extremists had fired one round from a pistol in their possession. Thereafter, Parendra Reang was taken towards Larihapara. In the FIR lodged it was further mentioned that at the time of abduction the extremists had fired one round from a pistol in their possession. The first informant, in the FIR lodged, had stated that he knew two of the extremists - one was Nirendra Reang and the other was Pashuram Reang. The further case of the prosecution is that after receipt of the FIR, PW 12 recovered an empty cartridge of 9 m.m. pistol from the court-yard of the house of Parendra Reang. The same was seized. According to the prosecution, though several attempts were made to recover the abducted person he could not be traced out, neither could the extremists who had carried out the abduction be arrested. According to the prosecution, at about 2315 hours of 3.4.99, PW 12, Sajal Sharma received a wireless message from the Officer-in-charge, Santirbazar Police Station to, attend the said Police Station in the following morning. Accordingly, on 4.4.1999 PW 12 went to Santirbazar P.S. and there he learnt from S.I. Ratan Mazumdar, Officer-in-charge of the Police Station (PW 8) that on 31.3.1999 one extremist by the name of Milanjoy Reang was arrested in an encounter. In the course of interrogation, the said extremist had made a statement that he along with accused Pashuram Reang, Niren Reang and Baburam Reang had abducted one Parendra Reang and after having beaten Parendra to death had buried his dead body somewhere deep into the jungle at Tuithangbari and that the accused can show/identify the spot where the dead body was buried. PW 8 had recorded the aforesaid statement of the accused Milanjoy Reang which was handed over to PW 12. PW 12 also interrogated the accused Milanjoy Reang and took him into custody. In the course of such interrogation the accused had made the same statement to PW 12. Thereafter, both PW 8 and PW 12 had requisitioned the services of an Executive Magistrate and a Medical Officer to remain at the spot in the event of discovery of the dead body besides arranging for a photographer and a sweeper. According to the prosecution, PW 12 had also sent information to Sajati (PW4) - wife of Parendra Reang to attend the Police Station in the morning of 5.4.1999. According to the prosecution, PW 12 had also sent information to Sajati (PW4) - wife of Parendra Reang to attend the Police Station in the morning of 5.4.1999. Thereafter, in the morning of 5.4.1999 the police party accompanied by an Executive Magistrate, doctor, photographer, sweeper and PW 4 and others had left the Police Station along with the accused Milanjoy. The police party along with other persons went upto Adipur in vehicles whereafter they walked on foot and reached village Tuithangbari. Thereafter, the accused Milanjoy led the party to an interior forest and pointed to a spot where the dead body of Parendra was stated to have been hurried. According to the prosecution, the accused Milanjoy along with others dug up the earth and thereafter the dead body of Parendra Reang was recovered which was at once identified by PW 4 who also identified the wearing apparels which the deceased had on his body at that time. Inquest report was prepared by the Executive Magistrate and post-mortem was also performed on the spot. The process leading to discovery of the dead body of the deceased was photographed. Thereafter, the dead body was handed over to PW 4 for cremation. According to the prosecution, both at Santirbazar Police Station and on the way to Tuithangbari the accused Milanjoy had made an extra-° judicial confession to PW 4 that he along with the other accuseds had abducted Parendra Reang and thereafter had beaten him to death and they had burried the dead body at the place from where it was recovered. 3. On completion of investigation PW 12 submitted charge-sheet against all the four accused persons for commission of offences under sections 365/302/201, IPC and section 27 of the Arms Act. It must be noticed that at the stage of submission of the charge-sheet only one accused, i.e., accused/appellant Milanjoy Reang, was under arrest in connection with the offence and subsequently accused Pashuram Reang was arrested whereas the other two accused persons were absconding. After submission of the charge-sheet by the police in the court of the learned a S.D.J.M., Belonia, the case being exclusively triable by the Court of Sessions, the learned S.D.J.M., Belonia committed the case to the court of learned Additional Sessions Judge, Belonia. After submission of the charge-sheet by the police in the court of the learned a S.D.J.M., Belonia, the case being exclusively triable by the Court of Sessions, the learned S.D.J.M., Belonia committed the case to the court of learned Additional Sessions Judge, Belonia. Before the learned trial court charge was framed against all the accused persons including the present accused/appellant under sections 364/302/201, IPC and under, section 27 of the Arms Act. The accused/appellant having pleaded not guilty and having claimed to be tried the trial commenced. In course of the trial the prosecution examined as many as 12 witnesses and exhibited a large number documents including the material objects seized in the course of the investigation. The defence did not adduce any evidence. However, the accused/appellant was examined under section 313, Cr.PC where he denied the offence alleged. At the conclusion of the trial the accused/appellant has been convicted and sentenced as aforesaid. Hence, the present appeal. 4. The salient facts as unfolded by the evidence of the witnesses examined by the prosecution may be noticed at the at this stage. PW 1, Upendra Reang, had stated that on the day of occurrence, i.e., 10.3.1999 at about 8.00 A.M. he was sitting in a tea stall atGangarai. At that time he found four persons including Pashuram Reang and Niren Reang going towards the English Medium School. After a while he found the aforesaid four persons were dragging the deceased Parendra Reang through the field. The hands of the deceased were tied. PW 1 had also deposed that he had heard a gun shot around that time. According to PW 1, at about noon time the police had come to the house of Parendra Reang. At that time he along with others were in the house of Parendra Reang. This witness had deposed that from the court-yard of the house of Parendra Reang the police had seized an empty revolver bullet. PW 2, Bahadur Reang, is the brother-in-law of the deceased. Nothing substantial had been disclosed by this witness. PW 3, Sankar Mali, was the sweeper engaged by the police to disinter the dead body. This witness had deposed that on a certain day about 9/10 months back he had reported to the Manpathar Police Outpost on the requisition of the Officer-in-charge. Nothing substantial had been disclosed by this witness. PW 3, Sankar Mali, was the sweeper engaged by the police to disinter the dead body. This witness had deposed that on a certain day about 9/10 months back he had reported to the Manpathar Police Outpost on the requisition of the Officer-in-charge. Along with other police personnel he came to Santirbazar Police Station and accompanied by police officers, a doctor and a Magistrate he had gone to Adipur. PW 3 had deposed that in the vehicle in which he had travelled there was one extremist who informed that he along with others had killed one Parendra Reang and had hurried the dead body at Tuithangbari and that he would show the place where the dead body was burried. PW 3, however, failed to identify the accused/appellant in court though he had deposed that on reaching Tuithangbari the extremist had taken the police party to a particular place deep inside the forest which on being dug was found to contain the dead body of Parendra Reang which was identified by his wife (PW 4). PW 4, Sajati Reang, is the wife of the deceased. According to her, on 10.3.1999 at about 8.00 A.M. while her husband was brushing his teeth in the court-yard, four persons including Niren Reang and Pashuram Reang came to their house. PW 4 had deposed that the aforesaid four persons fired one round in the air from a pistol and tied the hands of her husband. Thereafter they had beaten up her husband and had takefi him away at revolver point. PW 4 also deposed that the miscreants took away her husband in spite of her repeated pleadings not to do so and that though she had cried for help none from the neighbourhood had came forward to help her. PW 4 had further deposed that she went to Manpathar Police Outpost to intimate the police about the incident whereafter police came to her house and also searched the nearby places but could not trace out her husband. This witness had deposed that after about a month of the incident she received an information from the police to go to Manpathar Outpost. Accordingly, she went to Manpathar Outpost from where she was taken to Santirbazar Police Station. This witness had deposed that after about a month of the incident she received an information from the police to go to Manpathar Outpost. Accordingly, she went to Manpathar Outpost from where she was taken to Santirbazar Police Station. At Santirbazar Police Station she was informed by the Officer-in-charge that one accused who had been arrested had confessed to the killing of her husband and further that the dead body was being kept hurried in the jungle. PW 4 had specifically deposed that as soon as she saw the accused Milanjoy in the Police Station she could recognize him as one of the four persons who had abducted her husband. According to PW 4, she had asked the accused Milanjoy as to why they had abducted and killed her husband to which he replied by saying that accused Niren Reang had a grudge against her husband as the police used to visit her husband from time to time. PW 4 had also identified the accused/appellant Milanjoy in the court. PW 4 had further deposed that along with the Magistrate, a doctor and police personnel she had gone to Adipur and from Adipur they proceeded on foot towards Tuithangbari. At Tuithangbari in a low lying land, in between two hills, inside a dense bush of bamboos the accused Milanjoy pointed to a particular place which on being dug the dead body of her husband was recovered. PW 5, Anupam Roy, is a photographer who had accompanied the police party to disinter the dead body of Parendra Reang. He had corroborated the other witnesses examined with regard to the accused/appellant Milanjoy's showing the particular spot from where the dead body was recovered. PW 6, Charanjoy Reang, is a resident of Tuithangbari who was called by the police to witness the recovery of the dead body. He had corroborated the other witnesses on the point that it is the accused Milanjoy who had shown the particular place which on being dug the dead body of Parendra Reang was recovered. PW 6 had deposed that accused Milanjoy had told the others present that he along with other accuseds had abducted Parendra Reang and murdered him and thereafter had burried the dead body in the particular spot. PW 7 is another resident of Tuithangbari who was called by the police to witness the recovery of the dead body. PW 6 had deposed that accused Milanjoy had told the others present that he along with other accuseds had abducted Parendra Reang and murdered him and thereafter had burried the dead body in the particular spot. PW 7 is another resident of Tuithangbari who was called by the police to witness the recovery of the dead body. He corroborated the other witnesses on the aforesaid point and had also identified the accused Milanjoy as the person who had pointed out the place from where the dead body was recovered. PW 8, Ratan Mazumdar, S.I. of Police, was working as the Officer-in-charge of Santirbazar Police Station at the relevant point of time. In his deposition he had stated that on receipt of the F.I.R. submitted by one Chitta Reang (PW11) Santirbazar P.S. Case No. 17/1999 was registered in respect of the incident in question. PW 8 has proved the said F.I.R. as Ext-4 and his signature thereon as Ext-4(1). This witness had further deposed that on 31.3.1999 in the evening while on patrol duty at Anurampara there was an encounter with the extremists in the course of which one extremist, i.e., the accused Milanjoy was arrested. PW 8 had further deposed that in the course of interrogation of the accused Milanjoy he had confessed that he along with the other accuseds had abducted Parendra Reang, murdered him and thereafter had burried the dead body somewhere at Tuithangbari inside the deep forest. According to PW 8, the accused Milanjoy had further informed that he would be able to identify the place where the dead body was burried. Accordingly PW 8 recorded his statement and informed PW 12, S.I. Sajal Sharma, to arrange for disinterring the dead body. PW 8 had further deposed that he had asked PW 12 to inform the wife of the deceased and to bring her along with him to identify the dead body. Thereafter, according to PW 8, he had arranged for an Executive Magistrate and a doctor to go to the spot besides a photographer and other connected persons. Thereafter, he came to learn that the dead body of Parendra Reang was disinterred at the instance of the accused Milanjoy. PW 9, Haradhan Bhowmik, is the Magistrate who had accompanied the police party which had gone to disinter the dead body of Parendra Reang. Thereafter, he came to learn that the dead body of Parendra Reang was disinterred at the instance of the accused Milanjoy. PW 9, Haradhan Bhowmik, is the Magistrate who had accompanied the police party which had gone to disinter the dead body of Parendra Reang. PW 9 had corroborated other witnesses with regard to the recovery of the dead body at the instance of the accused Milanjoy. In a cross-examination PW 9 had deposed that accused Milanjoy and PW 4, wife of the deceased, were talking inside the vehicle in a tribal language which he did not understand. PW 10, Dr. Sanjit Kumar Deb, is the doctor who had accompanied the police party. Not only had PW 10 corroborated other witnesses with regard to the recovery of the dead body at the instance of the accused Milanjoy, PW 10 had also deposed that in the vehicle in which he was travelling to the place where the dead body was stated to have been kept buried, apart from other police personnel, PW 4 and the accused Milanjoy were also travelling. This witness had deposed that PW 4 who was weeping continuously had asked the accused Milanjoy as to why they had killed her husband to which the accused had replied that they had done so as her husband was helping the police and not the extremists for which reason the extremists had sentenced her husband to death. PW 10 had specifically deposed that he could, understand the conversation since they were speaking in Kakabarak language which he familiar with. PW 10 who had conducted the post­mortem of the deceased at the spot had also deposed with regard to the injuries found by him. According to PW 10, death was on account of head injury and injuries on the chest involving vital organs leading to heamorrhage. He had also certified that the death had occurred 12/25 days prior to the date of post-mortem examination. PW 11, Chitta Reang is the first informant who had lodged the FIR Ext-4. According to this witness, sometime in the afternoon of 10.3.1999 when police had come to the house of Parendra Reang he had narrated the occurrence to PW 12 who recorded the same, read over the contents to him whereafter he had put his left thumb impression. PW 11, Chitta Reang is the first informant who had lodged the FIR Ext-4. According to this witness, sometime in the afternoon of 10.3.1999 when police had come to the house of Parendra Reang he had narrated the occurrence to PW 12 who recorded the same, read over the contents to him whereafter he had put his left thumb impression. PW 11 had corroborated PWs 1 and 4 in all material particulars with regard to the abduction of the deceased. PW 11 had deposed that out of the four persons who had abducted the deceased he could recognize Pashuram Reang and Niren Reang. PW 11 had also corroborated the other witnesses with regard to the recovery of the dead body. PW 12, Sajal Sharma, is the in-charge of Manpathar Police Outpost. According to this witness, on 10.3.1999 at about 8.45A.M. one Upendra Debnath of East Manu came to the Police Outpost and reported to him about the abduction of Parendra Reang. PW 12 had deposed that the aforesaid information was entered in the General Diary of the Police Station as G.D. Entry No. 204 dated 10.3.1999. According to this witness, on receipt of the information he along with the police party went to the place of occurrence and searched the neighbourhood to locate the abducted person. However, not being successful, at about 1330 hours, he returned to the house of Parendra Reang and in the said house PW 11, Chitta Reang, narrated the incident to him which a was recorded into writing by him. The aforesaid statement was received by him as the F.I.R. of the incident. He had identified the said document as Ext-4 and his hand-writing thereon as Ext-4(2). This witness in the course of his deposition had vividly described the receipt of wireless message from the Officer-in-charge of Santirbazar Police Station on 3.4.1999 asking him to attend the Police Station on the next day. According to this witness, he went to the Police Station in the morning of 4.4.1999 when PW 8 informed him that in the course of interrogation of the accused Milanjoy, who was arrested in connection with Santirbazar P. S. Case No. 24/99, the said accused had made a confession that he along with Pashuram, Baburam and Niren Reang had abducted and killed Parendra Reang and had hidden the dead body in a deep jungle. According to PW 12, the accused Milanjoy repeated the said facts before him which were recorded by him in writing whereafter the accused Milanjoy was arrested by him in connection with S.T.B. PS. Case No. 17/1999. This witness had further deposed that as directed by PW 8 he had made all arrangements for disinterring the dead body of Parendra Reang by requisitioning the services of a Magistrate, a doctor, a photographer and other connected persons. This witness had further stated that on 5.4.1999 along with the Magistrate, doctor, photographer, sweeper, PW 4 and other police personnel he had gone to Tuithangbari in five vehicles along with the accused Milanjoy. Thereafter, the accused Milanjoy had identified the place where the dead body was hurried which on being dug the dead body of Parendra Reang was recovered. 5. Having noticed the core facts which would be essential for the court to decide on the culpability or otherwise of the accused/appellant, we may now proceed to understand the rival contentions advanced by the learned counsel for the accused/appellant and the learned Public Prosecutor. Mr. A.C. Bhowmik, learned counsel appearing for the accused/appellant, has submitted that the involvement of the accused/appellant Milanjoy in the commission of the alleged offence under section 364 of the Indian Penal Code has not been established by the evidence and materials on record. According to Sri Bhowmik, learned counsel for the accused/. appellant, PWs 1, 4 and 11 had not named the accused/appellant as one of the four persons who had allegedly abducted the deceased. In this regard, Sri Bhowmik has submitted that though PW 4 had identified accused Milanjoy as being one of the four persons who had abducted the deceased, as such identification has taken place while the accused was in the custody of the police and that too at the Santirbazar Police Station, the court should not place any reliance on the same. Sri Bhowmik has further submitted that the alleged extra-judicial confession made by the accused Milanjoy to PW 4, as sought to be proved by the evidence of PW 4 and PW 10, is not admissible in evidence under section 26 of the Indian Evidence Act as the accused Milanjoy was at that time in police custody. Sri Bhowmik has further submitted that the alleged extra-judicial confession made by the accused Milanjoy to PW 4, as sought to be proved by the evidence of PW 4 and PW 10, is not admissible in evidence under section 26 of the Indian Evidence Act as the accused Milanjoy was at that time in police custody. Not only was the accused Milanjoy in Police custody at the time when he is alleged to have made the extra-judicial confession to PW 4, such confession was made in the presence of the police officers, argues Sri Bhowmik. According to Sri Bhowmik, the extra-judicial confession of the accused being the sole basis of the conviction under section 302, IPC and the same not being admissible in evidence, the conviction of the accused under section 302, IPC is wholly untenable. Insofar as the recovery of the dead body of deceased Parendra Reang is concerned, Sri Bhowmik, learned counsel for the accused/appellant, has submitted that the statement leading to such discovery alleged to have been made by the accused has not been proved and exhibited in the case. Sri Bhowmik, learned counsel for the accused/appellant, has argued that in such circumstances no part of the statement alleged to have been made by the accused will be admissible in evidence and the coral evidence tendered by the prosecution witnesses on the point of recovery of the dead body would be suspect and should be viewed by the court as being at the instance of the police as the alleged recovery was made while the accused was in police custody. Sri Bhowmik has also argued that no motive for the alleged criminal action attributed to the accused/appellant having been proved by the prosecution, the court should hold the said lapse as a vital lapse in the prosecution case. 6. Controverting the submissions advanced on behalf of the accused/appellant, Mr. Sarkar, learned Public Prosecutor, has submitted that there is nothing inherently incredible in the identification of the accused by PW 4 though such identification was made when the accused was in police custody. Sri Sarkar, learned Public Prosecutor, has submitted that PW 4 is the wife of the deceased who had seen the persons who had abducted her husband in broad day light. As per the evidence of PW 4 she had repeatedly requested the abductors not to take her husband away. Sri Sarkar, learned Public Prosecutor, has submitted that PW 4 is the wife of the deceased who had seen the persons who had abducted her husband in broad day light. As per the evidence of PW 4 she had repeatedly requested the abductors not to take her husband away. PW 4 is a direct victim of the abduction and the consequences emanating therefrom. In such circumstances, Sri Sarkar, learned Public Prosecutor, has contended that the recognition of the accused by PW 4 is wholly natural and that such identification, though made while the accused was in police custody, will not be open to any doubt. Sri Sarkar, learned Public Prosecutor, has further argued that in the present case the extra-judicial confession made by the accused/a appellant to PW 4 was in the language which apparently only PW 10, who was also a Reang, had understood. The conversation between the accused and the PW 4 had taken place in Kakabarak language which evidently the police officers did not understand. Even the Executive Magistrate (PW 5) did not understand the conversation inasmuch as, he had deposed that though the accused and PW 4 had talked he could not understand the conversation. In such circumstances, Sri Sarkar has argued that acceptance of the extra-judicial confession of the accused will not bring the present case within the mischief that has been sought to be prevented by section 26 of the Evidence Act and therefore the court should understand that the extra-judicial confession in the present case falls within an acceptable exception to the rule embodied in section 26 of the Indian Evidence Act. Insofar as the statement by the accused leading to the recovery of the dead body is concerned, the learned Public Prosecutor has submitted that the statement of the accused signed by him is available in the police records. The failure of the prosecution to prove and exhibit the said document is really a lapse on the part of the agency conducting the prosecution and the said fact should not come in the way of the court accepting the said statement made by the accused. The failure of the prosecution to prove and exhibit the said document is really a lapse on the part of the agency conducting the prosecution and the said fact should not come in the way of the court accepting the said statement made by the accused. Lastly, the learned Public Prosecutor has contended that even dehors proof of the statement made by the accused leading to the discovery, the recovery of the dead body as evidenced by the prosecution witnesses is wholly acceptable inasmuch as the same was made in the presence of a Magistrate and the doctor who had deposed clearly that it is the accused who had led the party to the place where the dead body was hurried and from where the dead body was recovered. In such circumstances, according to Sri Sarkar, learned Public Prosecutor, the oral evidence on record on the point of discovery is clear, cogent and acceptable in law and should accordingly be acted upon by the court. g 7. Having noticed the core of the evidence brought on record by the prosecution in support of its case and the arguments and counter arguments advanced on behalf of the contesting parties we may now proceed to analyse whether on the evidence and other materials on record the accused/appellant is liable to be convicted under the relevant provisions of law as noticed by us. The culpability of the accused/appellant for commission of the offence under section 364, IPC may be taken up at the first instance. PWs 1, 4 and 11 are the relevant witnesses who have deposed with regard to the abduction of Parendra Reang on the date of occurrence. All the aforesaid three witnesses have stated that on 10.3.1999 at about 8 in the morning four persons had suddenly come to the house of the deceased and had abducted him at gun point after assaulting him. The three witnesses examined by the prosecution had named Pashuram Reang and Niren Reang but had not named the accused/appellant as one of the four persons who had abducted the deceased. However, PW 4, the wife of the deceased had identified the accused/appellant as being one of the aforesaid four persons who had abducted the deceased. Such identification was made by PW 4 at Santirbazar Police Station after the accused/appellant was arrested in connection with STB. P.S. Case No. 24/1999 and later in connection with STB. However, PW 4, the wife of the deceased had identified the accused/appellant as being one of the aforesaid four persons who had abducted the deceased. Such identification was made by PW 4 at Santirbazar Police Station after the accused/appellant was arrested in connection with STB. P.S. Case No. 24/1999 and later in connection with STB. P.S. Case No. 17/1999. Though an argument has been advanced by Sri Bhowmik, learned counsel for the accused/appellant, that such identification made in the Police Station when the accused was in police custody and without holding a test identification parade has no acceptable value; no law has been pointed out as none exists for the proposition that an identification of an accused while such accused is in police custody cannot be legally accepted. The holding of a test identification parade is not a mandatory requirement of law and the law does not require that an identification, which otherwise inspires the confidence of the court, should be discarded merely because no test identification parade was held. In the present case, the evidence of PWs 1, 4 and 11 makes it clear that at the time when the four abductors had come to the house of the deceased, PW 4 had made repeated requests to the abductors not to take away her husband. The evidence on record shows that the group of four persons who had carried out the abduction had assaulted the deceased and had also fired a bullet from a pistol before taking away the deceased from his house at gun point. PW 4 being the wife of the deceased can, in the ordinary course of events, be expected to remember the faces of the other two abductors whom she did not/could not name. In such circumstances, the recognition of the accused appellant in the Police Station by PW 4 appears to be wholly natural and spontaneous. That apart, PW 4 had identified the accused/appellant for the second time in court. Therefore, having regard to the evidence on record and the normal course of events in human life, the court finds no good reason to discard or disbelieve the identification of the accused/appellant by PW 4. This court therefore unhesitatingly is of the view that the accused/appellant Milanjoy was one of the four persons who had abducted the deceased from his house. This court therefore unhesitatingly is of the view that the accused/appellant Milanjoy was one of the four persons who had abducted the deceased from his house. The assault committed on the victim use of a firearms and abduction at gun point, facts established by the evidence on records leave the court satisfied that the charge under section 364, IPC is fully proved against the accused/appellant and he is liable to be convicted under the aforesaid section of law. 8. This would bring the court to a consideration of the charge under section 302, IPC as against the accused/appellant. The extra-judicial confession alleged to have been made by the accused/appellant to PW 4 appears to be the primary, if not the sole, basis for the conviction of the accused/appellant under section 302, IPC. Section 25 of the Evidence Act makes a confession to a police Officer inadmissible in law. In the same manner, under section 26 of the Evidence Act, a confession of an accused while in police custody is equally not admissible in law. 9. In the present case, the alleged extra-judicial confession made by the accused/appellant was so made while the accused/appellant was in police custody. Section 26 of the Evidence Act, therefore, would bar the admissibility of the extra-judicial confession alleged to have been made by the accused/appellant. The argument advanced by the learned Public Prosecutor is that as the said extra-judicial confession was made by the accused/appellant to PW 4 in Kakabarak language which was not understood by the police officer the court should carve out an exception to section 26 of the Evidence Act. Sections 25 and 26 of the Evidence Act engrafts a principle of lack of legal acceptability of an incriminating statement made by the accused while in police custody. It has withstood the test of time. Sections 25 and 26 of the Evidence Act provides a safeguard against the possible mischief of an accused being influenced or coerced into make an inculpatory statement. The wholesome principle engrafted in the aforesaid two provisions of the Evidence Act cannot be judicially departed from by carving out exceptions when no such exception has been provided in the statute. Sections 25 and 26 of the Evidence Act provides a safeguard against the possible mischief of an accused being influenced or coerced into make an inculpatory statement. The wholesome principle engrafted in the aforesaid two provisions of the Evidence Act cannot be judicially departed from by carving out exceptions when no such exception has been provided in the statute. Merely because the alleged extra-judicial confession in the present case was made by the accused/appellant in a language which the police officers are stated not to be familiar with, it cannot be said that the extra-judicial confession of the accused/appellant though made in police custody should be accepted by the court. Moreover, according to PW 10 (doctor), the said extra-judicial confession was made by the accused in the vehicle where a police officer one S.I. S.S. Kar was also present. The said police officer has not been examined. PW 12, the Investigating Officer, S.I. S. Sharma, who was leading the police party that had gone to make the discovery has, however, not deposed that he or any member of the police party was not familiar with the Kakabarak language. That apart, there is a vital contradiction in the evidence of PW 4 and PW 10 with regard to the place where the alleged extra-judicial confession was made. According to PW 4, the accused/appellant had informed her of the reasons for the abduction and killing of her husband by the accused/appellant and other accused in the Santirbazar Police Station whereas according to PW 10 the said confession was made while the accused/appellant was in the vehicle along with PW 4 and others and while proceeding to the place from where the dead body was recovered. For all the aforesaid reasons, this court is of the view that the alleged extra-judicial confession made by the accused/appellant to PW 4 should not have the court's acceptance. 10. This will bring the court to a consideration of the question of acceptability of the evidence with regard to discovery of the dead body of the deceased at the instance of the accused/appellant. Section 27 of the Evidence Act provides that if discovery of a fact is made pursuant to a statement made by an accused in police custody, that part of the statement leading to discovery and the discovery of the fact may be admissible in evidence. Section 27 of the Evidence Act provides that if discovery of a fact is made pursuant to a statement made by an accused in police custody, that part of the statement leading to discovery and the discovery of the fact may be admissible in evidence. This is why section 27 of the Evidence Act has been judicially construed as an exception to the rule laid down by sections 25 and 26 of the Evidence Act. However, for application of the rule laid down in section 27 it is necessary that the statement of the accused as recorded and bearing his signature must be brought into evidence and such statement must be recorded as far as possible in the manner in which it has been narrated by the accused. In the present case, the prosecution contends that the accused/appellant had made a statement to the effect that he along with the other accuseds had abducted the deceased, killed him and thereafter had hurried him at a particular place and that the accused was willing to point out the place where the deceased was hurried. The prosecution did not send the accused for recording of a confessional statement by the Magistrate under section 164, Cr.PC, nor did the prosecution prove and exhibit the statement alleged to have been made by the accused before the police so as to make the relevant part of the said statement leading to & discovery of the dead body admissible in evidence under section 27. The statement of the accused leading to the alleged recovery of the dead body as also the fact that the accused had made a statement on the basis of which the dead body of the deceased was discovered, therefore, will not be admissible in evidence. It is, however, always open for the prosecution to prove the discovery of a fact independently of section 27 of the Evidence Act. Section 27 only makes the statement of an accused leading to discovery of a fact, which otherwise would not have been admissible under section 26, admissible in evidence. The fact relating to the discovery made will have to be proved by the prosecution by leading oral evidence. The statement of the accused if proved under section 27, would only fortify the case of the prosecution with regard to discovery. The fact relating to the discovery made will have to be proved by the prosecution by leading oral evidence. The statement of the accused if proved under section 27, would only fortify the case of the prosecution with regard to discovery. This being the position in law the prosecution may choose not to rely on the statement made by an accused leading to discovery or on its failure to prove the same, may still try to prove the events surrounding the discovery by relying on the oral evidence adduced. Such oral evidence will have to be assessed by the court on its own intrinsic merit. This court, therefore, will have to consider the acceptability of the prosecution evidence adduced on the aforesaid score in the present case The oral evidence on the point of recovery/discovery has already been noted. PWs 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 have deposed with regard to the discovery of the dead body at the instance of the accused/appellant in more or less a similar way. All the said witnesses have deposed that on 5.4.1999 a police party accompanied by a doctor, a Magistrate, a photographer and PW 4 and others along with the accused/appellant had gone to Tuithangbari in 4/5 vehicles whereafter they had gone deep inside a forest on foot being led by the accused/appellant. The said witnesses have also deposed that a particular spot/place in the forest was pointed out by the accused/appellant which on being dug the dead body was recovered. Merely because the alleged statement made by the accused/appellant before the police that he along with the other accuseds had killed the deceased and had burried the dead body in the forest which he can point out is not acceptable for the reasons already mentioned, the consistent oral testimony of the prosecution witnesses, as noticed above, cannot be brushed aside by the court. The Court, therefore, finds no good reason not to accept the oral testimony of the prosecution witnesses to the effect that the dead body of the deceased was recovered from a place pointed out by the accused/appellant. However, acceptance of the oral evidence on the point of discovery, by itself, will not be sufficient to implicate the accused/appellant for the offence under section 302, IPC. It is, at best, an incriminating circumstance. However, acceptance of the oral evidence on the point of discovery, by itself, will not be sufficient to implicate the accused/appellant for the offence under section 302, IPC. It is, at best, an incriminating circumstance. The said circumstance, in conjunction with the other circumstances appearing against the accused/appellant, will have to be considered to determine whether on the basis of the circumstances appearing against the accused/appellant, taken together, the offence under section 302, IPC is made out. This court has already held that the accused/appellant was one of the four persons who had abducted the deceased. The oral evidence with regard to the discovery of the dead body at the instance of the accused/appellant has also been found to be acceptable. While there may appear to be a gap in between what had happened after the abduction and before the recovery of the dead body, it must be remembered that once the case of the prosecution with regard to the abduction of the deceased has been found acceptable the responsibility for explaining what had happened thereafter must necessarily be on the accused. In the present case the defence version is one of total denial. The said defence has already been disbelieved insofar as the offence under section 364, IPC is concerned. Once the deceased is held to have been in the custody of the accused and subsequently his dead body is recovered, on a reasonable construction of the aforesaid two circumstances, the court must hold that the accused would be responsible for what had happened to the deceased while in their custody. Viewed from the aforesaid perspective the two circumstances reasonably and properly construed, in our considered view, points to no other hypothesis except the guilt of the accused/appellant. Authority for the view taken is to be found in the judgment of the Apex Court in State of West Bengal v. Mir Md. Omar and Others, (2000) 8 SCC 382 . We, therefore, hold the accused/appellant liable for commission of the offence under section 302, IPC. On the same reasoning the offence alleged against the accused/appellant under section 201, IPC must also be held to be proved. 11. The accused/appellant has also been convicted for the offence under section 27 of the Arms Act. We, therefore, hold the accused/appellant liable for commission of the offence under section 302, IPC. On the same reasoning the offence alleged against the accused/appellant under section 201, IPC must also be held to be proved. 11. The accused/appellant has also been convicted for the offence under section 27 of the Arms Act. The only evidence of use of a firearm as evident from the testimony of PWs 3, 4 and 11 is at the time of the abduction when one shot from a pistol/revolver is stated to have been fired and the deceased was abducted at gun point. Who amongst the four persons who had abducted the deceased had used the firearm is not disclosed. The precise role of the accused/appellant with regard to the use of the firearm is not forthcoming. On the state of the prosecution evidence as available on record we find it difficult to uphold the conviction recorded against the accused/appellant under section 27 of the Arms Act. 12. In the light of the foregoing discussions while holding the accused/appellant to be guilty of the offence under sections 364, 302 and 201 of the IPC we take the view that the offence under section 27 of the Arms Act is not established. 13. The last question that needs to be addressed by us is the sentence that has to be imposed on the accused/appellant following affirmation of the conviction as recorded by us above. In this regard, we have noticed that the accused/appellant has been sentenced to R.I. for life for commission of offence under section 364, IPC. He has also been sentenced to undergo R.I. for life following his conviction under section 302, IPC. Both the sentences have been directed to run consecutively whereas the sentence imposed under section 201, I.P.C. and section 27 of the Arms Act have been directed to run concurrently. We have noticed that section 364, IPC prescribes two different kinds of punishment, i.e., R.I. for life or R.I. for a maximum period of 10 years. In the absence of any special reasons or extraordinary features of the case we are of the view that a sentence of 10 years' R.I. for the offence under section 364, IPC will adequately meet the ends of justice. In the absence of any special reasons or extraordinary features of the case we are of the view that a sentence of 10 years' R.I. for the offence under section 364, IPC will adequately meet the ends of justice. We are also of the view that there is no sufficient justification to direct the sentences imposed under sections 364 and 302, IPC to run consecutively. We, therefore, modify the sentence imposed on the accused/appellant to one of 10 years' R.I. under section 364, IPC and while maintaining the sentences under sections 302 and 201, IPC we direct that all the sentences shall run concurrently. 14. In view of the above, this appeal is partly allowed to the extent indicated above.