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2011 DIGILAW 743 (JHR)

State of Jharkhand v. Swapan Kumar Jha

2011-07-29

D.N.UPADHYAY, R.K.MERATHIA

body2011
JUDGMENT: D.N.Upadhyay, J. Heard the learned counsel for the appellants and the learned Counsel for the State in all these cases. Swapan Kumar Jha,Appellant in Criminal Appeal 669 of 2010, Amarendra Kumar Sharma @ Vickey, Appellant in Criminal Appeal No. 905 of 2010 and Rockey Dutta, Appellant in Criminal Appeal No. 779 of 2010 have been referred to hereinafter as appellants no. 1, 2 and 3 respectively. These appeals have been directed against the judgment of conviction and sentence dated 1.7.2010 and 7.7.2010 passed by the Addl. Sessions Judge, FTC III, Dhanbad, in Sessions Trial No.88 of 2009 whereby all the appellants have been held guilty for the offences punishable under sections 364A/302/201/34 of the Indian Penal Code and accordingly appellants no.2 and 3 have been sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/-(rupees ten thousand) each and in default of payment, to undergo further imprisonment for six months. Appellant No. 1 Swapan Kumar Jha has been awarded death sentence for the offence punishable under section 364A/302 IPC subject to confirmation of the order of conviction and sentence by the High Court. Besides above, all the three appellants have been further sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 10,000/-each under section 201 IPC and in default of payment of the fine, they shall suffer further imprisonment for six months. 2. Prosecution case, as it appears from the written report lodged by Sri Sudhanshu Shekhar Ojha is that on 28.9.2008 at about 4.30 P.M after receiving a phone call, Sumit (deceased) son of the informant after informing his mother that he would be coming back within half an hour, left home, but did not return. The informant and other family members got worried and made a search for Sumit, but of no avail. With regard to the missing of Sumit, information was given to the Police Station on 29.9.2008 after which Station Diary Entry was made at Jharia Police Station. It is further disclosed that on 1.10.2008 in the morning, the informant on his land-line phone No. 2460618 received a call and the unknown caller demanded ransom from the informant. The aforesaid call made the informant under belief that his son Sumit has been kidnapped by some person. It is further disclosed that on 1.10.2008 in the morning, the informant on his land-line phone No. 2460618 received a call and the unknown caller demanded ransom from the informant. The aforesaid call made the informant under belief that his son Sumit has been kidnapped by some person. Thereafter, a written report was lodged on 1.10.2008 at Jharia Police Station on the basis of which Jharia P.S Case No. 280 of 2008 under sections 364A of the Indian Penal Code was registered against the holder of Mobile No. 9798148773. During investigation, dead body of Sumit was recovered after which Sections 302/201/34 IPC had also been added on 23.10.2008. During investigation, involvement of these appellants in the alleged kidnapping and murder of Sumit Kumar Ojha alias Govind was surfaced whereafter Swapan Kumar Jha and Amarendra Kumar Sharma @ Vickky were apprehended and they made their confessional statement disclosing therein that they had hired an Indica Car No. JH 09D 6666 and made a plan to kidnap Gautam Kumar Ojha (brother of the deceased) who was studying at Kolkata. Thereafter, all the three appellants went Kolkata on 24.9.2008 and stayed in a Hotel. The plan of kidnapping for ransom was mainly hatched out by Swapan Kumar Jha and initially he made target to Gautam who is none else, but the maternal cousin of Swapan Kumar Jha and accordingly Gautam was taken into contact. In course of wandering with the appellants, Gautam Kumar Ojha sent SMS to his room-mate informing that he is in the company of the accused persons. Considering the aforesaid aspect, the appellants dropped their plan to kidnap Gautam Kumar Ojha and returned to Jharia (Dhanbad) and again targeted Sumit Kumar @ Govind who was younger brother of Gautam. On some pretext, Sumit was called by the appellants whereafter, Sumit met with them near Children Park, Jharia and from there, he boarded in the Indica Car occupied by appellants Swapan Kumar Jha and Vickky Sharma besides the driver of the said Car. Sumit was taken by them to Khalsa Hotel, Govindpur and they were also followed by the friends of the appellants who were in a Bolero Car. All of them wanted to consume liquor in the hotel, but Sumit did not agree to consume liquor in the hotel, as a result, they purchased a wine/whiskey bottle and proceeded towards Giridih. Sumit was taken by them to Khalsa Hotel, Govindpur and they were also followed by the friends of the appellants who were in a Bolero Car. All of them wanted to consume liquor in the hotel, but Sumit did not agree to consume liquor in the hotel, as a result, they purchased a wine/whiskey bottle and proceeded towards Giridih. On the way to Giridih, all of them consumed liquor and Sumit too was forced to have. They went to the house of Vickky Sharma appellant no.2, where tea mixed with sleeping drug was administered to Sumit after which he slept and was removed by the companion of the appellants towards Kolkata. Thereafter the appellants had made a call demanding Rs. 20,000,00/-( rupees twenty lakhs) from the informant against release of Sumit, but Appellants 1 and 2 were apprehended by the Police and were forwarded to Jail custody. 3. The appellants were taken on police remand after which again confession of appellant no. 1 was recorded on the basis of which the dead body of Sumit @ Govind was recovered, in the presence of an Executive Magistrate, the witnesses and the public, from a graveyard situated at Bhandaridih, Dist. Giridih. The process of digging out the dead body was also videographed. At the conclusion of the investigation, charge sheet against these appellants was submitted and they were put on trial. 4. The appellants were charged for offences punishable under sections 364A/302/201/34 of the Indian Penal Code to which they denied. 5. The prosecution had examined altogether 14 witnesses to substantiate the charges, whereas the appellants had examined Dr. C.K. Sahi as DW1 in their defence. 6. Sudhansu Shekhar Ojha happens to be the father of the deceased and also the informant and he has been examined as PW9. He has supported the prosecution case as made out by him in the written report, which has been proved as Ext.3. He (PW9) has deposed that on the pointing out of appellants 1 and 2, the dead body of Sumit was dug out from a Kabristan situated at Bhandaridih, Giridih, on 19.10.2008 in presence of the executive magistrate and witnesses and the dead body was identified by him as that of his son Sumit. He (PW9) has deposed that on the pointing out of appellants 1 and 2, the dead body of Sumit was dug out from a Kabristan situated at Bhandaridih, Giridih, on 19.10.2008 in presence of the executive magistrate and witnesses and the dead body was identified by him as that of his son Sumit. He has also supported the fact that the appellants had been to Kolkata and they contacted Gautam Kumar Ojha and moved with him in a white Indica Car Since Gautam Kumar Ojha had informed his room-mate about his movement with the appellants, he was dropped and the appellants changed their plan to kidnap Gautam, and returned to Bokaro. This witness had identified the appellants and disclosed that appellant no. 1 is the son of his sister. Gautam Kumar Ojha PW6 has confirmed this fact that the appellants had been to Kolkata and he was contacted by them. They moved together on a white Indica Car, but later, he was left by the accused appellants. When Gautam learnt about the arrest of appellant no.1 and his companion and also about the missing of his brother Sumit, he had disclosed that the appellants had gone to Kolkata and they met him. Appellant no.1 Swapan Kumar Jha had introduced Vicky Sharma and Rockey Dutta (appellants 2 and 3) who were accompanying him. 7 PW4 Muktipado Sen, and PW5 Shankar Sharma to whom Sumit was known had seen Sumit boarding in a white Indica Car on 28.09.2008 at about 4.30 p.m, near Children Park and the said vehicle was occupied by two persons, besides the driver of the car. When they learnt about the kidnapping and murder of Sumit, they had disclosed this fact to the appellants and also to the informant and his family members. 8 Ashok Kumar Ojha PW1 and Sridhar Ojha PW3 are uncles of the deceased and they have supported the prosecution case as disclosed to them by the informant PW9 and his wife. Both of them have stated that on 28.9.2008 in the evening at about 4.30 p.m. Sumit alias Govind after receiving a phone call left home, but did not return. After two days, ransom was demanded by the miscreants and after the arrest of appellants 1 and 2, they learnt that Govind was kidnapped by them and he was killed . Both of them have stated that on 28.9.2008 in the evening at about 4.30 p.m. Sumit alias Govind after receiving a phone call left home, but did not return. After two days, ransom was demanded by the miscreants and after the arrest of appellants 1 and 2, they learnt that Govind was kidnapped by them and he was killed . The dead body of Sumit alias Govind was recovered from the graveyard and it was identified by the family members. Both the witnesses (PW1 and 3) are hearsay witnesses and they had reproduced the details regarding the incident heard by them. Sabita Ojha PW8 happens to be the mother of the deceased Sumit and she has stated that on 28.9.2008 while she was at home, she had received a phone call on the land line. The caller did not disclose his identity and said that he is a friend of Govind and requested to hand over the receiver to Sumit. Conceding the request, she called her son Sumit alias Govind, who attended the call and then told this witness that he would be coming back within half an hour and left home. When Sumit did not return till late evening, the matter was brought to the notice of his father. On the next morning, missing report of Sumit was given to the Police. Two / three days thereafter, they received another phone call by which a sum of rupees twenty lakhs was demanded against release of Sumit and then the written report was lodged. The dead body of Sumit was recovered from the graveyard after about 20 days of the occurrence, she had identified the deadbody of her son Sumit at the post mortem house. Further story that Sumit was boarded in the white Indica Car near Children Park is also supported by this PW8. 9. Gautam Kumar Ojha PW6 is the brother of the deceased and he has stated that he was informed about the missing of Sumit by one of his friends whereafter he reached home on 29.9.2008. Since the appellants had been to Kolkata and he moved with them on the white Indica Car, he made a call to the appellant no.1 and informed about the missing of Sumit. It was replied by appellant no.1 that he is now at Gaya and this conversation took place on 3.10.2008. Since the appellants had been to Kolkata and he moved with them on the white Indica Car, he made a call to the appellant no.1 and informed about the missing of Sumit. It was replied by appellant no.1 that he is now at Gaya and this conversation took place on 3.10.2008. After the arrest of appellants no.1 and 2, he disclosed to his parent that appellants 1, 2 and 3 had been to Kolkata and appellant no.1 made a call to him and said that he had purchased a car and invited him for roaming with them in the car and he joined the company. When this witness wanted to inform about his movement to his room-mate, appellant no. 1 restrained him from doing so, but getting an opportunity, he had informed his room-mate by sending SMS. When this fact came to the knowledge of the appellants, they dropped him and returned back to Bokaro. This witness has also shown his presumption that the appellants might have a plan to kidnap him, but they could not succeed, because he informed his room-mate about his movement with the appellants. According to this witness, his presumption turned into truth when appellants 1 and 2 were arrested with the charge of kidnapping Sumit. This witness has also supported the recovery of the dead body of Sumit Kumar Ojha alias Govind and he has also claimed to have identified the dead body of his brother. Further, all the accused appellants were identified by him and he has disclosed the name of the driver of the said Indica Car as Dulal Mahto. Hiralal Mahto PW7 and Md. Imtiaz Khan PW14 are formal witnesses. PW7 has proved the seizure of the vehicle and he has stated that the Indica car No. JH 09D 6666 was seized in connection with this case and the said vehicle belongs to Sandhya Nandkuliyar. At the time of seizure of the vehicle, he could learn about the kidnapping of a boy. PW14 has produced the clothes of the deceased which were collected from the dead body and the said clothes have been marked as material Ext. 2. Sanjeev Kumar Das, judicial Magistrate had recorded the statement of the driver, Dulal Mahto PW2 under section 164 Cr.P.C. Mahboob Alam PW11 is the Secretary of Ishlahul Mominin Anjuman, Bhandaridih. PW14 has produced the clothes of the deceased which were collected from the dead body and the said clothes have been marked as material Ext. 2. Sanjeev Kumar Das, judicial Magistrate had recorded the statement of the driver, Dulal Mahto PW2 under section 164 Cr.P.C. Mahboob Alam PW11 is the Secretary of Ishlahul Mominin Anjuman, Bhandaridih. According to his deposition, on19.10.2008 in the afternoon, the dead body of a male was dug out from Bhandaridih graveyard. Before digging out the dead body from the graveyard, permission from the local administration was sought for. At the time of recovery of the dead body, besides him, Govt. officials, police and many people were present there. The wearing apparels of the deceased were explained by him. The star witness of the prosecution is Dulal Mahto PW2 who was the driver of the said white Indica Car No. JH 09D 6666. According to his statement, on 23.8.2008, at the request of the appellants no. 1, the aforesaid vehicle was given to him on rent. He was directed to come to Dhanbad and from Bank More, Dhanbad, he took appellant no. 1, 2 and 3 to Koklata. The appellants stayed in a hotel at Kolkata and contacted Gautam ( brother of Sumit). All the appellants moved with Guatam hither and thither on that car. Thereafter, Gautam was left at Kolkata and they returned back to Bokaro. Again on 27.9.2008, they went to Giridih via Dhanbad. They went to the house of appellant no, 2 and spent that very night at his house. On the following day, at about 2/3 P.M. they came back to Jharia and made a call to Sumit and asked him to come near Children Park. Sumit was picked up by appellant no. 1 and at that time, he was accompanied by appellant no. 2. They went to a coffee house and after having snacks, again proceeded towards Khalsa Hotel. They wanted to have liquor, but Sumit did not agree and therefore they purchased liquor from the shop and proceeded towards Giridih. On the way to Giridih, they consumed liquor and Sumit was also forced to have. They went to the house of appellant no. 2 where appellant no. 3 also reached. On the next morning, appellants 1 to 3, who were standing out side the house, were talking that “15/20 lakh firauti mil jayega”. After seeing this witness, they became silent. On the way to Giridih, they consumed liquor and Sumit was also forced to have. They went to the house of appellant no. 2 where appellant no. 3 also reached. On the next morning, appellants 1 to 3, who were standing out side the house, were talking that “15/20 lakh firauti mil jayega”. After seeing this witness, they became silent. When he asked about Sumit, they said that he would be dropped by them and thereafter Rs.4000/-( four thousand ) against the hire of the car was paid by appellant no. 3 to this witness (PW2) and after that, he returned to Bokaro. After two days, he learnt about the kidnapping of Sumit and then he had reasons to believe that Sumit was kidnapped by these appellants. He (PW2) further says that his statement was also recorded by the Magistrate and he has proved signature on that statement marked Exts. 1, 1/1 and 1/2. He had identified all the appellants who were present in court at the time of his deposition. In his cross examination, he has admitted that he had already informed the owner of the vehicle that the vehicle was hired by the appellants for going to Kolkata. Initially, he was not knowing either Gautam or Sumit, but in course of moving with the appellants and after reporting of the occurrence, he learnt about them. He had not produced any receipt with regard to filling of fuel in the vehicle. This witness has answered all the questions put to him in his cross examination. 10. Dr. Vineet P.Tigga PW10 had conducted autopsy on the dead body of Sumit on 19.10.2008 at PMCH, Dhanbad, at 9.00 p.m. in artificial light, after receiving instructions from the local administration. The following facts were noticed by PW10 during post mortem examination : 1. Lacerated wound 2” x 1”x bone deep, just below the right angle of mouth where lower jaw was found fractured; 2. Closed closed fracture of lower jaw was also found on the left side; On dissection : (a) Echymosis was found underneath scalp in an area 2”x 1 ½” on the left side of frontal bone; (b) 3”x1” on the right side occipital parietal region; Brain was found liquified. Echymosis was also found in subcutaneous tissues of both sides in front of neck. Greater cornova of Hyoid bone was found fractured on the right side. Echymosis was also found in subcutaneous tissues of both sides in front of neck. Greater cornova of Hyoid bone was found fractured on the right side. Heart was empty, flabby and in a softening state. Stomach contained 50 grams of pasty food emitting alcoholic smell. Bladder was empty, spleen liquefied. All other organs were in liquefying state. Appendix was found missing. Portion of heart, lungs, liver spleen, one whole dissected kidney along with stomach with its contents preserved, sealed, labeled and handed over to the constable to he sent for chemical analysis. Time elapsed since death 20 to 25 days. Cause of death – death due to asphyxia as a result of throttling. Viscera has been preserved for chemical analysis. The post mortem report has been marked as Ext. 4. He further stated that the FSL report indicates that alluminium phosfide was detected in the portion of viscera. Post mortem report has been proved as Ext. 4. The report received from the Forensic Science Laboratory was indicative of the fact that alluminium phosfide was detected. 11. Sia Saran Prasad who is the investigating officer was examined as PW13. He has proved formal FIR, seizure list and other documents as per the Exhibit list and deposed that station Diary Entry 749 dated 29.9.2008 was made on the basis of the information lodged by the informant PW9 in respect of missing of his son Sumit alias Govind. On 1.10.2008, the written report was lodged he took charge of the investigation and recorded statements of the witnesses and subsequent statement of the informant PW9. The first place of occurrence from where Sumit (deceased) boarded in Indica Car has been described in paragraph 8 of his deposition and the place is a road near Children Park, Jharia. In course of investigation, mobile used by the appellants were put on track and after getting their locations, house of appellant no. 2 was raided, whereafter appellants 1 and 2 were arrested. Both of them had given their confessional statements which have been proved as Exts. 8 and 9.. Two mobile sets were also seized and seizure list happens to be Ext. 10. 2 was raided, whereafter appellants 1 and 2 were arrested. Both of them had given their confessional statements which have been proved as Exts. 8 and 9.. Two mobile sets were also seized and seizure list happens to be Ext. 10. The investigating officer PW13 had also visited Golden Deer Guest House, Kolkata, and detected that on 24.9.2008 in the afternoon, the appellants had taken room No. 204 and the waiter Ghanshyam Behra had confirmed that the appellants had come on a white car No. JH 09D 6666. The aforesaid car was seized by the investigating officer from the house of Subodh Kumar Nandkuliyar and the seizure list (Ext 10/1) was prepared. The apprehended accused appellants were produced before the Court and they were taken on police remand after which the dead body of Sumit alias Govind was recovered on 19.10.2008 from the graveyard situated at Bhandaridih, Giridih. Confessional statement of appellant no.1 was again recorded on 18.10.2008 which has been proved at Ext. 11. This witness ( Investigating Officer ) has described in detail about the graveyard and its location from where the dead body of Sumit was recovered. The Call Detail Report (CDR) of the mobile used by the appellants were obtained and after concluding the investigation, chargesheet against all the three appellants was submitted under sections 302/364A/201/34 IPC and in his examination, he admits that no DNA test was done and it is incorrect to say that they had recovered only a skeleton. He admits that he did not examine the person in whose name those SIM Cards which were used by the appellants, were issued. 12. The appellants had also examined Dr. D.K. Sahi as DW 1 in their defence. DW1 has proved the report by which he referred the dead body to be examined by the medical board of PMCH Dhanbad, because the dead body was in an advanced stage of decomposition. The report has been proved as Ext. 1 and signatures of the doctor (DW1) appearing on that report has been proved as Exts. A/1, A/2 and A/3. According to him, the dead body was not in a state of identification. Skin and muscles were liquefied and it was not possible to find out soft tissues injuries. In his cross examination, he admits that in the forwarding report, the name of the deceased was mentioned as Sumit alias Govind. 13. A/1, A/2 and A/3. According to him, the dead body was not in a state of identification. Skin and muscles were liquefied and it was not possible to find out soft tissues injuries. In his cross examination, he admits that in the forwarding report, the name of the deceased was mentioned as Sumit alias Govind. 13. The appellants had mainly taken the following plea : (i) There is no direct evidence against the appellants and the case is based on circumstantial evidence. The chain of circumstantial evidence is incomplete and the same is not leading towards the guilt of the appellants, excluding all hypotheses of their innocence. (ii) The dead body was highly decomposed and major portions of the body were liquified. It was not in a position to be identified, which is evident from the evidence of DW1. (iii) The ingredients of section 364 A of the Indian Penal Code are not attracted and the prosecution has failed to adduce evidence that any of these appellants had put forth any demand for ransom. (iv) The prosecution has brought on record two confessional statements of the appellant no.1 recorded at different intervals and therefore it could not be said that the confessional statement was leading to discovery consequent upon which the dead body of Sumit was recovered and the confessional statement is not admissible in evidence even after application of Section 27 of the Evidence Act. (v) The statement appearing in the alleged confession, if relied upon, gives a different story which stood uninvestigated. The cause of death as appearing from the post mortem report was never confessed by any of the appellant. No reliance can be placed on the evidence of PW2, because his conduct does not appear to be acceptable. (vi) The investigation is not proper; many laches are apparent and on the basis of such poor investigation, capital punishment could not be awarded; (vii) The statement of material witnesses are contradictory to each other on material points; (viii) On behalf of the appellant no. 3, specific plea has been taken that he was not present with the other appellants at the alleged place and time of kidnapping of Sumit; (ix) On behalf of appellant 1, point has been raised that on the basis of the same evidence, remaining two appellants have been awarded imprisonment for life, but he has been inflicted with capital punishment. 3, specific plea has been taken that he was not present with the other appellants at the alleged place and time of kidnapping of Sumit; (ix) On behalf of appellant 1, point has been raised that on the basis of the same evidence, remaining two appellants have been awarded imprisonment for life, but he has been inflicted with capital punishment. Learned Sessions Judge has not considered the aggravating and mitigating circumstances appearing on record and the case of appellant 1 has wrongly been framed as the rarest of the rare case. 14. On the other hand, the prosecution has relied upon several circumstances which are as follows : (i) the appellants had been to Kolkata and they invited Gautam Kumar Ojha (PW6) to ride on the car on the pretext that appellant no. 1 had purchased the car. Accordingly, Gautam Kumar Ojha accompanied the appellants and moved with them on the said white Indica car, but the information sent by him to his friend(s) with regard to his movement cautioned the appellants and they dropped their plan to kidnap Gautam Kumar and returned back to Bokaro. (ii) The appellants thereafter made target to the younger brother Sumit Kumar Ojha alias Govind and enticed him to accompany them and accordingly on 28.9.2008 at about 4.30 p.m, Sumit alias Govind (deceased) went in their company and boarded the car near children park, Jharia. Sumit was seen boarding in the car by Pws 4 and 5. (iii) Parents of the deceased Sumit received a call for ransom against release of Sumit on 1.10.2008 and the miscreants had demanded rupees twenty lakhs. (iv) During investigation, mobile phone no. from which calls were received were put on track and the Police had succeeded to apprehend the appellants 1 and 2. During investigation, the Investigating Officer had collected the call details report (CDR) and seized the mobile phones with SIM cards used, from possession of the appellants. (v) On the basis of the confessional statements, dead body of Sumit alias Govind was recovered from the graveyard situated at Bhandaridih (Giridih). (vi) The car used for committing the offence was seized and the statement of the owner as well as the driver was recorded. . (vii) The post mortem report is indicative of the fact that Sumit was assaulted, sustained injuries on his face and died due to throttling. (vi) The car used for committing the offence was seized and the statement of the owner as well as the driver was recorded. . (vii) The post mortem report is indicative of the fact that Sumit was assaulted, sustained injuries on his face and died due to throttling. The viscera report has proved the presence of smell of alcohol and poisonous substance. 15. After having heard both sides, we have examined the evidence on record and perused the impugned judgment. No doubt, direct evidence against the appellants is not apparent and therefore, we have to scrutinize the circumstantial evidence available on the record. In the entire episode, use of a white Indica car by the appellants has come in light. It reveals from the record and also from the evidence of PW2 that the While Indica Car No.JH-09D 6666 which was hired by the appellants had been seized. Dulal Mahto PW2 was the driver of the said car. According to his evidence, on 23.9.2008, the aforesaid car was given under the control of appellants 1 to 3 at Bank More, Dhanbad. On the next day, the appellants went to Kolkata, booked a room in a hotel and met with Gautam (PW6). Initially, he was made target but the precaution taken by Gautam saved him. Since he had informed his friend about his movement with the appellants, he was left there. 16. Again, according to the evidence of PW2, appellants returned back to Bokaro but on 28.9.2008, they came to Dhanbad on the said car and on that occasion, appellant 1 and 2 were with him. The vehicle was parked near Children Park, Jharia from where Sumit was picked up and then they proceeded towards Giridih, but on the way, they consumed liquor and Sumit was also compelled to have. After reaching Giridih, they went to the house of Vickey Sharma ( appellant no.2) and stayed there. Dulal Mahto PW2 spent the night in the car, whereas Sumit and the appellants remained inside the house. In the morning, the driver overheard while the appellants had been talking for ransom of Rs. 15/20 lakhs. Thereafter, he demanded fare against the hire of the car and Rs. 4000/-(four thousand) was paid by the appellant Rockey Dutta after which he returned to Bokaro on his car. In the morning, the driver overheard while the appellants had been talking for ransom of Rs. 15/20 lakhs. Thereafter, he demanded fare against the hire of the car and Rs. 4000/-(four thousand) was paid by the appellant Rockey Dutta after which he returned to Bokaro on his car. When he heard about the missing of Sumit, he had reasons to believe that Sumit was kidnapped by those three accused/appellants. Statement of this witness was also recorded under Section 164 Cr.P.C. 17. The evidence that Sumit had boarded in the car near the Children Park, Jharia, on 28.9.2008 finds support from the evidence of Pws 4 and 5 to whom Sumit was known from before. Presence of these two witnesses at the relevant place and time finds support from the evidence of the investigating officer. PW4 Mukti Pada Sen was present at a cycle repairing shop, whereas Shankar Sharma PW5 was having a Saloon situated near the place. Furthermore, the evidence of Pws 8 Sabita Ojha is very clear that she received phone call on the land-line and the caller had expressed his desire to talk with Sumit. Accordingly, the receiver was given to Sumit, who, after attending the call, informed his mother that he would be coming within half an hour, left home. Since 28.9.2008, Sumit was found missing; information was given to Police and Station Diary Entry on the following morning was made. On 1.10.2008, PW9 received a call by which ransom was demanded against release of Sumit. Thereafter, FIR was lodged and the police came in action. The mobile used by the miscreants were put on track after which the appellants 1 and 2 were apprehended. From their possession, mobile phones and SIM cards used by them were seized. Later, dead body of Sumit was recovered on the basis of the confession made by those appellants. The dead body was recovered in presence of a Magistrate and Sadar of Kabristan and videography was done. The dead body was highly decomposed, but identified by Pws. 1,6,8 and 9. Therefore, the prosecution evidence remain quite consistent from beginning to end i.e.from the stage the appellants had hired the car for committing the offence and till recovery of the dead body from the graveyard situated at Bhandaridih. We do not find any missing link giving rise to any hypothesis of the innocence of the appellants. 1,6,8 and 9. Therefore, the prosecution evidence remain quite consistent from beginning to end i.e.from the stage the appellants had hired the car for committing the offence and till recovery of the dead body from the graveyard situated at Bhandaridih. We do not find any missing link giving rise to any hypothesis of the innocence of the appellants. In view of the above, we do not agree with the submissions that the chain of circumstantial evidence are not complete. 18. The learned counsel for the appellants also drew our attention to the evidence of DW1 and contended that the dead body was not of Sumit, because it was not in a position to be identified. But after discussion of the evidence of Pws1,6,8 and 9, learned counsels have conceded and they have dropped that point. Even though, we think it necessary to mention that the marks of old surgery appearing on the person of Sumit was noticed by the witnesses and the surgery was done for the purpose of removal of his appendix. 19. The next point raised on behalf of the appellants was that no ransum was paid to any appellant and no direct evidence with regard to the conversation held between the appellants and the witnesses has come on the record. In this regard, learned Sessions Judge has discussed the point in detail in the impugned judgment. The informant has clearly stated that on1.10.2008, he received a phone call by which a sum of rupees twenty lakhs was demanded against release of Sumit; only thereafter, the FIR was lodged. The call details report which are admissible under section 65(B) of the Evidence Act are available on the record. 20. Learned counsel vehemently argued with regard to the application of Section 27 of the Evidence Act and the investigation done. We have already discussed that after the arrest of appellants 1 and 2, they had been forwarded to Jail custody and again, they were taken on police remand and on the basis of their confessional statements, the police party proceeded to Giridih and the executive Magistrate was appointed, permission was sought from the Administration and Sadar of the concerned graveyard and in presence of the aforesaid authorities and a large number of people, the dead body of Sumit was dug out and accordingly inquest report and other formalities were done. The identification of the particular place where the dead body was buried, could become possible only on the pointing out of the appellants . The digging out of the dead body was videographed. Therefore, the available confession made by the appellants was leading to recovery of the dead body and this part of their confession is quite admissible under Section 27 of the Evidence Act. We do agree that remaining part of the confession shall not be considered as the ground for their conviction . 21. It appears that the appellants had, some how or the other, tried to mislead the investigation and they did not disclose as to how Sumit was actually murdered. They did not confess the manner of occurrence, but it would not make any difference in view of the theory of last seen applicable in the case of circumstantial evidence. Again, it would not be out of place to mention that PW2 had left Sumit in the company of these appellants whereafter Sumit was not seen alive. Furthermore, on the basis of the confession, the dead body was recovered and part of confession finds support from the evidence of Pws 2, 4,5,11 and 14, the post mortem report, the viscera report and the material Exhibits. 22. After analysing the evidence in detail and with objectivity it becomes clear that the accused persons in a pre-planned manner identified a target for kidnapping with a motive to realise ransom. Accordingly, they executed their plan meticulously. From their acts, it is apparent that the accused persons were led by Swapan Jha as he had identified and fixed the target. He was the best person who knew the background of the informant and his prosperity. He is the own Bhagina of the informant. After identifying the target a plan was hatched out and the target was son of the informant. Initially they had planned to entice Gautam Kumar Ojha (PW6) from Calcutta, but it failed. The factum of going to Calcutta in white Indica Car is proved as per the evidence of Pw1,2 and 6 and the investigating officer. A police team had gone to Calcutta and verifications were made. After the failure of such plan the accused developed an alternate plan i.e. kidnapping of the younger son of the informant. Accused Swapan Jha along with others succeeded in kidnapping Sumit Kumar Ojha. The plan succeeded and was executed. A police team had gone to Calcutta and verifications were made. After the failure of such plan the accused developed an alternate plan i.e. kidnapping of the younger son of the informant. Accused Swapan Jha along with others succeeded in kidnapping Sumit Kumar Ojha. The plan succeeded and was executed. The idea prevailing in the mind of the accused is apparent and they knew what was to be done. They were aware of the consequence. It is well known that whenever kidnapping is done by a known person, there is hardly any chance of survival of the victim. Thus, from the very beginning the accused persons knew that the victim if kidnapped he shall be done away with. The chances of return of a known victim alive is remote. In this case, the victim is the own cousin of the accused/appellant Swapan Kumar Jha. The question of allowing the victim return alive was remote even if ransom was paid. The presence of criminal intent ( mens rea) is present from the very beginning and the accused persons had made all preparations and had plans for committing murder of the victim. In this case, even after the murder, the accused persons had the guts to call the informant and make a demand for ransom. From the evidence adduced, it has already been proved that they had secretly buried the body in a graveyard in a professional manner. Their criminal intent is proved beyond shadows of reasonable doubt”. 23. The facts and circumstances appearing from the case in hand entirely tally with the facts and circumstances of the case of Vikram Singh Vs. State of Punjab ( 2010 (3) SCC 56 ). In that case, a school going boy, aged 16-17 years was kidnapped for ransom and known persons were involved in the kidnapping. The boy was kidnapped in a car, which was borrowed by one of the accused. To overpower the boy, Chloroform was administered. The accused persons had demanded rupees fifty lakhs from the father of the deceased, but during investigation, they were apprehended and the vehicles used for committing the offence were seized. On the basis of confession, incriminating articles were recovered and finally the accused were held guilty and awarded capital punishment. 24. To overpower the boy, Chloroform was administered. The accused persons had demanded rupees fifty lakhs from the father of the deceased, but during investigation, they were apprehended and the vehicles used for committing the offence were seized. On the basis of confession, incriminating articles were recovered and finally the accused were held guilty and awarded capital punishment. 24. In view of the discussions made above and the materials available on the record, we find that the prosecution has succeeded to form a complete chain of evidence leading towards the guilt of the appellants and the learned Additional Sessions Judge has rightly held the appellants guilty for offences punishable under sections 364A/302/201/34 IPC. The sentence passed against the appellants Amarendra Kumar Sharma @ Vickey and Rockey Dutta needs no discussion, but considering the death reference, capital punishment passed against the appellant no. 1 Swapan Kumar Jha is required to be discussed. 25. It was contended that on similar set of evidence, other two appellants have been awarded rigorous imprisonment for life, but the appellant no.1 has been awarded death sentence and the grounds on which the sentence has been distinguished, do not appear to be proper and tenable. The case does not come under the purview of the rarest of rare case. Admittedly, the case is based on circumstantial evidence and the learned Sessions Judge has failed to prepare proper balance sheet with regard to the aggravating and mitigating circumstances relating to appellant no. 1 Swapan Kumar Jha. No previous criminal antecedents or conviction against the appellant no. 1 has been brought on record. He is also a young boy and there is every chance of his reformation and rehabilitation, because larger part of his life is remained to be spent. There might be an evil design in his mind to become rich by adopting short cut methods, but the family background does not indicate that he is habitual of committing such offences. Learned Additional Sessions Judge has mis-appreciated the guidelines given by the apex court in the case of Bachan Singh Vs. State of Punjab ( 1980 [2]SCC 684). The learned court below should have considered the view of the Apex Court reported in 2009 (6) SCC 498 ( Santosh Kumar Satish Bhushan Bariar Vs. Learned Additional Sessions Judge has mis-appreciated the guidelines given by the apex court in the case of Bachan Singh Vs. State of Punjab ( 1980 [2]SCC 684). The learned court below should have considered the view of the Apex Court reported in 2009 (6) SCC 498 ( Santosh Kumar Satish Bhushan Bariar Vs. State of Maharashtra ) in which mitigating circumstances lying in favour of the convicts have been categorized and explained in para 170 to 178, although considering the facts and evidence of that case. Most of the mitigating circumstances considered in the said judgment appears to be fully applicable in the case at hand with regard to the appellant no. 1 Swapan Kumar Jha and he should not have been awarded death sentence. 26. On the other hand, learned counsel appearing for the State has relied upon the following judgments : (i) 1980(2)SCC 684 (Bachan Singh Vs. State of Punjab) (ii) 2010 (3) SCC 56 ( Vikram Singh Vs. State of Punjab) (iii) 2004 (SCC) (Cri) 529 ( Sushil Murmu vs. State of Jharkhand; (iv) 1983 (3) SCC 470) ( Machchi Singh Vs. State of Punjab) 27. We would like to re-produce hereinbelow paragraphs 32,33,34 and 37 of the judgment in the case of Machchi Singh Vs. State of Punjab reported in 1983 (3) SCC 470 , which guide us to bring a particular case within the category of the rarest of the rare case. “32. The reasons why the community as a whole does not endorse the humanistic approach reflected in “death sentence-in-no-case” doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by “killing” a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: I. Manner of commission of murder 33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, (i) when the house of the victim is set aflame with the end in view to roast him alive in the house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death. (iii) When the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. Motive for commission of murder 34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland. Personality of victim of murder 37. Personality of victim of murder 37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b)a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.” 28. In view of the guidelines given above, we have considered the following reasons to frame the case of the appellant no. 1 within the ambit of the rarest of the rare case. 29. In this case, a boy aged about 19 years, who was a student, was kidnapped for ransom, demanded in terms of rupees twenty lakhs. (ii) Appellant No.1 Swapan Kumar Jha is none else, but the cousin of the deceased Sumit alias Govind. He was the master-mind behind the plan and he had identified and fixed the target for kidnapping one of his relatives to realize hefty amount. The informant is the maternal uncle of the convict Swapan Kumar Jha. (iii) since the target was known to the convict and, therefore, it was all along within the mind of the appellant no. 1 that the prey shall not be spared even after realization of the ransom. It is not a case of murder simpliciter, rather, the appellants have been held guilty for the offences under section 364A of the IPC and this section has been introduced in order to curb the menace of kidnapping for ransom. (iv) It appears that the deceased was administered spurious drugs and thereafter he was murdered and even after killing the deceased, ransom was demanded; (v) It is a case of betrayal of trust and no society will survive if the trust is betrayed by a close relation; (vi) The convicts, in order to screen themselves from the legal punishment, had disposed of the dead body like habitual offenders. They had carefully and cautiously executed their plan and buried the dead body in the graveyard, about 6 ft deep, beneath the earth. They had carefully and cautiously executed their plan and buried the dead body in the graveyard, about 6 ft deep, beneath the earth. (vii) Mental agony of the parents who lost their son and that too at the instance of their close relative, put them under a great shock and such incident is sufficient to put the society at large under threat and no one will have trust or faith in others; (viii) It was a pre-planned cold blooded murder and the plan was designed by the convict no. 1 who is a close relative of the deceased. He has committed the offences for ransom and he was pre-determined from the very beginning to kill the deceased irrespective of payment of ransom and therefore we find that the principles laid down by the apex court in the case of Vikram Singh Vs. State of Punjab ( 2010 (3) SCC 56 ) shall be applicable to the case in hand and we do agree with the view of the learned Addl. Sessions Judge that the case of the convict Swapan Kumar Jha, appellant No.1, comes within the purview of the rarest of the rare case and he deserves the death sentence. Accordingly, the death sentence awarded to the appellant no.1 stands confirmed. 30. In view of the discussion made above, we do not find any merit in any of the appeal preferred by the appellants, referred to above and the same stand dismissed. The impugned judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge in Sessions Trial No. 88 of 2009 stands upheld.