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Tripura High Court · body

2013 DIGILAW 21 (TRI)

Pradip Sharma v. State of Tripura

2013-07-25

DEEPAK GUPTA, U.B.SAHA

body2013
JUDGMENT Deepak Gupta, C.J. 1. This appeal by two of the accused is directed against the judgment dated 14.2.2002 whereby the learned trial court convicted the accused of having committed offences punishable under Section 365 read with Section 34, 302 read with Section 34 and 201 of the Indian Penal Code (IPC). This appeal was initially filed by three accused Pradip Sharma, Sanjoy Nag and one other. During the course of this appeal, it appears that the third accused who was also convicted by the learned trial court was found to be a juvenile and since been dealt with as a juvenile. Therefore, this appeal has been taken up only as far as Pradip Sharma and Sanjoy Nag are concerned. The third accused is hereinafter referred to as 'Juvenile' for the sake of convenience and to make the chain of circumstances complete. 2. The learned trial court by its order dated 26.02.2002 sentenced the appellants to undergo rigorous imprisonment for life and pay fine of Rs. 5,000/- in respect of the conviction under Section 302 and in default of payment of fine the accused were directed to undergo further rigorous imprisonment for two years. For the offence under Section 365, the accused were sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 2,000/- each and in default of payment of fine to undergo further rigorous imprisonment for one year. The accused were sentenced to rigorous imprisonment for five years and pay fine of Rs. 2,000/- only and in default of payment of fine to undergo further rigorous imprisonment for one year in respect of the offence punishable under Section201 of IPC. All the sentences to run concurrently. 3. The prosecution case is that the two accused and the Juvenile hatched a conspiracy to kidnap a 3 1/2 years old young boy named Debarghya alias Deep alias Buro for the purpose of getting ransom from the father of the child who was alleged to be a rich businessman of Udaipur town. According to the prosecution, Juvenile and accused Sanjoy are cousins. The Juvenile along with his friend Pradip Sharma had gone to the house of his maternal uncle, i.e. father of Sanjoy, at Maruarkilla. There all three hatched a plan to kidnap some young child with a view to extract ransom from the father of the child. According to the prosecution, Juvenile and accused Sanjoy are cousins. The Juvenile along with his friend Pradip Sharma had gone to the house of his maternal uncle, i.e. father of Sanjoy, at Maruarkilla. There all three hatched a plan to kidnap some young child with a view to extract ransom from the father of the child. It appears that Sanjoy was the mastermind and the other two accused asked Sanjoy to come to Udaipur. 4/5 days before the occurrence, Sanjoy came to the house of the Juvenile at Udaipur and then they identified the complainant Dilip Kr. Roy to be a rich person and identified him as the target by kidnapping his child. 4. According to the prosecution, in pursuance to this plan the accused Pradip and the Juvenile met some other friends of the same locality namely PW-19, Amar Debnath and PW-38, Kajal Das and invited them to join them in the illegal venture of kidnapping the child. Dilip Kr. Roy and his wife Swapna were both government employees who were residing in a rented house at Udaipur along with their child Debarghya alias Buro (hereinafter referred to as 'Buro'). They had another son who was prosecuting his college education at Agartala. Since both the parents were employed, they used to leave their home for their offices at about 10 a.m. The child Buro was left under the care of a maidservant, PW-1, Malati Paul. The usual practice was that Swapna Roy would come home at about 1 p.m. for having lunch with her son and then used to go back to her office. On 9th September, 1998, Sanjoy came to Udaipur and met the Juvenile and Pradip. These two co-accused informed Sanjoy about the name of the child, the name of his parents and other details of the family. Thereafter they all proceeded towards the locality in which the child was residing. Pradip and the Juvenile waited near the water supply service point near the resident of Dilip Kumar Roy. Sanjoy entered the house and called out for Swapna 'boudi' as if he was calling for the wife of his elder brother. PW-1, the maidservant answered the call of Sanjoy. She did not know Sanjoy, but Sanjoy pretended as if he knew Swapna Roy very well. Malati informed Sanjoy that Swapna Roy was in the office and would return after finishing work. PW-1, the maidservant answered the call of Sanjoy. She did not know Sanjoy, but Sanjoy pretended as if he knew Swapna Roy very well. Malati informed Sanjoy that Swapna Roy was in the office and would return after finishing work. Thereupon, Sanjoy informed her that he wanted to meet Swapna Roy in the office and he would take Buro with him. He under this pretext took Buro, but instead of going to the office he took a cycle rickshaw and went to Ramesh Chowmuhani with the boy. In the mean time, as per the plan, Pradip and the Juvenile hired an auto rickshaw from Jamtali auto stand in Udaipur town. According to the prosecution, they hired the auto rickshaw of PW-37, Raju Roy and agreed to pay a fare of Rs. 35/- for going to Mog Puskarini. They picked up Sanjoy and the child Buro from Ramesh Chowmuhani and reached Mog Puskarini where they all got down from the rickshaw. 5. Thereafter, the three accused along with Buro who was in the lap of Sanjoy went on a footpath. At this stage, Sanjoy said that if Buro was taken to his house, the guests in his house would recognize him. He also said that it would be risky to keep Buro alive as Buro could identify both Pradip and the Juvenile since they were known to Buro as they all resided in the same colony. Thereafter, Sanjoy went to the house of PW-13, Jyotsna Bala Das, and got a spade from her house. Thereafter, they dug a pit by using the spade and after the grave was dug, Pradip and the Juvenile caught hold of the hands and legs of the child while Sanjoy strangulated him to death. Thereafter, the dead body of Buro was buried in the pit they had dug. The Juvenile and Pradip returned home to Udaipur town and, in fact, joined the search for the missing Buro. Sanjoy returned the spade to PW-13. In the mean time when Swapna Roy returned home for lunch at about 1 p.m., PW-1 Malati told her that Buro had been taken to meet her. She immediately raised an alarm and all the neighbours assembled at her house. Thereafter, Dilip Kr. Roy came home and they all searched for Buro, but in vain. Finally, Dilip Kr. Roy lodged a written FIR with the police at about 1-35 p.m. 6. She immediately raised an alarm and all the neighbours assembled at her house. Thereafter, Dilip Kr. Roy came home and they all searched for Buro, but in vain. Finally, Dilip Kr. Roy lodged a written FIR with the police at about 1-35 p.m. 6. On receipt of the FIR, case no. 228 of 1998 under Section 365 of IPC was registered. The investigation was carried out by PW-39, Ashish Deb. He, infact, examined and thereafter arrested PW-1, Malati Pal, on 09.09.98 itself. She was produced before the court on 10.09.98 where she was remanded to police custody. On 11.09.98 one Bidhan Das was also arrested. However, on 13.9.98 following the information given by PW-35 and PW-39, two of the accused Pradip Sharma and the Juvenile were arrested. According to the police, on 14.09.98 at 2-05 a.m. both Pradip and the Juvenile made a disclosure statement to PW-39 that they would be able to show the place where the dead body of Buro had been buried at Ichacherra. The Investigating Officer arranged for an Executive Magistrate, sweeper, photographer and also collected the relatives of Buro and all of these persons along with the accused proceeded towards the spot. The path was shown to them by the two accused Pradip and the Juvenile who took them to a spot and told them that the dead body of Buro was buried there. Thereafter, these two accused with the help of the sweeper disinterred the dead body of a child which was identified to be that of Buro by his uncle, PW-27, Jahar Roy. The dead body was sent for postmortem examination and the Doctor, PW-31, opined that the death of the child aged three years and seven months was caused due to asphyxia which was a result of throttling and was homicidal in nature. Other investigation was carried out and a pair of sandals identified as belonging to the deceased child were recovered from nearby the spot and the spade was also recovered from PW-13, Jyotsna Bala Das on 14.09.98. 7. The news of the recovery of the body was flashed in the newspapers and PW-37, Raju Roy, the driver of the auto rickshaw read one news item in the "Dainik Ganadoot" and on seeing the photographs of Pradip and the Juvenile identified them as the persons who had boarded his auto rickshaw on 09.09.98. 7. The news of the recovery of the body was flashed in the newspapers and PW-37, Raju Roy, the driver of the auto rickshaw read one news item in the "Dainik Ganadoot" and on seeing the photographs of Pradip and the Juvenile identified them as the persons who had boarded his auto rickshaw on 09.09.98. He informed the head of his Union as well as the owner of the auto rickshaw who, in turn, informed the police. On the night intervening 15th and 16th September, 1998, PW-24 Dilip Das saw Sanjoy and his father swimming in a pond across Hurijala. Sanjoy Nag was apprehended and produced before the police and was thereafter sent to police custody. Thereafter, on the instruction of the Chief Judicial Magistrate, PW-29, Judicial Magistrate Ist Class, conducted a test identification parade in respect of the suspect Sanjoy Nag, who was then identified by PW-1, Malati Paul, as the person who had come to the house and had taken away the child Buro under the pretext that he was taking the child to meet his mother. According to the police, on 21.09.98 Sanjoy made a disclosure statement which led to the recovery of the handle of the spade which had broken when they were burying the dead body of Buro. On 25.09.98; PW-39 produced accused Pradip and the Juvenile in the court of the Chief Judicial Magistrate with a prayer that they wanted to get recorded their confessional statements. PW-36, who was the Chief Judicial Magistrate, South Tripura Udaipur recorded the confessional statements of accused Pradip Sharma and the Juvenile. Similarly, on 28.09.98 Sanjoy was also sent to the Court by police and his confessional statement was recorded; Thereafter, investigation was concluded and the accused was charged with having committed the offences detailed hereinabove. They pleaded not guilty and claimed trial. After a long and protracted trial, they were all found guilty. Hence, this appeal by the accused. 8. This is a case where there is no eye witness to the occurrence. The entire case is based on circumstantial evidence. The law with regard to appreciation of circumstantial evidence is very clear. It has been repeatedly laid down by the Apex Court that in cases relating to circumstantial evidence, the prosecution must prove the circumstances and link them in such a manner that they lead to only one conclusion, i.e., the guilt of the accused. The law with regard to appreciation of circumstantial evidence is very clear. It has been repeatedly laid down by the Apex Court that in cases relating to circumstantial evidence, the prosecution must prove the circumstances and link them in such a manner that they lead to only one conclusion, i.e., the guilt of the accused. If there is chance of any doubt or there is chance of any other person having committed the offence, the accused must be given the benefit of doubt. We have to decide the case keeping in mind the principles relating to circumstantial evidence which we have quoted hereinabove. 9. We have heard Mr. R. Datta, learned counsel for the appellants and Mr. R.C. Debnath, learned Addl. P.P. for the respondent-State. 10. The following circumstances have been relied upon by the prosecution. (A) Accused conspired to kidnap the decease; (B) In the test identification parade, accused Sanjoy was identified; (C) Pradip Sharma and the Juvenile belonged to the same locality as the deceased; (D) Recovery of the body and spade at the instance of the accused; (E) The confessions made by the accused under section 164 Cr.P.C.; (F) Last seen together. The most important circumstances are the confessional statements, the recovery of the dead body and last seen together. 11. We proceed to decide the circumstances in the manner in which they have been set out hereinabove. (A) Accused considered to kidnap the deceased's:-- To prove this circumstance, the prosecution has relied upon on the following witnesses:-- PW-5, Biplab Bijoy Dey, stated that on 09.09.98 when was sitting in the tea stall of one Sankar Das, he was told by Sajal Majumder that 14/15 days earlier Pradip Sharma had visited his house and asked him to kidnap a boy and they could earn ransom of Rs. 5 lakhs. PW-6, Sankar Das, owner of the tea stall, also give a similar version. PW-35, Sajal Majumder, stated that 15/20 days prior to the incident, he had met Pradip Sharma and the Juvenile in the Loknath Ashram, and they had proposed that they would kidnap a child and earn ft ransom of Rs. 5 lakh. He did not agree to that proposal. PW-38 is one Kajal Das, who states that Pradip Sharma had once met and proposed to him that they would kidnap a child and earn Rs. 2/3 lakhs as ransom. 5 lakh. He did not agree to that proposal. PW-38 is one Kajal Das, who states that Pradip Sharma had once met and proposed to him that they would kidnap a child and earn Rs. 2/3 lakhs as ransom. According to him, such proposal had been made to Amar Debnath also. PW-19, Amar Debnath, has made a similar statement. According to him, Kajal Das was present when such proposal was made to him. But according to PW-38, Kajal Das, he had met the accused at the gate of the house of Amar Debnath. This is a material contradiction between the two statements. 12. It is difficult to believe the statements of these witnesses. If such a proposal by the Juvenile and Pradip Sharma had been made, there was no reason why these witnesses should not have gone to the police immediately. It is also pertinent to mention that PW-38 was confronted with his statements recorded under Section 161 Cr.P.C. where no such statement was recorded. Therefore, the prosecution has not proved that such a proposal was made by the accused Pradip Sharma and the Juvenile to either PW-35 or PW-38. This, however, does not mean that there was no conspiracy between the accused, which issue we shall decide on the basis of the other evidence on record. (B) Test Identification Parade:-- 13. The prosecution story is that it was accused Sanjoy who had gone to the house of the complainant and kidnapped the minor child. As mentioned above, PW-1, the maidservant, was arrested on the date of the occurrence itself. Sanjoy was arrested on 16.09.98 and sent to police custody. The test identification parade was conducted at the request of the Investigating Officer by PW-29, Subhas Sikdar, who was then working as Judicial Magistrate 1st Class, Udaipur. Sanjoy Nag was identified by PW-1, Malati Paul. PW-1, is Malati Paul. This lady in her statement stated that on the date of occurrence she was alone in the house with the small child Buro after the elder brother had left for Agartala and the parents left for their respective offices. A little after 11-30 a.m., one unknown person entered the building calling for 'Swapna boudi'. PW-1, is Malati Paul. This lady in her statement stated that on the date of occurrence she was alone in the house with the small child Buro after the elder brother had left for Agartala and the parents left for their respective offices. A little after 11-30 a.m., one unknown person entered the building calling for 'Swapna boudi'. The witness informed this person that Swapna Roy had gone to office and would return at 1 p.m. This person then expressed his intention of meeting Swapna Roy in the office and also offered to take Buro with him. She has tried to put up a case that she resisted this effort of the unknown person, but according to her, this unknown person took Buro on the pretext of taking him to his mother. In cross-examination, she admitted that she was arrested by police and kept in the police station for four days. She also admitted that she was in the police station when Pradip Sharma and the Juvenile were arrested. She remained in judicial custody for about three months. She denied the suggestion that accused Sanjoy Nag was shown to her by the police prior to the test identification parade. 14. PW-29 conducted the test identification parade and according to him, he was directed by the Chief Judicial Magistrate, South Tripura to conduct this parade in respect of Sanjoy Nag who was lodged in the Udaipur District Jail. The witness visited the jail. PW-1 was in the female ward of the same jail. He first met the PW-1 and then he met the suspect Sanjoy Nag who was in the male ward of the jail. The Sub-Jailor identified Sanjoy Nag to him. Thereafter, Sanjoy Nag was mixed up with 9 (nine) other prisoners of similar height and all of them were wearing the same dress. Sanjoy Nag was placed somewhere in the middle of the line. Thereafter, PW-1 was brought in and she was asked to identify the person who had kidnapped the child and she identified Sanjoy Nag by touching his hand. The entire proceeding was conducted in the presence of PW-34, Nanigopal Deb, the Sub-Jailor, and the Chief Head Warder of the Jail. The witness prepared a memorandum of the test identification parade (Exhibit-8). The thumb impression of Malati Paul was affixed on this memorandum. PW-34 is the Sub-Jailor and he has also fully supported the PW-29. 15. The entire proceeding was conducted in the presence of PW-34, Nanigopal Deb, the Sub-Jailor, and the Chief Head Warder of the Jail. The witness prepared a memorandum of the test identification parade (Exhibit-8). The thumb impression of Malati Paul was affixed on this memorandum. PW-34 is the Sub-Jailor and he has also fully supported the PW-29. 15. It has been urged on behalf of the accused that no reliance can be placed on this test identification parade because no independent witness was associated and furthermore, no reliance can be placed on Malati Paul since she herself was an accused No doubt, Malati Paul was arrested by the police. Since the child was left in her care when he went missing, the police had definitely reason to suspect her. However, the material gathered later on does show that she was not at all involved in the kidnapping. It may be true that she was negligent in permitting the minor child to be taken away by an unknown person, but this does not mean that she is of criminal bent of mind. She does not know accused Sanjoy and has no enmity with him. Though a suggestion has been put that the accused was shown to her, but we are not willing to accept this suggestion. In view of the statement of the Magistrate and the statement of Malati Paul, we are clearly of the view that Sanjoy Nag was correctly identified by Malati Paul as the person who kidnapped the child Buro from the house. Therefore, this circumstance is proved. (C) Pradip Sharma and the Juvenile belonged to the same locality:-- 16. This fact has been stated by a number of witnesses and there is no serious challenge to this. There is no manner of doubt that Pradip Sharma and the Juvenile belonged to the same locality as the deceased minor Buro. (D) Recovery of the body and spade at the instance of the accused:-- 17. The next important circumstance is the recovery of the dead body and the spade at the instance of the accused. In this behalf, the prosecution relies on the statements of PW-8, 9, 12, 14, 22, 27 and 39. 18. (D) Recovery of the body and spade at the instance of the accused:-- 17. The next important circumstance is the recovery of the dead body and the spade at the instance of the accused. In this behalf, the prosecution relies on the statements of PW-8, 9, 12, 14, 22, 27 and 39. 18. PW-8, Shiba Prasad Sen, is a government teacher and according to him, when he was proceeding towards his school, he met some police personnel who requested him to accompany them to witness an enquiry of a police case. He also boarded a police vehicle. They went towards Gangachera and from the Gangachera Jamjuri road they walked along the jungle for about 2 kms. After he had got down from the police vehicle and was walking, he saw two persons who had been arrested by the police. He could identify the Juvenile. He clearly states that these two persons were walking in front and were showing the way and the other members of the police party were following them. According to him, all the other persons followed the two persons and then these two persons pointed to a spot whereafter these two boys dug the earth at that spot and disinterred the dead body of a small child. This witness also signed the inquest report. The witness identified the Juvenile in court and also identified Pradip Sharma as the second person who was accompanying the Juvenile. In cross-examination, he stated that the road along which they walked was a Panchayat road, but not motorable. The road goes from Gangachera-Jamjuri road to Gangabazar. He also stated that the spot was about quarter of a furlong from the footpath and that people used to walk along the footpath. He admitted that he had seen the accused persons in the court room before stepping into the witness box. 19. PW-9, Lokesh Chakraborty, is another independent witness. He was also requested to accompany the police and he saw two persons who were going in front showing the way along a footpath through the jungle. They walked for about 1 km. and then at a short distance from the footpath, these two persons took them to a 'lunga' where a small place was cleared and the two persons pointed at the spot and then disinterred the dead body with the help of a sweeper. They walked for about 1 km. and then at a short distance from the footpath, these two persons took them to a 'lunga' where a small place was cleared and the two persons pointed at the spot and then disinterred the dead body with the help of a sweeper. He signed the memorandum prepared by the police on the spot. He also put his signatures on the inquest report. He identified the two persons as the Juvenile and accused Pradip Sharma. He denied the suggestion that due to fear of the police personnel, the accused persons were showing the path. He also states that there were houses at a distance of about one furlong from the place where the child was buried. 20. PW-12, Sunil Debbarma, was at the relevant time working as Deputy Collector-cum-Executive Magistrate at Udaipur. He joined the police investigation and went to the police station R.K. Pur, at Udaipur at about 8-30 a.m. From there, he along with other police personnel and the accused persons started for the spot. Thereafter, they walked on a jungle path shown by the two accused. for about a km. Thereafter, they reached a 'lunga' and then the two accused persons pointed the place where the child was buried. The spot was surrounded by trees. Thereafter, these two persons with the help of a sweeper disinterred a dead body of the child. The dead body was identified by Jahar Roy, uncle of the deceased. A suggestion was put to this witness in cross-examination that the accused had already shown the spot to the police prior to the disinterment of the body. He stated that he did not know whether this had been done. 21. PW-14, Shiba Sankar Dey, is a photographer of Udaipur town. He also states that he accompanied the police and then they had gone by vehicle about 16/17 kms. Thereafter, they walked for some distance to reach a spot. He has also clearly stated that the path was shown by Pradip and the Juvenile and it was these two accused persons who pointed out; the spot: where the child was; buried. He took the photographs and he has proved the photographs as well as the negatives. 22. PW-22, Tapan Madraji, is a person who joined the police party in its investigation He has fully supported the prosecution version. He took the photographs and he has proved the photographs as well as the negatives. 22. PW-22, Tapan Madraji, is a person who joined the police party in its investigation He has fully supported the prosecution version. He denied the suggestion that before their arrival on the spot, the place was surrounded by police personnel. 23. PW-27, Jahar Roy, is the uncle of the deceased. He states that on 14.09.98 he was telephonically asked by the police to come to the police station. He reached there at about 8 a.m. He was told that the police had arrested the Juvenile and Pradip and these persons had made a disclosure statement that they could identify the place where they had buried the deceased, nephew of this witness. At about 8-45 a.m., the police personnel, the Juvenile and Pradip, this witness, a Magistrate and some other persons boarded three vehicles and went to the spot. He states that after proceeding for some distance, the police had also picked up 2/3 other persons to witness the incident. After they had proceeded on vehicle 15/16 kms., the vehicle was stopped and thereafter, Pradip and the Juvenile showed a jungle path and this police party followed the accused Pradip Sharma and the Juvenile. After they had walked some distance and reached a small area surrounded by jungle, the two accused pointed at the spot where the child had been buried and thereafter, these two persons with the help of a sweeper disinterred the dead body of his nephew Buro. The witness also identified the Juvenile and accused Pradip Sharma as the persons who had led the police to the spot and disinterred the body. 24. PW-39 is the Investigating Officer Ashis Kumar Deb. According to him, after recording the statement of one Sajal Majumder, he arrested Pradip-Sharma on 13.09.98. Thereafter, he examined certain other witnesses and then came to the conclusion that both Pradip Sharma and the Juvenile were involved in the kidnapping. He thereafter again interrogated Pradip Sharma and then raided the house of the Juvenile and arrested him on 13.09.98. According to him during the course of interrogation at about 2-05 a.m. both accused Pradip Sharma and the Juvenile made a confessional statement (Exhibit-14). The confessional part of the statement is not at all admissible. He thereafter again interrogated Pradip Sharma and then raided the house of the Juvenile and arrested him on 13.09.98. According to him during the course of interrogation at about 2-05 a.m. both accused Pradip Sharma and the Juvenile made a confessional statement (Exhibit-14). The confessional part of the statement is not at all admissible. However, Pradip Sharma also stated that if he was taken to the place where Burb was killed, he would be able to identify the exact spot where the dead body was concealed and that the could get the dead body of the deceased recovered. Similar is the statement of the Juvenile. Thereafter, he associated an Executive Magistrate, a photographer and other independent witnesses and the body of the deceased was found at the instance of these persons. A suggestion was put to this witness that the police had visited the spot at night and had guarded it the whole night. He admits that there is an entry in the General Diary of the police station at Sl. No. 738 of 0010 hours on 14.09.98 in which it was mentioned that Sub Inspector T.K. Das and ASI A.T. Paul and SDPO, Udaipur and staff left for Dudh Puskarini and Mog Puskarini to conduct search to recover the kidnapped boy. He, however, denied the suggestion that pursuant to this entry, he along with the two accused had visited the site of disinterment and with the help of extra lights Pradip Sharma and the Juvenile had shown the place of disinterment. He also denied the fact that this spot was guarded by the police from midnight till the next morning. 25. It is argued by Mr. Datta that in the G.D., Entry of the Police Station no. 738 at 0010 hours, it is mentioned that the police officials had gone search the recovered boy. He, however, submits that as per G.D. Entry No. 741, it is mentioned that the accused had already confessed their guilt on 13.09.98 and, therefore, there was no point in searching for the kidnapped boy. According to him, the entire recovery of the dead body was fabricated and has not been proved. He also urges that the statements of PW-8 and 9 cannot be believed because each has not spoken of the presence of the other. 26. The contention of Mr. Datta that the entry no. According to him, the entire recovery of the dead body was fabricated and has not been proved. He also urges that the statements of PW-8 and 9 cannot be believed because each has not spoken of the presence of the other. 26. The contention of Mr. Datta that the entry no. 741 was recorded on 13.09.98 does not appear to be correct. From the perusal of the original General Diary Book, we find that the date 13.09.98 had been entered on a large number of pages and the figures "13.9.98" at the top were entered. However, entry no. 737 is of 2400 hours. After that the date should have changed. At 0010 hours is entry no. 738, reference to which has been made above. At 2-05 a.m., there is entry no. 740 which has no concern with this case. Entry no; 741 is at 0230 hours and it is recorded that the interrogation team along with the I.O. appeared in the chamber of the person recording the statement and stated that the accused had made confessional statements and that they also stated that they had buried the dead body in a forest near the house of Sanju in a 'lunga' and Sanju had brought one spade from a nearby house and dug a grave. The entry is not dated 13.09.98 though on the top of the page, the words "13.9.98" appeared, but it is a continuation of the page which started at 1-55 p.m. on 13.09.98 and naturally after 2400 hours, the date changes. Therefore, this submission made on behalf of the accused cannot be accepted. Till 2-05 a.m. the accused had not confessed that they had kitted the deceased. However, the police by that time had gathered information that the accused had gone towards Mog Puskarini and Dudh Puskarini. Therefore, was nothing wrong if a police party went towards those places to recover the kidnapped boy. There is no fabrication of evidence at all. The disinterment of the body was witnessed not only by police officials but also by an Executive Magistrate, a photographer and three other independent witnesses. None of these witnesses have anything personal against the accused. Their statements are consistent with each other. The place from where the dead body was recovered was in the middle of a jungle. The disinterment of the body was witnessed not only by police officials but also by an Executive Magistrate, a photographer and three other independent witnesses. None of these witnesses have anything personal against the accused. Their statements are consistent with each other. The place from where the dead body was recovered was in the middle of a jungle. No other person could have known where the body was buried and as such, we are clearly of the view that the prosecution has been able to prove beyond reasonable doubt that the body was recovered at the instance of the accused Pradip Sharma and the Juvenile. (E) The confessions made by the accused under Section 164 Cr.P.C.:-- 27. Another important circumstance relied upon by the prosecution is the confessional statement of the accused made to the police official. Section 164 relates to recording of confessional statement by Magistrate. Section 164 reads as follows:-- (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be. used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntary. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-- I have explained to(name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntary made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A.B. Magistrate. (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. 28. Mr. R. Datta urges that since 164(6) provides that the Magistrate recording a confessional statement under the section should forward it to the Magistrate by whom the case is to be inquired into or tried, it means that the Magistrate who inquires into or tries this case is not entitled to record the confessional statement. He submits that inquiry means every inquiry and includes those inquiries which precede a trial. He also places reliance on Section 463 of the Code of Criminal Procedure which lays down that where there is non-compliance with the provisions of Section 164 or Section 281 while recording a confessional statement, the said statement is not admissible if it has affected the defence on merits. 29. The inquiry was being conducted by Mrs. Shipra Datta, PW-36. She also recorded the confessional statement and it is urged by Mr. 29. The inquiry was being conducted by Mrs. Shipra Datta, PW-36. She also recorded the confessional statement and it is urged by Mr. Datta that she could not have recorded this statement We are not at all in agreement with this submission. Section 164(1) clearly lays down that any Judicial Magistrate whether he has or does not have jurisdiction in the case can record any confessional statement made to him. It is obvious that the provisions of Section 164(6) are to be invoked only when the Magistrate recording the confessional statement is not the Magistrate who is inquiring or trying the case. It is in these circumstances that he shall have to send the statement or confession so recorded to the Magistrate having jurisdiction to inquire into or try the case. 30. We are not at all in agreement with the submission made by Mr. Datta that section 164(6) disempowers the Magistrate trying or inquiring into the case from recording such statement. This is not at all the intention of the Criminal Procedure Code. The argument that the objective of Section 164(6) is to create a bias free environment and the concerned Magistrate should have no personal knowledge about the facts and circumstances of the case is totally misconstrued. A Magistrate is by the very nature of his job trained to be without bias. Section 164(1) clearly lays down that even a Magistrate who has jurisdiction in the case can record such statement. We, therefore, do not accept this submission of Mr. Datta. 31. Having held so, it is well settled law that a confessional statement, especially a retracted confessional statement, is a weak piece of evidence and by itself cannot be used to convict the accused. 32. In State of Tamil Nadu Vs. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778 , the Apex Court held as follows:-- 13. It is not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard. 14. We are unable to understand how a judicial confession would become bad by reason of the fact that articles belonging to the victims were recovered prior to the making of the confession. That aspect, instead of vitiating the confession, could be a factor in favour of the voluntariness of the confession. When the culprit finds that the articles concealed by him are all disinterred it is possible that he might feel that there is no use in concealing the facts any more. Then he may desire to make a clean breast of everything to any person or authorities. 33. In Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 , the Apex Court dealt in details with the question as to how a statement under section 164 should be recorded. The Apex Court held as follows:-- 29. The following principles emerge with regard to Section 164 Cr.P.C.:-- (i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence. (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement. 34. It is thus obvious that for a confessional statement to be admissible and to be read against the accused, the provisions of Section164 must be strictly complied with. The Magistrate must make an inquiry from the accused about the manner in which he has been treated to ensure that no extraneous influence has been used upon the accused. The Magistrate should ask the accused as to why he wants to make this statement and the accused should be granted sufficient time to reflect in the matter. The accused should also be assured of protection from any sort of apprehended torture or pressure from the police, in case he declines to make confessional statement Therefore, if a judicial confession which has not been given voluntarily is retracted, no conviction can be based on such retracted confession. The accused should also be assured of protection from any sort of apprehended torture or pressure from the police, in case he declines to make confessional statement Therefore, if a judicial confession which has not been given voluntarily is retracted, no conviction can be based on such retracted confession. The guidelines also lay down that the accused should be completely out of police influence and the Judicial Officer recording the confession must apply his judicial mind to ascertain and satisfy his functions that the accused is not making the confessional statement on account of some pressure. No police officer should be present in the court at that time. Normally there should be corroboration of a confessional statement before the conviction. 35. It has been urged by Mr. Datta that in the present case, the accused were beaten up and made the confessional statement after they were arrested. He has relied upon the statements of the accused under section 313 and the statement of the Court witnesses recorded in this behalf. 36. At the outset, we may state that the trial court was very conscious about this aspect of the matter and the statements of as many as 9(nine) Doctors were recorded as Court Witnesses. The confessional statement of Pradip Sharma and the Juvenile were recorded by PW-36, Mrs. Shipra Datta. She stated that on 25.09.98 accused Pradip Sharma and the Juvenile were produced before her by the police with a prayer to record their confessional statement under Section 164. She tested both of them separately about their voluntariness of giving statement and both agreed to give such statement. She did not record their statement on that very date, but directed that they be produced before her on 27.09.98 for this purpose. She also directed that till 27.09.98 they be kept in Udaipur District Jail in segregation and they be produced before her by the Jail Warder Escort and not by the police for recording their confessional statement. It is thus obvious that she gave the accused time to reflect and also ensure that they were not in the custody of the police during this period of two days. On 27.09.98, the accused were produced before her by four Jail Warders. She has clearly stated that no police personnel were present or permitted in the court premises. It is thus obvious that she gave the accused time to reflect and also ensure that they were not in the custody of the police during this period of two days. On 27.09.98, the accused were produced before her by four Jail Warders. She has clearly stated that no police personnel were present or permitted in the court premises. She examined each of the accused and the Juvenile separately while the other was guarded by the Jail Warders. She first satisfied herself that the Juvenile wanted to make a confessional statement. She interrogated him about his voluntariness to make confessional statement in question and answer form. She gave another one hour to the accused to reflect and he was kept in court. Thereafter, Pradip Sharma was produced before her and she followed the same procedure. Thereafter, at about 12-15 p.m. the Juvenile was again produced before her. She again tested him about his voluntariness and after he again expressed his intention to make the statement, she recorded the same. She also recorded the certificate in terms of Section 164(1). She in cross-examination admitted that on 25.09.98 when she first tested the two accused persons about their voluntariness to make the confessional statement, she did not warn them about the consequence of making the confessional statement She also admits that she did not separately record in the order sheet that she was satisfied about the voluntariness of the accused persons. However, she has added that this satisfaction has been recorded in the certificate of the confessional statement itself. She also states that she did not explain to the accused persons the difference between the police personnel and the Jail Warder. But according to her, they themselves were aware about the same. 37. We have perused the confessional statement of Pradip Sharma. The first question she asked the accused was from where he had come. The accused replied that he had come from Jail. She asked the accused whether there were any police accompanying them and he replied in the negative. She asked the accused whether he was separated from all other persons in the jail and he replied that they were kept separately. When asked who had brought them to the court, he clearly stated that Jail Warders had brought him to court. She asked the accused whether there were any police accompanying them and he replied in the negative. She asked the accused whether he was separated from all other persons in the jail and he replied that they were kept separately. When asked who had brought them to the court, he clearly stated that Jail Warders had brought him to court. He also stated that there were no police personnel present The Magistrate also offered to give them legal help, but the accused replied that at that time he only wanted to make the confessional statement and he would take legal help later on, if required. She also informed the accused that even if he did not make any confessional statement, he would not be handed over to the police. The accused still wanted to make a confessional statement She asked him other questions as to whether he had been pressurized or threatened in any manner and he replied in the negative. If one goes through all the questions asked by the Magistrate to the accused before recording the confessional portion of the statement, it is obvious that the Magistrate has complied with the provisions of Section164 in true letter and spirit and the confessional statement has been recorded in accordance with the guidelines laid down in Rabindra Kumar Pal's case. 38. As far as the allegation of Mr. Datta that the accused were tortured is concerned, we may mention that we have gone through the statements of all the Court Witnesses who are independent witnesses and we find that prior to the recording of the confessional statement, there is no evidence to show that the accused was tortured in any manner whatsoever. All the other evidence is subsequent to the recording of the confessional statement. It is only CW-9 who states that he visited the jail on 26.09.98 and attended the under trial prisoners Pradip Sharma and the Juvenile. On 26.09.98 they complained of body ache, for which he prescribed them medicines. He, however, also states that he did not find any mark of injury on the person of these persons and they were physically sound. There is no evidence of torture of any type prior to recording of their statements. The extra-judicial confessions allegedly made by the accused:-- 39. He, however, also states that he did not find any mark of injury on the person of these persons and they were physically sound. There is no evidence of torture of any type prior to recording of their statements. The extra-judicial confessions allegedly made by the accused:-- 39. As far as the extra-judicial confessions are concerned, the prosecution has relied upon the statements of PW-8, 9, 12, 14, 22, 27 and 39. All these witnesses are also witnesses to the recovery of the body. According to these witnesses, when the accused Pradip Sharma and the Juvenile were leading the police to the spot from where the body was recovered, these two accused were questioned by the witnesses as to what had happened and then the two allegedly confessed that they had kidnapped Buro and then had killed him and buried his body. In our opinion, no reliance can be placed on this extra-judicial confession since admittedly at that time the accused were in police custody and these extra-judicial confessions are hit by Section 27 of the Evidence Act and no reliance can be placed on this. Extra-judicial confession of accused Sanjoy Nag:-- 40. The prosecution relies on the statement of PW-24 and 25. PW-24, Dilip Das, states that about 2 1/2 years earlier he noticed Dulal Nag and his son Sanjoy Nag swimming across the Hurijala. According to this witness, they had information that Sanjoy Nag was wanted in. connection with kidnapping and murder of a child of Udaipur and that the police was on the lookout for Sanjoy Nag. Therefore, he along with Gopal Das and Parimal Podder apprehended Sanjoy Nag. After apprehending Sanjoy, they had taken him to the house of Sukumar Chakraborty. At that time, Sanjoy Nag confessed that he had kidnapped a child to procure ransom and that alter killing the child, he had buried the child in the jungle. Thereafter, from the house of Sukumar Chakraborty, they all went to the Mirja Panchayat Office where Sanjoy Nag was kept in the custody of Sukumar Chakraborty. He also stated that Sanjoy Nag was also not known to him earlier and, therefore, Sanjoy was apprehended only on the ground that he was suspected to be a thief. It is difficult to believe the statement of this witness because he has made very contradictory statement. He also stated that Sanjoy Nag was also not known to him earlier and, therefore, Sanjoy was apprehended only on the ground that he was suspected to be a thief. It is difficult to believe the statement of this witness because he has made very contradictory statement. He first stated that they apprehended Sanjoy Nag since they had information that Sanjoy Nag was connected with the kidnapping and murder of a minor child. Later, this witness stated that he did not know Sanjoy Nag earlier and, therefore, changed his statement and stated that Sanjoy Nag was apprehended only on the suspicion that he was a thief. 41. The statement of PW-25, Sukumar Chakraborty, is that about 2 1/2 years earlier when he was in sleep at his residence, he was woken up by some persons. These persons were PW-24, Dilip Das, Gopal Das and Parimal Podder. They had apprehended two persons Dulal Nag and Sanjoy Nag. This witness also states that these persons had informed him that they had apprehended Dulal Nag and Sanjoy Nag as they were connected in murdering a child. According to this witness, Sanjoy Nag confessed that he had kidnapped a child from Udaipur town. Thereafter, Sanjoy Nag was taken to Mirja Panchayat Office. There is virtually no cross-examination to this witness on the issue of Sanjoy Nag being brought to his house. The only question put to the witness is that Sanjoy Nag has not made any confessional statement. The other portion of his testimony has not been subjected to any cross-examination. This witness also states that he knew both Dulal and Sanjoy prior to the incident as they were known to him. However, in view of the conflict in the statement of PW-24 and 25, we are not taking into consideration the so called extra-judicial confession of accused Sanjoy Nag. Statement of accused Sanjoy Nag recorded under Section 164 Cr.P.C.:-- 42. With regard to the confessional statement of accused Sanjoy Nag recorded under section 164 of Cr.P.C., the relevant witness is PW-29, Subhas Sikdar. According to him, on 28.09.98, the C.J.M., Udaipur passed an order directing him to record the confessional statement of Sanjoy Nag alias Sanju. Sanjoy Nag was produced in his court on 02.10.98 by a Jail Warder. The witness states that he questioned Sanjoy Nag as to whether he was under any pressure to make confession or not. According to him, on 28.09.98, the C.J.M., Udaipur passed an order directing him to record the confessional statement of Sanjoy Nag alias Sanju. Sanjoy Nag was produced in his court on 02.10.98 by a Jail Warder. The witness states that he questioned Sanjoy Nag as to whether he was under any pressure to make confession or not. According to him, he gave time of one hour to Sanjoy Nag to reflect on the matter and Sanjoy Nag was kept in the court during that time and no police personnel was allowed to enter the court premises. Later, at about 2-30 p.m. he took Sanjoy Nag in his chamber and again questioned him if he wanted to make any confessional statement. Sanjoy Nag expressed his intention of making confessional statement. Thereafter, he recorded the confessional statement of Sanjoy Nag(Exbt.9). 43. We have gone through the statement (Exbt.9). He was specifically asked a question whether he had been tortured, but he replied in the negative. There is no doubt in our mind that the learned Magistrate followed the principles with regard to ascertaining the voluntary nature of the statement. The accused was also warned that if he confesses, he could be imprisoned for life or even death sentence could be imposed upon him. He was clearly informed that whether he confesses or not, he would not be sent to police custody, but would be kept in judicial custody. Thereafter, the court gave him time to reflect for one hour. Then the statement was recorded, in which Sanjoy confessed that he along with other two accused had hatched a conspiracy to kidnap the child and that later, they realized that if the child remained alive, he would be able to identify Pradip and the Juvenile. Therefore, they all decided that the child would have to be killed. Sanjoy brought a spade from the mother of Kamal Das and dug a hole and then while Pradip caught hold of the legs of the boy and the Juvenile caught hold of the hands of the boy, Sanjoy strangled him to death. Thereafter, they buried the child. We are of the considered view that it cannot be said that the statement of Sanjoy Nag was involuntary though it has been retracted. 44. Thereafter, they buried the child. We are of the considered view that it cannot be said that the statement of Sanjoy Nag was involuntary though it has been retracted. 44. After reviewing the entire law and discussions held in detailed above, we are of the considered view that the voluntary confessions were made by the accused Pradip Sharma and Sanjoy Nag to the Judicial Officers, though it is true that these confessions were retracted later on. Recovery of spade:-- 45. To prove the recovery of the spade, the prosecution mainly relies upon the statement of PW-13, Smt. Jyotsna Bala Das. She stated that she knew Sanjoy Nag and in the month of Bhadra, Sanjoy had come to her house asking for a spade. In the afternoon, Sanjoy returned the spade, but the handle was broken. She fitted a new handle on the spade. Next Monday, the police came to her house in search of the spade which she handed over to the police. There is virtually no cross-examination to this witness and her statement is totally reliable. There is no explanation by Sanjoy Nag as to why he borrowed a spade from her. Therefore, the recovery of the spade is also proved. (F) Last seen together:-- 46. With regard to this circumstance, the relevant witnesses are PW-15, 16, 18 and 37. PW-15, Hanif Mian, at the relevant time was the President of the Udaipur Auto Rickshaw Drivers' Syndicate. According to him, about 2 1/2 years earlier PW-37, Raju Roy, came to him and told him that he had seen a newspaper report in which there were photographs of two persons and it was alleged that these persons had kidnapped a child. Raju informed him that he had taken these two persons in his auto rickshaw. Similar is the statement of PW-16, Sajal Paul, the owner of the auto rickshaw. He states that PW-37, Raju, was employed by him as a driver in the auto rickshaw and then when Raju saw the photographs of the accused Pradip Sharma and the Juvenile in the 'Dainik Ganadoot' newspaper, he informed PW-16 that he had ferried these two persons along Sanjoy Nag and one small child from Jamtali to Mog Puskarini. Thereafter, the police was called. PW-37, Raju Roy, is the most important witness. Thereafter, the police was called. PW-37, Raju Roy, is the most important witness. He was the driver of the auto rickshaw, which was hired by Pradip Sharma and the Juvenile and later accused Sanjoy Nag and the kidnapped child joined them and they all travelled up to Mog Puskarini in the auto rickshaw. His version is that on 09.09.98 at about 12/12-30 noon, two unknown boys approached him to hire his vehicle for giving a trip up to Mog Puskarini. The fare was settled at Rs. 35/-. These two boys told him that another passenger had to board the vehicle at Ramesh Chowmuhani. He left for Mog Puskarini with the aforesaid two passengers. On the way, at Ramesh Chowmuhani another person with a child aged 4 years boarded the auto rickshaw. He knew this third person, who was Sanjoy Nag. According to him, Sanjoy Nag was well-known as "mastan" (ruffian) of Mog Puskarini. He dropped all the three passengers and the minor child at Mog Puskarini and returned to Jamtali. There he came to know that one child had been kidnapped. After about 5/6 days of the incident, he saw the photographs of two persons in 'Dainik Ganadoot'. In the newspaper, it was written that these two persons had kidnapped a child. He could recognize the said two persons and, therefore, told PW-15 and 16 about the incident.Then the police was called. He was cross-examined by the accused and the main thrust of the cross-examination is that he had kept silent for about six days. In our view, the statement of PW-37 is totally reliable. On behalf of the accused, it is alleged that PW-37 did not know Pradip Sharma or the Juvenile. These two persons hired a vehicle. Later, Sanjoy Nag with the kidnapped child boarded his vehicle. He knew Sanjoy Nag who was a known gangster of the area. 47. It has been strongly urged by Mr. Datta that why did this witness keep silent for six days and it is also urged that both PW-15 and 16 had stated that prior to the date of seizure of the newspaper, this witness had not disclosed anything about the kidnapping to them. We see nothing unusual in this. How would an auto rickshaw driver know that the child whom he had transported in his vehicle was kidnapped? We see nothing unusual in this. How would an auto rickshaw driver know that the child whom he had transported in his vehicle was kidnapped? PW-37 came to know about this fact only when he saw the photographs of Pradip Sharma and the Juvenile in the newspaper. He immediately informed his employer as well as the President of the Syndicate. They were told by him about what had happened. Then the police was called. The statement of this witness has a ring of truth. He has not tried to falsely implicate the accused persons. His version appears to be just and reasonable. 48. The Apex Court in State of Rajasthan Vs. Kashi Ram, AIR 2007 SC 144, dealing with the issue of last seen held that when the deceased was last seen with the accused and he disappeared soon thereafter, the failure of the accused to offer any explanation was a circumstance which could be used against him 49. The Calcutta High Court in Uttam Rajbangshi & Ors. Vs. State of West Bengal, 2011 CRI.L.J. 928, held that when the deceased and the accused were last seen together in accompanying with each other and within a short period the deceased was found dead, the accused was bound to give some explanation in their defence. 50. The prosecution case must stand on its own feet and cannot rely only upon the lacunae in the case of the defence. However, if the prosecution proves certain facts and from those facts reasonable inference about the guilt of the accused can be drawn, then the accused must give an explanation as to what happens thereafter. 51. It is urged by Mr. R. Datta, learned counsel for the appellants, that the prosecution has failed to prove the case against the accused beyond reasonable doubt. It is submitted that suspicion howsoever great cannot take place of proof. We are of the considered view that the rule which requires the prosecution to prove the guilt of the accused beyond reasonable doubt cannot be taken to such an extreme that it would virtually become impossible to convict any criminal. 52. In Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 , the Apex Court held that where some facts are in the personal knowledge of the accused it is for the accused to explain what happened. 52. In Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 , the Apex Court held that where some facts are in the personal knowledge of the accused it is for the accused to explain what happened. Taking note of Section 106 of the Evidence Act, the Apex Court held that though the pristine rule is that the burden of proof is on the prosecution to prove the guilt of the accused but this rule should not be taken as a fossilized doctrine as though it admits no process of intelligent reasoning. The Court can draw reasonable presumption on the basis of evidence led before it. In cases where there are no eye witnesses, presumptions have to be drawn and the doctrine of presumption coexists with the rule that burden of proof is on the prosecution. 53. In Kirkan's case (supra) the Apex Court after examining a number of cases went on to hold as follows:-- 20. In Ram Gulam Chaudhary v. State of Bihar the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference. 21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. 54. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. 54. The Apex Court in State of West Bengal Vs. Mir Mohd Omar, (2000) 8 SCC 382 , held that if the traditional rule that burden of proof is on the prosecution is applied in a pedantic manner, the offenders of serious offences would be the major beneficiaries and society would be the causality. Therefore, once the prosecution proves certain facts the Court may be entitled to raise presumption from such facts. The Apex Court went on to hold as follows:-- 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a feet from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case. 55. In Krishnan & Anr. Vs. State, (2003) 7 SCC 56 , the Apex Court considered the question as to what is meant by the phrase "proof beyond reasonable doubt". The pertinent observations of the Apex Court are as follows:-- 22. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof is an exercise particular to each case. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof is an exercise particular to each case. Referring to/of probability amounts to 'proof is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II": Glanville Williams: Criminal Law Review, 1979, by Sweet and Maxwell, p. 340(342). The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather men innocent people who make confession, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other. 23. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehension. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the fudge. While the protection given by the criminal process to the accused persons is not be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. 56. The latest judgment in this regard is in the case of Iqbal Moosa Patel Vs. State of Gujarat, (2021) 2 SCC 198, wherein the Apex Court held as follows:-- 23. It is true that the prosecution is required to establish its case beyond a reasonable doubt, but that does not mean that the degree of proof must be beyond a shadow of doubt. The principle as to what degree of proof is required is stated by Lord Denning in his inimitable style in Miller v. Minister of Pensions(1947) 2 ALL ER 272: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence 'of course, it is possible but not in the least probable,' the case is proved beyond reasonable doubt.... 88. It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. 24. Reference may also be made to the decision of this Court in Sucha Singh & Anr. v. State of Punjab, (2003) 7 SCC 643 , where this Court has reiterated the principle in the following words: 20. Smelling doubts for the sake of giving benefit of doubt is not the law of the land. 24. Reference may also be made to the decision of this Court in Sucha Singh & Anr. v. State of Punjab, (2003) 7 SCC 643 , where this Court has reiterated the principle in the following words: 20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209 ). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. 57. A bare perusal of this judgment clearly shows that proof beyond reasonable doubt does not mean certainty, but only mean a very high degree of probability. Therefore, fanciful arguments or trivial issues raised for casting doubt on the evidence cannot be said to mean that the case has not been proved beyond reasonable doubt. As observed by the Apex Court, the doubt should be reasonable and not imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. 58. Coming to the fact of the present case, we are of the opinion that the prosecution has proved beyond reasonable doubt the fact that it was accused Sanjoy Nag who went to the house of the complainant and took away the minor child Buro on the pretext that he was to meet the mother of the child. Sanjoy Nag has been identified in the test identification parade. 59. Sanjoy Nag has been identified in the test identification parade. 59. It has been proved on record that Pradip Sharma and the Juvenile belonged to the same locality as the kidnapped child. 60. From the evidence of PW-37, it is proved that Pradip Sharma and the Juvenile hired the auto rickshaw and thereafter accused Sanjoy Nag along with the kidnapped child boarded the auto rickshaw at Ramesh Chowmuhani. 61. The recovery of the body at the instance of the accused is also proved beyond doubt. It is also proved that Sanjoy Nag borrowed a spade from PW-13, Smt. Jyotsna Bala Das and also returned the spade to her. There is no explanation as to why he needed a spade. 62. The prosecution has also proved the confessions made by Pradip Sharma and Sanjoy Nag. True it is that confessions, especially retracted confessions, are weak pieces of evidence, but when corroborated by the statement of PW-1, the test identification parade, the recovery of the body, the recovery of the spade and the statement of PW-37 with regard to last seen, the case is proved beyond reasonable doubt. We, therefore, find no merit in the appeal which is accordingly dismissed.