JUDGMENT : R.R. Prasad, J. These five criminal appeals as well as two criminal revisions, arising out of the same case, were heard together and are being disposed of by the common judgment. 2. The appellants namely, Gautam Dutta, Md. Imran Khan, Md. Nazir @ Manshedu, Kundan Gupta @ Kundan Prasad Gupta, as well as one Md. Safique (since acquitted), were put on trial on the accusation of kidnapping a minor boy-Atif Mustafa in furtherance of their common intention and then killing him and disposing of the dead-body in order to screen themselves from legal punishment. The trial court while acquitting Md. Safique did find the aforesaid appellants guilty of the charges and thereby the appellants-Md. Nazir @ Manshedu and Kundan Gupta @ Kundan Prasad Gupta were convicted for the offences punishable under Sections 364A, 302, 201, 364A/120B of the Indian Penal Code whereas appellants-Gautam Dutta and Md. Imran Khan were convicted for the offences punishable under Sections 364A, and 364A/120B of the Indian Penal Code vide judgment dated 30.1.2010 and thereupon appellants-Md. Nazir @ Manshedu and Kundan Gupta @ Kundan Prasad Gupta were sentenced to undergo rigorous imprisonment for life without there being any remission for the offence punishable under Section 364A, 302 and 364A/120B of the Indian Penal Code and to pay a fine of Rs. 10,000/-for each of the offence with default clause and further to undergo rigorous imprisonment for seven years for the offence punishable under Section 201 of the Indian Penal Code and to pay a fine of Rs. 5,000/-and the appellant-Gautam Dutta was sentenced to undergo rigorous imprisonment for life without there being any remission for the offence punishable under Sections 364A and 364A/120B of the Indian Penal Code and to pay a fine of Rs. 10,000/-for each of the offence whereas appellant-Md. Imran Khan was sentenced to undergo rigorous imprisonment for life for the offence punishable under Sections 364A and 364A/120B of the Indian Penal Code and to pay a fine of Rs. 10,000/-for each of the offence. 3. The case of the prosecution is that as usual on 9.10.2009 Atif Mustafa (deceased), Son of Gulam Mustafa Ansari (P.W.26) and Fatima Khatoon (P.W.25) had gone to Denobili school on the van being driven by appellant Gautam Dutta. When the informant-Gulam Mustafa Ansari (P.W.26) came home at about 9am on 9.10.2009 after doing night duty, he slept in the house. The case of the prosecution is that as usual on 9.10.2009 Atif Mustafa (deceased), Son of Gulam Mustafa Ansari (P.W.26) and Fatima Khatoon (P.W.25) had gone to Denobili school on the van being driven by appellant Gautam Dutta. When the informant-Gulam Mustafa Ansari (P.W.26) came home at about 9am on 9.10.2009 after doing night duty, he slept in the house. While he was sleeping, several calls were made on his mobile. At 2 O'clock the informant received a call on his mobile whereby caller informed him that his son has been kidnapped and demanded ransom of Rs. 5 lakhs. Thereupon, he immediately rang to the appellant-Gautam Dutta who informed that he is not able to trace out the child. Thereafter he along with his brothers-Ghulam Rabbani (PW12) and Md Akhtar Ansari (PW14) came to the school where also he received a call whereby ransom was demanded. On the same day, when at about 3:30pm information was given to Mr. Binod Kr. Gupta (PW27), Officer-in-Charge of Sudamdih police station regarding kidnapping of Atif Mustafa, he came to the school and recorded the fardbeyan (Ext.10) of the informant-Gulam Mustafa Ansari (P.W.26), wherein he narrated about the incident, as has been stated above, on the basis of which, a case was registered against unknown and a formal FIR (Ext.11) was drawn. 4. P.W.27-Investigating Officer himself took up the investigation during which he recorded the statements of the witnesses. In that course, upon getting some clue he interrogated appellants-Gautam Dutta and Md. Nazir @ Manshedu who expressed their ignorance and stated that they had nothing to do with occurrence. However, subsequently appellants-Md. Imran Khan and Md. Nazir @ Manshedu were arrested and the mobile of appellant-Md. Nazir @ Manshedu was seized under Seizure List (Ext.12). Investigating Officer took out the printout of the telephone numbers to which calls were made or received of the mobile of the informant and on verification it was found that the calls had been made on the day of occurrence on the mobile of the informant from the telephone booth. Upon taking appellants-Md. Imran Khan and Md. Nazir @ Manshedu on remand when appellant-Md. Nazir @ Manshedu was interrogated, he confessed his guilt and disclosed that he has kidnapped Atif Mustafa at the instance of appellant-Gautam Dutta. Upon taking appellants-Md. Imran Khan and Md. Nazir @ Manshedu on remand when appellant-Md. Nazir @ Manshedu was interrogated, he confessed his guilt and disclosed that he has kidnapped Atif Mustafa at the instance of appellant-Gautam Dutta. Further he disclosed that on 9.10.2009 appellant-Gautam Dutta brought the children from the bus and made them to get down near a temple. The other boys went to the school but Atif Mustafa was not allowed by appellant-Gautam Dutta to go to the school. Subsequently, appellants-Kundan Gupta and Md. Nazir @ Manshedu took Atif Mustafa on a motorcycle to Santhaldih, a lonely place, where his school bag was hided under the bush. Thereafter appellants-Kundan Gupta and Md. Nazir @ Manshedu took Atif Mustafa to Birsa bridge where he was strangulated to death and the dead body as well as clothes were thrown in the water. On getting such clue, school bag of the victim was recovered at the instance of the appellant-Md. Nazir @ Manshedu from Santhaldih in which name of the victim Atif Mustafa was there in all books and note books which were seized under Ext.15. On 15.10.2009 dead body as well as clothes of the victim were recovered at the instance of appellant-Md. Nazir @ Manshedu. 5. Upon recovery of the dead body, an inquest report (Ext.16) was prepared and the dead-body was sent for postmortem examination which was conducted by Dr. Vinit P. Tigga-P.W.7 who upon holding autopsy on the dead-body of the deceased found the following injuries:- Depressed multiple fracture of nasal bones and maxillary bones as well as skull on both sides along with fracture of zygomatic bones of both sides. Brain matter was completely drained out and missing. 6. The doctor issued postmortem examination report (Ext.2) with an opinion that the death was caused on account of injuries on skull and brain caused by hard and blunt substance. 7. In course of investigation, the Investigating Officer also seized the mobile of the informant under Seizure List (Ext.17). The said mobile has been marked as Ext.V. Meanwhile, the Investigating Officer recorded the statements of the witnesses. 8. On completion of the investigation, when the charge-sheet was submitted against these appellants as well as Md. Safique, cognizance of the offence was taken against them and in due course, when the case was committed to the Court of Sessions, these appellants as well as Md. 8. On completion of the investigation, when the charge-sheet was submitted against these appellants as well as Md. Safique, cognizance of the offence was taken against them and in due course, when the case was committed to the Court of Sessions, these appellants as well as Md. Safique were put on trial. 9. During trial, the prosecution in order to prove its case examined as many as 27 witnesses. Of them, P.W. 25-Fatima Khatoon (mother of the deceased) did testify that on the day of occurrence, Atif Mustafa had gone to school on a bus being driven by appellant-Gautam Dutta. When Atif Mustafa came out of the house to board on the school van, she saw appellants-Md. Nazir @ Manshedu and Md. Imran Khan standing over there and were smiling. Around 2 O’clock somebody made call on the mobile of her husband-Gulam Mustafa Ansari (PW26) and asked for ransom by saying that Atif Mustafa has been kidnapped. P.W26-Gulam Mustafa Ansari (informant) testified that while he was in the house, someone by calling on his mobile asked for ransom by saying that Atif Mustafa has been kidnapped. PW11-Gulam Murtaza Ansari and PW12Ghulam Rabbani (both brothers of the informant) on getting information that Atif Mustafa has been kidnapped reached at the house of the informant. According to PWs. 11, 12 and 26, they came to the school along with the appellant-Gautam Dutta where they were informed by the class teacher that Atif Mustafa has not come to school. While they were making inquiry, appellant-Gautam Dutta was continuously talking to someone. P.W.8-Chaitali Sen Gupta (Class teacher of the victim), P.W.9-Jaideep Chy, who had taken computer test, and P.W.17-Nemi Rehlan, who had taken math test, as well as P.W.18-Chandra Shekhar Francis, Vice Principal, Jr. Section, have testified that on 9.10.2009 Atif Mustafa had not attended the school. However, P.W.8-Chaitali Sen Gupta did testify that though Atif Mustafa has not attended the school but in the attendance-sheet wrongly his presence was marked. P.W.2-Khurshid Alam, P.W.4-Gopal Dhibar, P.W.5-Mohan Rao, P.W.6-Ram Kr. Verma, P.W.13-Md. Salim and P.W.16-Sagar Dhibar are on the point of recovery of the dead body and clothes of the deceased. According to them, dead body as well as clothes were recovered at the instance of appellant-Md. Nazir @ Manshedu. Similarly, P.W.19-Ram Narayan Choudhary, Police Officer, has testified that on the basis of confession made by the appellant-Md. Verma, P.W.13-Md. Salim and P.W.16-Sagar Dhibar are on the point of recovery of the dead body and clothes of the deceased. According to them, dead body as well as clothes were recovered at the instance of appellant-Md. Nazir @ Manshedu. Similarly, P.W.19-Ram Narayan Choudhary, Police Officer, has testified that on the basis of confession made by the appellant-Md. Nazir @ Manshedu, school bag, containing books and note books, were recovered. P.W.20-Chinmay Sarkar is also on the same point who has testified that at the instance of appellant-Md. Nazir @ Manshedu bag was recovered and was seized under Ext.8. P.W.21-Jitendra Dubey has testified that while he was at Birsa bridge, he saw appellants-Md. Nazir @ Manshedu and Kundan Gupta taking one boy towards Chandankiyari. Likewise P.W.23-Aamna Khatoon has testified that while Atif Mustafa was waiting for school bus to come, he saw appellants-Md. Nazir @ Manshedu and Md. Imran Khan together. According to P.W.3-Shakir Hussain @ Pinto as well as his brother-Md. Sayeed Anwar (P.W.22), it was appellant-Md. Nazir @ Manshedu who on 9.10.2009 at about 7:30am had taken motorcycle belonging to P.W.3 on the plea that he will be coming back within ten minutes but he did not return till 10:30am. Thereafter when he was asked on mobile to come, he came and left the motorcycle there in the house of Shakir Hussain. 10. After closure of the prosecution case, when the appellants were questioned under Section 313 of Cr.P.C. over the incriminating evidences appearing against them, they denied. 11. Thereupon, the trial court having regard to the testimonies of the witnesses as aforesaid did find the appellants guilty of the charges and accordingly recorded the judgment of conviction and order of sentence against them. However, accused-Md. Shafique was acquitted, as there was lack of evidence showing his involvement in the alleged offences. 12. Being aggrieved with the judgment of conviction and order of sentence, appellants namely, Gautam Dutta, Md. Imran Khan, Md. Nazir @ Manshedu, Kundan Gupta @ Kundan Prasad Gupta, preferred Cr. Appeal (D.B.) No. 328 of 2010, Cr. Appeal (D.B.) No. 223 of 2010, Cr. Appeal (D.B.) No. 249 of 2010 and Cr. Appeal (D.B.) No. 316 of 2010 respectively whereas the informant has filed Cr. Rev. No. 171 of 2010 and the State has filed Cr. Appeal (D.B.) No. 1115 of 2010 for enhancement of sentence from life imprisonment to death sentence whereas Cr. Rev. Appeal (D.B.) No. 223 of 2010, Cr. Appeal (D.B.) No. 249 of 2010 and Cr. Appeal (D.B.) No. 316 of 2010 respectively whereas the informant has filed Cr. Rev. No. 171 of 2010 and the State has filed Cr. Appeal (D.B.) No. 1115 of 2010 for enhancement of sentence from life imprisonment to death sentence whereas Cr. Rev. No. 185 of 2010 is directed against the judgment and order whereby accused-Md. Safique has been acquitted. 13. Mr. B.M. Tripathy, learned senior counsel appearing for the appellant-Gautam Dutta, submits that this appellant was the driver of the school bus who has been alleged to have conspired with the other accused persons and in furtherance of conspiracy it is said that this appellant picked up the victim-Atif Mustafa near his house but according to the case of the prosecution, the victim never reached to the school as P.W.9-Jaideep Chy and P.W.17-Nemi Rehlan have testified that on 9.10.2009 Atif Mustafa had not taken math test and computer test but the evidence of the class teacher-P.W.8-Chaitali Sen Gupta is otherwise where she said that she had marked Atif Mustafa present but subsequently she turned around and stated that she has wrongly marked in the attendance-sheet as present and in fact, she came to know at 1:30pm that Atif Mustafa has been kidnapped but this was stated by her to save the reputation and prestige of the school and thereby the prosecution failed to establish clinching that Atif Mustafa had never entered into the school. Further submission, which was advanced, is that the court while coming to the conclusion that this appellant was also in league with others has taken into account the evidence of P.W.1 whereby it has been testified that he at around 6–6:30am had seen appellants-Md. Nazir @ Manshedu and Gautam Dutta in front of the house of appellant-Kundan Gupta but according to him he had seen on 8.10.2009 and not on 9.10.2009. In this situation, this appellant deserves benefit of doubt. 14. Mr. Rajesh Kumar, learned counsel appearing for the appellant-Md. Nazir @ Manshedu, submits that keeping in view the testimony of P.W.8 it can easily be said that the victim Atif Mustafa had attended the school on 9.10.2009 and that it has also been taken by the court keeping in view the testimonies of P.Ws. 14. Mr. Rajesh Kumar, learned counsel appearing for the appellant-Md. Nazir @ Manshedu, submits that keeping in view the testimony of P.W.8 it can easily be said that the victim Atif Mustafa had attended the school on 9.10.2009 and that it has also been taken by the court keeping in view the testimonies of P.Ws. 11 and 12 (both uncles of the victim) and P.W. 26 (father of the victim) that it was the appellant-Md. Nazir @ Manshedu who had asked for ransom on telephone. It is only guesswork of the witnesses that it was the voice of the appellant-Md. Nazir @ Manshedu. Voice though had been recorded but the prosecution failed to get it established as the voice of the appellant was never matched with the recorded voice by an expert. Further, it was submitted that P.W.21-Jitendra Dubey has said that he saw this appellant and appellant-Kundan Gupta at Birsa bridge, but his assertion never gets corroboration from any other witnesses and thereby the trial court should not have placed reliance upon the testimony of P.W.21, a chance witness. Further submission is to the effect that it is the consistent case of the prosecution that the recovery of the dead-body and also the school bag was made at the instance of this appellant but that remained unproved on account of the fact that the seizure list does not bear signature of this appellant and under the circumstances, the trial court committed illegality in recording the order of conviction and sentence against this appellant. 15. So far appellant-Md. Imran Khan is concerned, it is submitted by Mr. Swapan Manjhi, learned counsel appearing on behalf of him, that only two circumstances are there against this appellant; first is of being seen at 6:30am in the company of the appellant-Md. Nazir @ Manshedu but that cannot be taken to be the incriminating as appellant-Md. Imran Khan is of the same Mohalla and the other circumstance, which is there, is that this appellant told to P.W.14 that he has seen the victim at 10:50am but these circumstances do not complete the chain to form opinion that this appellant was also sharing common intention to kidnap the victim-Atif Mustafa and to kill him. 16. Mr. Imran Khan is of the same Mohalla and the other circumstance, which is there, is that this appellant told to P.W.14 that he has seen the victim at 10:50am but these circumstances do not complete the chain to form opinion that this appellant was also sharing common intention to kidnap the victim-Atif Mustafa and to kill him. 16. Mr. D.K. Prasad, learned counsel appearing for the appellant-Kundan Gupta, submits that this appellant has been convicted mainly on the evidence of P.W.21-Jitendra Dubey, a chance witness, who claimed to have seen this appellant along with the appellant-Md. Nazir @ Manshedu taking the deceased on the motorcycle. This witness seems to have made statement on 15.10.2009 and as such, it can be taken to be a delayed statement whereby concoction cannot be ruled out as the appellant-Md. Nazir @ Manshedu has been arrested on 10.10.2009 and thereby he could have made statement immediately after his arrest. Under the circumstances, the trial court should not have relied upon the testimony of the sole witness that too a chance witness and thereby the trial court did commit illegality in recording the judgment of conviction and order of sentence against these appellants which is fit to be set aside. 17. As against this, Mr. Indrajit Sinha, learned counsel for the Informant, submits that the circumstances, which have been fully established by the prosecution, are there to show that the appellant-Gautam Dutta, a bus driver, picked up the victim-Atif Mustafa near the house and took him to the school but the boy never reached the school which gets established from P.Ws. 8, 9 and 17 as well as from Ext.7, a attendance-sheet, showing the victim’s absence on the day of occurrence and that the conducts of the appellant-Gautam talking consistently on the mobile at the school and he being seen near his house in the company of the appellant-Md. Nazir @ Manshedu at 6-6:30am on the day of occurrence go to establish the culpability of the appellant-Gautam Dutta. Further, appellants-Md. Nazir @ Manshedu and Kundan Gupta were seen by P.W.21-Jitendra Dubey while they were taking the deceased on the motorcycle and immediately thereafter dead body as well as clothes were recovered at the instance of appellant-Md. Nazir @ Manshedu and thereby the conviction can easily be based on the last seen theory, as the proximity of the appellants-Md. Further, appellants-Md. Nazir @ Manshedu and Kundan Gupta were seen by P.W.21-Jitendra Dubey while they were taking the deceased on the motorcycle and immediately thereafter dead body as well as clothes were recovered at the instance of appellant-Md. Nazir @ Manshedu and thereby the conviction can easily be based on the last seen theory, as the proximity of the appellants-Md. Nazir @ Manshedu and Kundan Gupta being seen in the company of the deceased and the deceased being dead is so close and the possibility of committing murder by others does not arise and that appellant-Md. Imran Khan was also seen by P.W.23-Aamna Khatoon and P.W. 25-Fatima Khatoon near the house in the company of appellant-Md. Nazir @ Manshedu and thereby his complicity appears to be apparent. Further submission, which was made on behalf of the informant, is that the trial court committed illegality in acquitting the accused-Md. Safique in spite of the fact that accused-Md. Safique told the parents (P.Ws. 25 and 26) of the victim that appellant-Md. Nazir @ Manshedu was not in the house when the parent (P.Ws. 25 and 26) had come to inquire about the victim, though he was very much present and this appears to have been told with guilty mind and thereby one can come to the conclusion that he was also party to the conspiracy and thereby the order of acquittal as against accused-Md. Safique is fit to be quashed and be convicted and sentenced accordingly. Further submission, which was advanced on behalf of the informant, is that this is the case where innocent child aged about 10 years old was kidnapped and murdered and thereby it warrants the highest punishment by way of death penalty. 18. Having heard learned counsel for the parties and on perusal of the records, we do find that it is the case of the prosecution, as has been testified by the P.W.25-Fatima Khatoon (mother of the victim) and P.W.26-Gulam Mustafa Ansari (father of the victim), that on 9.10.2009 Atif Mustafa (deceased) was picked up by appellant-Gautam Dutta, a bus driver, but the victim never reached the school. At around 2 O’clock, the informant-P.W.26 received telephonic call by which time, P.Ws. 11 and 12 (both brothers of the informant) also reached there whereby ransom was demanded by informing that his son has been kidnapped. At around 2 O’clock, the informant-P.W.26 received telephonic call by which time, P.Ws. 11 and 12 (both brothers of the informant) also reached there whereby ransom was demanded by informing that his son has been kidnapped. Thereupon, all three witnesses came to the victim’s school and when made inquiry from the class-teacher-P.W.8 (Chaitali Sen Gupta) and P.W.18-Chandra Shekhar Francis, Vice Principal, Jr. Section, they told them that the boy has never come. P.W.8 though has said that the victim has not come in the school on that day but she has admitted that she had marked him present in the attendance sheet. Taking advantage of this, it was submitted on behalf of the defence that in fact the boy had reached the school and then before the school was over he went somewhere but this submission is not acceptable for the reason that not only P.W.8 has stated that the boy was not present P.W.9, even who has taken computer test, and P.W.17, who has taken math test on the same day, have stated that the victim was absent and this gets corroboration from the mark-sheet (Ext.7). Under the circumstances, if the presence of the victim has been marked by P.W.8 in the attendance sheet, that can be taken to be inadvertently. Thus it gets established that the victim boy, picked up by the appellant-Gautam Dutta, never reached the school rather he was kidnapped for ransom. 19. Further case appears to be that on suspicion when appellant-Md. Nazir @ Manshedu was arrested, he was taken on remand and he on being interrogated confessed his guilt that the victim boy has been kidnapped for ransom and that before he was murdered, his school bag containing books and note books had been thrown at a lonely place at Santhaldih and the dead body was thrown from Birsa bridge down the river. That confession led to recovery of the clothes and dead body of the deceased which gets established from the testimonies of P.Ws. 2, 4, 5, 6, and 13 who have categorically stated that the clothes and the dead body were recovered on being pointed by the appellant-Md. Nazir @ Manshedu. 20. Further, from the evidence of P.Ws. 19 and 20, it does appear that the confession made by the appellant-Md. 2, 4, 5, 6, and 13 who have categorically stated that the clothes and the dead body were recovered on being pointed by the appellant-Md. Nazir @ Manshedu. 20. Further, from the evidence of P.Ws. 19 and 20, it does appear that the confession made by the appellant-Md. Nazir @ Manshedu led to recovery of even school bag containing books, note books bearing the names of the deceased from a place known as Santhaldih. Not only that appellant-Md. Nazir @ Manshedu and also appellant-Kundan Gupta were seen taking the boy on a motorcycle at Birsa bridge by P.W.21. According to defence, P.W.21 does not appear to be trustworthy as he never disclosed about the said fact immediately when appellant-Md. Nazir @ Manshedu was arrested and thereby the statement delayedly made, may be an outcome of afterthought. The submission in the facts and circumstances appears of devoid of any merit, as this appellant may not be aware at all as to when the accused had been arrested rather according to his evidence, as soon as the dead body was recovered and had occasioned to see the dead body, he identified it and informed to the police. 21. The submission has also been made that the prosecution has not been able to establish that the dead body recovered was as that of Atif Mustafa which submission is also unacceptable, as it has been well proved that the clothes belonging to Atif Mustafa was recovered from the same place where the dead body was there and that P.W.26-father of the victim had occasioned to see the dead body though after postmortem. Thus from the evidences, it does appear that so far the appellants-Kundan Gupta and Md. Nazir @ Manshedu are concerned, their case apart from other circumstance also falls within the purview of last seen theory which comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than accused being author of the crime becomes impossible. Here in the instant case as we do notice that time gap in between the deceased being seen in the company of the appellants-Kundan Gupta and Md. Here in the instant case as we do notice that time gap in between the deceased being seen in the company of the appellants-Kundan Gupta and Md. Nazir @ Manshedu and the victim being found murdered is so little that possibility of committing murder by other than the appellants never does arise. 22. Thus, we do find that the trial court was justified in coming to the conclusion of the culpability of appellants-Kundan Gupta and Md. Nazir @ Manshedu of kidnapping the victim for the purpose of ransom and then committing murder and disposing of the dead body. At the same time, culpability of the driver-Gautam Dutta also gets established as has been found earlier that he though picked up the boy-Atif Mustafa from the bus for taking him to the school but the boy never reached school rather he was kidnapped for ransom. Before the appellant-Gautam Dutta picked up the boy for taking him to the school, he was also seen in the company of appellant-Md. Nazir @ Manshedu near the shop of appellant-Kundan Gupta by P.W. 1 at about 6-6:30am. P.W.1 in his evidence has said that the occurrence is of 9.10.2009 at about 6–6:30am Next sentence is that on 8.10.2009 when he returned from the duty, he saw this appellant in the company of appellant-Md. Nazir @ Manshedu. Since the date ‘8.10.2009’ has been used, submission is there that this appellant was never seen on 9.10.2009 at 6-6:30am. This submission is not acceptable for the reason that if one reads the evidence of P.W.1 cautiously, he would find that he had gone on duty on 8.10.2009 and only when he returned from the duty on 9.10.2009 he saw the appellant in the company of the other accused. 23. That apart, the conduct of the appellant-Gautam Dutta of not informing to the Principal or anyone points towards his guilt. It is only when P.W.26 came to the school along with P.Ws. 11 and 12, they called the appellant-Gautam Dutta in the school where it was found that the appellant-Gautam Dutta was busy talking constantly to someone by his mobile and that there he was in the state of nervousness. This conduct being admissible in evidence also indicates towards the culpability of this appellant. 11 and 12, they called the appellant-Gautam Dutta in the school where it was found that the appellant-Gautam Dutta was busy talking constantly to someone by his mobile and that there he was in the state of nervousness. This conduct being admissible in evidence also indicates towards the culpability of this appellant. Under the circumstances, we do find that the trial court was absolutely justified in recording the order of conviction and sentence against appellants-Gautam Dutta and Md. Nazir @ Manshedu. 24. Now coming to the case of Md. Imran Khan, he has been found guilty, as two circumstances are appearing against him; one is of being seen in the company of appellant-Md. Nazir @ Manshedu outside of the house of the victim-Atif Mustafa while Atif Mustafa was waiting for his school bus on 9.10.2009; and other one is that this appellant in order to mislead P.W.14 told him that he has seen Atif Mustafa outside of the school at 10:50am. The aforesaid circumstances were taken to be incriminating against the appellant-Md. Imran Khan for forming opinion that he was also in league with appellant-Md. Nazir @ Manshedu, as he was not the resident of the same Mohalla where appellant-Md. Nazir @ Manshedu and the informant were residing. The trial court did find him to be the resident of other place as nothing had come that he was the resident of same Mohalla but the address given by him in his statement made under Section 313 Cr.P. C. is the same as that of the address of P.W.25 and the informant (P.W.26). In such circumstance, it is quite possible that when he came out of the house, he came across appellant-Md. Nazir @ Manshedu accidentally and thereby the aforesaid circumstance never points towards the guilt of the appellant only and that other circumstance even if is taken to be true it never form chain of circumstances establishing the guilt of the appellant and thereby the trial court committed illegally in recording the order of conviction and sentence against the appellant-Md. Imran Khan. 25. So far as the matter relating to acquittal of accused-Md. Safique is concerned, we do also agree with the finding arrived at by the trial court that the circumstances appearing against him do not establish the guilt of accused-Md. Safique and thereby the trial court was absolutely justified in acquitting him of all the charges. 26. Imran Khan. 25. So far as the matter relating to acquittal of accused-Md. Safique is concerned, we do also agree with the finding arrived at by the trial court that the circumstances appearing against him do not establish the guilt of accused-Md. Safique and thereby the trial court was absolutely justified in acquitting him of all the charges. 26. Now coming to the point of sentence, it was submitted on behalf of the informant that the offence is very diabolical in nature and heinous in magnitude which shooks conscience of whole city of Dhanbad, as 7½ years old boy only son of his parent was kidnapped for the purpose of ransom and murdered and that the Hon’ble Supreme Court in number of cases did hold that the kidnapping for ransom and brutal murder of a boy comes within the expression of rarest of rare and thereby only sentence which calls for to be awarded is death penalty. 27. Learned counsel in this regard has referred to a decision in the cases of Mohan and others Vs. State of Tamilnadu, 1998 SCC Cr. 1308 and Henry Westmuller Robrts Vs. State of Assam, 1985 SCC Cri 364. Thus it was submitted that the convicts be awarded with death penalty. 28. As against this, learned counsel for the appellant-Md. Nazir @ Manshedu by placing reliance on the decision reported in 2008(2) EastCrC 270 (Pat) submits that absence of direct eye witness of kidnapping and murder of deceased boy aged about 14 years would not fall within the expression of rarest of rare cases. 29. Further, it was submitted that the death sentence calls for to be awarded only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the case. In support of the submission, learned counsel has referred to a decision in a case of State of Punjab Vs. Manjit Singh and others, 2009 (4) EastCrC 30 (SC). 30. Thus, the question does arise as to whether this case falls in the category of the rarest of rare case justifying capital punishment. It be stated that the Hon’ble Supreme Court in several cases has been pleased to confirm the capital punishment where kidnapping was associated with ransom after striking the balance between the aggravating and mitigating circumstances. 30. Thus, the question does arise as to whether this case falls in the category of the rarest of rare case justifying capital punishment. It be stated that the Hon’ble Supreme Court in several cases has been pleased to confirm the capital punishment where kidnapping was associated with ransom after striking the balance between the aggravating and mitigating circumstances. Several other factors like the young age of the accused the possibility of reformation, lack of intention to murder consequent to rape etc. have also gone into the judicial mind. 31. The Hon’ble Supreme Court in the case of Bachan Singh Vs. State of Punjab, (1980) 2 SCC 684 , while determining the constitutional validity of the death penalty was pleased to examine the sentencing procedure embodied in sub-section (3) of Section 354 Cr.P.C. and held as follows:- “164(b) While considering the question of sentence to be imposed for the offence of murder under Section 320 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.” 32. Subsequently, in a case of Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470 the Hon’ble Supreme Court has held as follows:- “The case fell in the category of the rarest of rare cases calling for capital punishment since the victim of murder was an innocent child who could not have or had not provided even an excuse, much less a provocation for murder or the murder was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner which aroused intense and extreme indignation of the community. The motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are factors which normally weigh with the court in awarding the death sentence terming it as the rarest of rare cases.” 33. The motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are factors which normally weigh with the court in awarding the death sentence terming it as the rarest of rare cases.” 33. Apart from those celebrated judgments, there has been long list of cases wherein the Hon’ble Supreme Court did find that in the nature of case of kidnapping for ransom death penalty is appropriate and in some cases taking into account the mitigating circumstances, it has been held that the death penalty is not justified. 34. Thus, there does not appear to be uniformity in policy of sentence. A data to this effect was collected and placed before the Hon’ble Supreme Court by Amnesty International India and People of Civil Liberties, Tamilnadu and Pondychery in connection with hearing of the case of Swami Sharadhanand @ Murli Manohar Mishra Vs. State of Karnatka, AIR 2008 SC 3040 whereby the Hon’ble Supreme Court taking into account the said fact did observe that the truth of the matter is that the question of death penalty is not free from subjective element and the confirmation of death sentence or its commutation by this court depends a good deal on personal predilection of judges constituting the bench. It was further held that the inability of criminal justice system to deal with all major crimes equally effectively and the want of uniformity in the sentencing process by the court lead to a marked imbalance in the end result. 35. In that view of the matter, the trial court taking into account the gravity of the offence and also the concept of uniformity in the sentencing process did find that the case never calls for awarding of capital sentence but at the same time, any punishment which would be inflicted must commensurate to the nature of the offence committed. 36. Under these circumstances, the trial court rightly sentenced the appellants-Kundan Gupta and Md. Nazir @ Manshedu to undergo rigorous imprisonment for life without any remission for the offence punishable under Section 364A, 302 and 364A/120B of the Indian Penal Code beside other sentence as has been stated above. 36. Under these circumstances, the trial court rightly sentenced the appellants-Kundan Gupta and Md. Nazir @ Manshedu to undergo rigorous imprisonment for life without any remission for the offence punishable under Section 364A, 302 and 364A/120B of the Indian Penal Code beside other sentence as has been stated above. Likewise, appellant-Gautam Dutta is sentenced to undergo rigorous imprisonment for life without any remission for the offence under Sections 364A and 364A/120B of the Indian Penal Code beside other sentence as stated above, which we do find, in the facts and circumstances, quite appropriate commensurating the offences committed by them. 37. Thus, we do find that the prosecution has been able to establish its case beyond all reasonable doubts and thereby the trial court is absolutely justified in recording the judgment of conviction and order of sentence against the appellants namely, Gautam Dutta, Md. Nazir @ Manshedu and Kundan Gupta @ Kundan Prasad Gupta. 38. Accordingly, the judgment of conviction and order of sentence passed against the appellants namely, Gautam Dutta, Md. Nazir @ Manshedu and Kundan Gupta @ Kundan Prasad Gupta is hereby affirmed. 39. So far as appellant-Md. Imran Khan is concerned, he for the reasons assigned hereinabove seems to have wrongly been convicted. 40. Accordingly, the judgment of conviction and order of sentence passed against the appellant-Md. Imran Khan is hereby set aside. Hence, the appellant-Md. Imran Khan is acquitted of all the charges levelled against him and is directed to be released forthwith, if not wanted in any other case. 41. Consequently, Cr. Appeal (D.B.) No. 223 of 2010 stands allowed, whereas Cr. Appeal (D.B.) Nos. 328, 249, 316 & 1115 of 2010 stand dismissed. Further, Cr. Rev. (D.B.) Nos. 171& 185 of 2010 also stand dismissed.