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2016 DIGILAW 721 (GAU)

Jitu Pegu alias Dilip v. State of Assam

2016-08-03

AJIT SINGH, N.CHAUDHURY

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JUDGMENT & ORDER (N. Chaudhury, J.) By the impugned judgment and order dated 04.03.2002 passed by learned Sessions Judge, Dhemaji, in Sessions Case No.50(DH)/2000, appellant Jitu Pegu along with one Paramananda Pegu were convicted under Section 302/365 IPC and both of them were awarded death sentence. After passing of the judgment on 04.03.2002 Jitu Pegu escaped from Jail and remained traceless till he was arrested on 18.11.2010 and thereafter the present Criminal Appeal from Jail was preferred on his behalf. Paramananda Pegu, in the meantime, had preferred Criminal Appeal No.227/2002 challenging his conviction and sentence. His appeal was heard along with Criminal Death Reference No.3/2002 and thereupon a Division Bench of this Court confirmed the death sentence in Criminal Death Reference No.3/2002 and dismissed the Criminal Appeal No.227/2002 preferred by Paramananda Pegu. Paramananda Pegu thereafter approached the Hon’ble Supreme Court vide Criminal Appeal No.1501/2003. The Hon’ble Supreme Court after hearing the appellant and the State of Assam allowed the appeal and set aside the conviction of Paramananda Pegu under Section 302 and 365 IPC. While deciding the present Criminal Appeal preferred by Jitu Pegu, the co-accused, we have the benefit of relying on the observations given by the Hon’ble Supreme Court against the same trial Court judgment and sentence in the appeal preferred by Paramananda Pegu. We shall refer to the observations made by the Hon’ble Supreme Court and take benefit therefrom as and when required. 2. The prosecution story in the present case is that Gogamukh Police Outpost received an ejahar on 29.06.1999 at 5.30 A.M. from one Basanti Taid who alleged that on the previous day at about 5.30 P.M. her son Rabindra Taid, aged about six years and her husband’s brother’s son Keshab Taid, aged about 10 years, went missing. The villagers searched for them throughout the night and at last at about 5.30 A.M. on 29.06.1999 the villagers found the dead body of Keshab Taid about a furlong away from their house under an overturned broken and abandoned boat in a channel. He was brutally killed and his limbs were tied but Rabindra Taid was traceless till then. She prayed for investigation into the matter. Upon receipt of the aforesaid ejahar police registered a case and visited the spot. The dead body of Keshab Taid was recovered and then sent for post mortem examination. He was brutally killed and his limbs were tied but Rabindra Taid was traceless till then. She prayed for investigation into the matter. Upon receipt of the aforesaid ejahar police registered a case and visited the spot. The dead body of Keshab Taid was recovered and then sent for post mortem examination. Accused Jitu Pegu was suspected as he did not participate in the search along with the villagers and moreover, he fled from the village on the following morning and ultimately police could arrest him from a village in Majuli. 3. In course of investigation, police recreated the scene with the help of the appellant and made recovery of silver chain of Rabindra. Deab body of Rabindra was recovered on a lead of Jitu. Confession of both the accused was recorded by Judicial Magistrate. Upon completion of investigation, police charge-sheeted both the accused under Sections 302/365 IPC. On being committed to Sessions, the learned Sessions Judge framed charges under the said provisions. The accused persons pleaded not guilty and claimed to be tried. 4. In course of trial prosecution examined as many as 29 witnesses and exhibited material exhibits like the silver chain. The accused, on the other hand, examined three witnesses including the two accused persons, namely, Jitu Pegu and Paramananda Pegu as DW 1 and DW 2. 5. PWs 1, 2 and 3 are the three minor boys who were playing with the two victim boys on 28.06.1999 at around 4.00 P.M. These three are students of Class-VII and deposed in the similar manner that at the time of occurrence they were students of Class-V. They were playing with the victims. PW 1 is Hare Krishna Doley. He stated that he along with PW 2 (Prasanta Pegu), PW 3 (Manjit Pegu) and the two victims were playing in front of the pig firm. At that time accused Jitu Pegu gave them 5 rupees and asked them to call the two victims. They did so and purchased dried gram with five rupees. Accused Jitu then called all of them including the deceased to a jamun tree and gave them jamun. When it was evening then Jitu asked them to go home by a path but did not allow Rabindra and Keshab to accompany. They did so and purchased dried gram with five rupees. Accused Jitu then called all of them including the deceased to a jamun tree and gave them jamun. When it was evening then Jitu asked them to go home by a path but did not allow Rabindra and Keshab to accompany. He said that he will send Keshab and Rabindra by a better path but Jitu also threatened them that he would cut him to death if he would tell this to anybody else in the village. Prasanta Pegu being PW 2 and Manjit Pegu being PW 3 narrated the same story and thus it is the case of the prosecution that the two victims, namely, Keshab and Rabindra were seen for the last time together with accused Jitu Pegu. 6. PW 4, Padma Nath Doley, is a teacher. He came to the witness box to say that he had participated in the search for the two victims but they could not be traced out. On the following morning when he left for Mora Subansiri Jan, a water channel, to oversee his fishing traps he found a dead body of a boy under a boat. PW 20, Manoj Pegu and PW 13 Maneshwar Pegu were with him and they informed Gogamukh Police Outpost about this. Police came, turned the boat and then it was found that the dead body was that of Keshab Taid. Subsequently an Executive Magistrate accompanied by police came and in presence of PWs 4 and 6 Jitu Pegu told the Magistrate that he had kept the silver chain of Rabindra at a place and thereupon police recovered the chain and it was seized. Ext-1 is the seizure list and Ext-1(1) is his signature whereas the silver chain is M. Ext-1. 7. PW 5, Smti. Basanti Taid, is the informant. She told that on the previous night when the villagers were searching for the victims Jitu Pegu did not participate in the search. She reiterated the story of having witnessed the dead body of Keshab under the overturned boat on being informed by the villagers and then she filed the ejahar. She deposed that Rabindra had a silver chain around his neck and M. Ext-1 is that chain. 8. PW 6, Robat Chandra Khandikar, is also a teacher. She reiterated the story of having witnessed the dead body of Keshab under the overturned boat on being informed by the villagers and then she filed the ejahar. She deposed that Rabindra had a silver chain around his neck and M. Ext-1 is that chain. 8. PW 6, Robat Chandra Khandikar, is also a teacher. He said that on 04.07.1999 police and an Executive Magistrate asked him to remain present and police brought Jitu Pegu, Paramanana Pegu and five others. Jitu led them to stilled watch house of village Dipa behind village Uriamguri and Jitu said that he along with others started Assam Tigers Force organization and they were carrying abduction and murder. Jitu showed the boundary drain where he had thrown the body of Rabindra Taid and he admitted to have killed Keshab. He also stated that Jitu recovered a silver chain in the yard of Padmanath Doley where had thrown it and handed over to police. Thus this witness supported PW 4, Padma Nath Doley, about recovery of silver chain on being led by accused Jitu Pegu. 9. PW 7, Labmbodhar Pegu, is the inquest witness of victim Keshab Taid. 10. PW 8, Ajay Kumar Patir, is the lecturer of a college. He deposed that police arrested Jitu Pegu and on being asked Jitu stated that Rabindra’s body was in the bamboo grove of Mahidhar Pegu. Jitu gave names of five youths who had participated with him. According to this witness, Rabindra Taid’s dead body was recovered as per Jitu’s statement and from the place shown by him. On cross-examination he reaffirmed that Jitu has made confession before them. 11. PWs 9 and 10 did not disclose much material fact except saying that Jitu Pegu did not participate in the search and he did not come out. 12. PW 11, Debajit Pegu, said that Jitu Pegu left the house on the following day of occurrence. While all the villagers participated in the search of the victim Jitu did not. 13. PW 12, Krishna Pegu, also stated that Jitu disclosed the place where Rabindra Taid’s body was hidden and the pieces of cloth found with the dead body of Keshab was that of trouser of Jitu Pegu. He proved Ext-5 as being the seizure list of these pieces of cloth. 14. 13. PW 12, Krishna Pegu, also stated that Jitu disclosed the place where Rabindra Taid’s body was hidden and the pieces of cloth found with the dead body of Keshab was that of trouser of Jitu Pegu. He proved Ext-5 as being the seizure list of these pieces of cloth. 14. PW 13, Maneshwar Pegu, could not disclose any information other than the fact that police shifted the body of Keshab from the place of recovery and he recognized the dead body to be that of Keshab Taid. 15. PW 14, Jiten Doley, specifically stated in course of deposition that Jitu Pegu did not join the villagers in search of the boys and so Jitu Pegu became a suspect. He fled to Majuli and was caught by police from there. Police recovered the dead body of Rabindra on being led by Jitu. 16. PW 15, Pushpa Pegu and PW 16, Bijoy Doley, stated that even on being asked by Sanjib Jitu did not participate in the search saying that he was feeling a pain in his chest. 17. PW 17, Ram Chandra Doley, who was not cross-examined by the accused persons, stated firmly that Rabindra’s dead body was recovered from a bamboo grove following the lead from Jitu and he signed the inquest report (Ext-6) of the dead body of Rabindra. His signature is Ext-6(1). 18. PWs 18 and 19 had nothing to add much. PW 20, Manoj Pegu, supported the story of PW 4, Padma Nath Doley, about discovery of dead body of Keshab. 19. According to PW 21 (Bhabananda Doley), there was a piece of cloth around Keshab’s neck and it was torn part of a pair of trousers. This cloth tallied with that of Jitu’s trouser and was found matching and so villagers started suspecting Jitu Pegu. It is this Jitu Pegu who informed that dead body of Rabindra was there in the boundary yards of Bokshiram Pegu and Mahindhar Pegu and accordingly Rabindra’s dead body was recovered. 20. PW 22 is the Additional Chief Judicial of Dhemaji who was examined to prove two very important pieces of documents, namely, the judicial confession of the two accused persons. He deposed that as per his direction the accused persons were produced on 06.07.1999 at 10.30 A.M. and having given them time for reflection he recorded the statement. 20. PW 22 is the Additional Chief Judicial of Dhemaji who was examined to prove two very important pieces of documents, namely, the judicial confession of the two accused persons. He deposed that as per his direction the accused persons were produced on 06.07.1999 at 10.30 A.M. and having given them time for reflection he recorded the statement. Ext-7 is the confessional statement of Jitu Pegu which is quoted below for ready reference :- “As early as in March this year, we, some youths, sat in a meeting in a field to start an organization, "Assam Tiger Force" by name. Those other than me were Paramananda, Kanta Pegu, Kanuram Pegu, Ajanti Pegu, Kirtinath Doley and Bhuban Nath. The organization started. I was the Secretary. Kanta Pegu was the President. That very day we decided at the meeting to kidnap Rebat Khanikar's son for ransom. All of us together we tried thrice, but could not kidnap the boy. Later we decided to kidnap Keshab Taid and Rabindra Taid, two minor boys of our village, for ransom. On 28-6-99 I sent for Keshab and Bhaiti (Rabin). I had engaged Prasanta, Manjit and Harekrishna of our village for the purpose. They (Keshab and Rabin) were playing. Then I took them to a jamu tree, saying that I would give them Jamu. It was then around 5.30. I detained Keshab and Rabin against their will and rebuked the rest three away. Keshab and Bhaiti wanted to leave, but I enticed them to stay on. Thereafter I called Parama Pegu in. We sat down there for a while. Then we learnt that the villagers were searching for the boys. Then I and Parama decided to kill the boys. Accordingly we tied Keshab's hands up and gagged him with paddy straw. Then we strangled him to death and threw the body into the nearby water. We then placed a boat on the body in overturned position. Parama took Bhaiti (Rabin) along and strangled him to death not far away. He threw the body to the 'dhap' (a raised ground along a boundary of a yard as per Translator) in the bamboo grove. Then we left the place. On Wednesday I went to Barpamua in Majuli where the police arrested me." 21. PW 23, Dr. R. K. Barkataky, being Senior Medical & Health Officer, held post mortem on the dead body of Rabindra. Then we left the place. On Wednesday I went to Barpamua in Majuli where the police arrested me." 21. PW 23, Dr. R. K. Barkataky, being Senior Medical & Health Officer, held post mortem on the dead body of Rabindra. He proved Ext-8 as the post mortem report. 22. PW 24, Dr. Jamadogni Upadhyay, another Senior Medical & Health Officer, held post mortem over the dead body of Keshab Taid, aged about 9 years and prepared the Ext-9 post mortem report. According to him, death occurred to Keshab Taid due to comma following brain injury and/or asphyxia following air way obstruction at neck. The evidence of this witness shows that there are two haematomas on the scalp of victim Keshab. There were abrasions on his neck in its front side and neck. Muscles and larynx with tongue was found to be congested with blood. 23. PW 25, Suvam Pegu, stated the same story and reaffirmed that Jitu Pegu showed the place he had hid the chain. Thus, discovery of M. Ext-1 on the lead of Jitu stood corroborated by PW 25 along with other witnesses as referred to above. 24. Ramesh Pegu (PW 24) stated on oath that accused Jitu Pegu and Paramananda Pegu led the Magistrate, the police and others including him to the place at where they had done their job. He said that Jitu confessed to them about committing murder of Rabindra and Keshab along with Paramananda. 25. PWs 27 and 28 had nothing to add to the story. But PW 29, Sibaram Morang, is the investigating officer of the case who stated that during investigation he visited the house of Jitu Pegu suspecting that he could have committed the crime. At around 8.00 A.M. on 30.06.1999 he could learn that Jitu was fleeing towards Majuli and ultimately Jitu was apprehended at Majuli. Following his interrogation Paramananda and others were arrested. They stated that they had started an organization under the name and style of All Assam Tiger Force and as they need money to buy arms and ammunition they had kidnapped the two victims. However, out of fear being caught by the villagers they had killed the two boys by strangulating as the villagers had in the meantime been on search for the boys with lanterns and torches in their hands and the two boys tried to shout. However, out of fear being caught by the villagers they had killed the two boys by strangulating as the villagers had in the meantime been on search for the boys with lanterns and torches in their hands and the two boys tried to shout. Keshab’s dead body was hidden under a boat and Jitu volunteered to show the place where Rabindra’s dead body was dumped. He was present when police recreated the scene in presence of Magistrate who later on died during investigation and so could not be examined. 26. The two accused persons, namely, Paramananda Pegu and Jitu Pegu examined themselves as DW 1 and DW 2 when they denied to have committed any offence. But it is to be noted that in course of cross-examination Jitu admitted that he had given five rupees to buy chocolate when the boys including Keshab Taid and Rabindra Taid were playing. He thereafter took them to jamun tree and gave them jamun. So the story narrated by PWs 1, 2 and 3 about having seen the accused Jitu with the two victims for the last time stands admitted by accused Jitu himself in course of his cross-examination. He said so in his judicial confession before PW 22 which the Hon’ble Supreme Court found to have been duly and properly recorded while passing judgment in the case of Paramananda Pegu, a co-accused. Jitu, however, denied to have killed the boys in course of cross-examination, although he admitted that the story of giving five rupees to the boys on the date of occurrence in presence of other boys when they were playing. 27. DW 3 stated in course of evidence that he knows nothing about the incident. He was also arrested by police and he did not see the police beat up the two accused persons. He denied of any knowledge as to commission of evidence or recovery of dead bodies of the victims. 28. Both the witnesses i.e. DWs 1 and 2, were examined under Section 313 Cr.P.C. when they denied the allegations. Upon consideration of all these evidence the learned Sessions Judge passed impugned judgment and order dated 04.03.2002 holding both the accused persons guilty of charges under Sections 365 and 302 of the Indian Penal Code and after hearing them on sentence awarded death penalty. Upon consideration of all these evidence the learned Sessions Judge passed impugned judgment and order dated 04.03.2002 holding both the accused persons guilty of charges under Sections 365 and 302 of the Indian Penal Code and after hearing them on sentence awarded death penalty. In paragraph 14 of the judgment the learned Sessions Judge observed that the prosecution case is based on circumstantial evidence and there are as many as seven circumstances which established the two charges against the accused persons. Paragraph 14 of the judgment is quoted below for ready reference :- “14. Prosecution case, as it appears, rests on circumstantial evidence only. Circumstances are as follows :- (1) The accused and the deceased were last seen together on 28.6.99 at about 5 P.M. as stated by prosecution witnesses. (2) Recovery of silver chain of deceased-Robindra Taid by PW 29 and others from the place where the accuseds kept silver chain (Material Ext-1) which was being worn by the deceased –Robindra. (3) Accused Jitu Pegu fled away to Majuli. (4) Confessional statement made by the accused. (5) Extra-judicial confession made by the accuseds before PWs 25, 28 and 29 and some others. (6) Recovery of dead body of deceased-Robindra at the instance of accused-Jitu Pegu. (7) Opinion of Medical Officer (PWs-23 & 24).” 29. As mentioned above, after the aforesaid judgment of conviction was passed on 04.03.2002 accused Jitu Pegu escaped from Jail. However, accused Paramananda Pegu preferred Criminal Appeal No.227/2002 and this Court by judgment dated 17.07.2003 not only dismissed the Criminal Appeal but also confirmed death sentence in Criminal Reference No.3/2002. The accused Jitu Pegu could not be served with notice of the Criminal Reference and the matter was not brought to the notice of the Court by the District Jail authorities. Under such circumstances, the death reference was decided in the presence of Paramananda Pegu but in absence of Jitu Pegu. Paramananda Pegu, thereafter, preferred Criminal Appeal No.1501/2003 before the Hon’ble Supreme Court and his conviction was set aside. The Hon’ble Supreme Court noticed the confessional statement of Jitu Pegu and Paramananda Pegu and the seven circumstances referred to above. Coming to the first circumstance as to last seen together, the Hon’ble Supreme Court held that there was no evidence of Paramananda Pegu being seen with the victims. None of the boys were in the company of Paramananda on the evening of 28.06.1999. Coming to the first circumstance as to last seen together, the Hon’ble Supreme Court held that there was no evidence of Paramananda Pegu being seen with the victims. None of the boys were in the company of Paramananda on the evening of 28.06.1999. PWs 1, 2 and 3 categorically stated that it was Jitu Pegu who coaxed them to bring the boys Rabindra and Keshab and detained them with him and quipped to PWs 1 to 3 that they would be returning by a different route later. It was Jitu Pegu who allegedly gave them threat not to reveal it to others and nowhere the name of Paramananda was mentioned. Thus, the Hon’ble Supreme Court found that evidence of Jitu Pegu being last seen together with the accused exists. It does not exist insofar as Paramananda Pegu is concerned. 30. Coming to the second circumstance as to recovery of silver chain of Rabindra the Hon’ble Supreme Court held in paragraph 9 of the judgment that the second circumstance is also relatable to the first accused Jitu Pegu only. The recovery of silver chain of Rabindra was at the instance of Jitu Pegu but not Paramananda. Evidence of PWs 4 and 6 also support the prosecution story that silver chain or Rabindra was found and seized at the place shown by the accused Jitu Pegu. 31. The third circumstance as to escape of Jitu Pegu to Majuli did not have any reference to Paramananda Pegu and so there is no mention about the same in the aforesaid judgment of the Hon’ble Supreme Court. But it has been noticed from the evidence above that Jitu Pegu was present in the village on 28.06.1999 when the villagers had searched for the two boys. Jitu Pegu did not participate in the search. So far was good but suspicion against him grew in the mind of the villagers when they found that Jitu was fleeing towards Majuli by a bicycle on the following day. Ultimately, Jitu was arrested from a village in Majuli by police and then he made the disclosure of the offence. So, this circumstance as to escape from the village has been duly proved by all the witnesses as discussed above. 32. The fourth circumstance is the confessional statement of the accused persons. Ultimately, Jitu was arrested from a village in Majuli by police and then he made the disclosure of the offence. So, this circumstance as to escape from the village has been duly proved by all the witnesses as discussed above. 32. The fourth circumstance is the confessional statement of the accused persons. Here, in this case, the Hon’ble Supreme Court came to the finding in paragraph 17 as follows :- “Looking at the confessional statement (Ext.8) coupled with the evidence of PW 22, the then Addl. Chief Judicial Magistrate, Dhemaji, we have no doubt in our mind that the procedural requirements have been fulfilled. Inter alia, PW 22 deposed that after cautioning the accused that the confessional statement, if made, will be used in evidence against them, he gave three hours time for reflection during which the accused were kept in a room attached to the Court in the immediate presence of an office peon. PW22 further stated that it appeared to him that the accused made the statement voluntarily. A memorandum as required by sub-Section (4) was also recorded. Thus the first requirement for acting on a confession is satisfied but that is not the end of the matter. The Court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. ….. " 33. The Hon’ble Supreme Court, thus, had already had the occasion to adjudicate as to whether the confessional statement recorded by PW 22 were duly and properly made. In the present appeal the concerned confessional statement is Ext-7 and the same has been quoted above which would go to show that Jitu Pegu stated in no uncertain terms that he had given five rupees to the boys, viz., PWs 1, 2 and 3, for bringing the victims and then he gave them jamun. He also admitted to have killed Keshab by strangulating. Although this confession was subsequently retracted but fact remains that even in his cross-examination accused Jitu has admitted to have given five rupees to the boys when they were playing with the victims. So his confession as to being with the victims and PWs 1 to 3 gets corroboration from the evidence of PWs 1, 2 and 3. Although this confession was subsequently retracted but fact remains that even in his cross-examination accused Jitu has admitted to have given five rupees to the boys when they were playing with the victims. So his confession as to being with the victims and PWs 1 to 3 gets corroboration from the evidence of PWs 1, 2 and 3. The first circumstance of being last seen together with the victims as deposed by PWs 1, 2 and 3, therefore, stands established. 34. The Hon’ble Supreme Court having considered a catena of decisions on retracted confession held that retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But a conviction should not be based on a confession without corroboration. It is not a rule of law but only a rule of prudence. So confession at a given place if found to have been duly and properly recorded can form the basis of conviction if the same is true. There is no evidence anywhere that the accused persons were pressurized by police before recording of the statement. Rather, deposition of PW 22 shows that the accused persons were given sufficient time for reflection. The DW 3 himself being arrested along with the accused persons volunteered to say in the witness box that he did not see any torture on the accused persons. This being the position there is no material whatsoever on record to come to a finding that the judicial confession recorded by PW 22 was not voluntarily made. The Ext-7, therefore, which is a judicial confession of accused Jitu Pegu was voluntarily made before PW 22 and it was duly and properly recorded. 35. Accused Jitu Pegu narrated the vivid description of the commission of the offence in his confession. He said that he and Paramananda tied Keshab’s hands and gagged him with paddy straw and then he strangulated him to death and threw the body into the nearby water. Then a boat was placed on his body in overturned position. He also disclosed the spot where the dead body of Rabindra was there. As has been discussed above, from the evidence of PWs 4, 13 and 20 that M. Ext-1 silver chain of Rabindra was recovered on the lead of Jitu Pegu. Then a boat was placed on his body in overturned position. He also disclosed the spot where the dead body of Rabindra was there. As has been discussed above, from the evidence of PWs 4, 13 and 20 that M. Ext-1 silver chain of Rabindra was recovered on the lead of Jitu Pegu. The witnesses like PWs 8, 12, 14, 17, 27 and 29 deposed firmly that dead body of Rabindra was found out on showing by Jitu. So it is clear that it is Jitu who knew where was the dead body of Rabindra and where did the silver chain of Rabindra concealed. The confession made by him about dumping of the body of Rabindra and Keshab thus gets corroboration when it is established by the aforesaid witnesses that police found out silver chain and dead body of Rabindra on being shown by accused Jitu Pegu. It is Jitu Pegu who led to the discovery of the silver chain and the discovery of body of Rabindra and so his confession as to killing of Keshab and knowing the place of Rabindra’s dead body stands materially corroborated. 36. The extra judicial confession made before PWs 25, 28 and 29 has been now found to be untenable by the Hon’ble Supreme Court in the appeal preferred by co-accused Paramananda Pegu and so there is no necessity for discussing the same in the present appeal. 37. As has been pointed out above, the confession made by appellant Jitu Pegu before PW 22 has been materially corroborated by PWs 1 to 3 on the point of last seen together and by PWs 8, 12, 14, 17 and 27 on the point of recovery of dead body of Rabindra. Recovery of silver chain on the showing of Jitu Pegu has also been proved by PW 4 and PW 6. Thus, there is enough material corroboration of the judicial confession made by appellant Jitu Pegu before PW 22 and so the circumstances as referred to above have been duly established. All these circumstances only point towards an irresistible conclusion towards guilt of the appellant Jitu Pegu and no other conclusion can be drawn from this pieces of evidence. The conviction of Jitu Pegu, therefore, on both the charges under Section 302 and 365 IPC cannot be interfered with and the same stands upheld. 38. All these circumstances only point towards an irresistible conclusion towards guilt of the appellant Jitu Pegu and no other conclusion can be drawn from this pieces of evidence. The conviction of Jitu Pegu, therefore, on both the charges under Section 302 and 365 IPC cannot be interfered with and the same stands upheld. 38. Now the question arises as to whether the sentence of death penalty imposed on the appellant can be confirmed. The learned trial Court has not discussed the aggravating circumstances and mitigating circumstances to find out as to whether the case in hand falls in the category of rarest of the rate case warranting a death penalty and so an exercise to that effect is necessary. On the previous occasion while considering the death reference at the time of deciding the criminal appeal of co-accused Paramananda Pegu this Court noted that there are as many as seven aggravating circumstances in the present case and the same are quoted below for ready reference :- “(1) The accused persons caused the death of two human beings. (2) The victims were innocent and helpless children. (3) No act of the victims led the accused to cause death. (4) The entire society was aghast when it was discovered that two young lives have been extinguished in a cold blooded manner. (5) The accused persons believed in the philosophy of terrorism and wanted to adopt terrorism as a profession. (6) Human life is meaningless when the question of livelihood is taken by engaging in crime. (7) The motive of terrorism and killing was material gain of money.” 39. The learned Amicus Curiae, Mr. K. Goswami, appearing for the appellant, submits that there are some mitigating circumstances in favour of the appellant in the present case. According to him, following are the mitigating circumstances :- (1) The accused is only 24 years of age and comes from a very poor family who do not have any other person to support the old aged parents. (2) The accused persons did never intend to kill the victims. They wanted to collect money by way of ransom but killed the victims only when they were afraid of being caught by the villagers. (3) The co-accused Paramananda Pegu has already been acquitted. 40. Ms. (2) The accused persons did never intend to kill the victims. They wanted to collect money by way of ransom but killed the victims only when they were afraid of being caught by the villagers. (3) The co-accused Paramananda Pegu has already been acquitted. 40. Ms. S. Jahan, learned Additional Public Prosecutor, on the other hand, strenuously urges that here is a case where the accused persons had set up a terrorist organization under the name and style of ‘All Assam Tiger Force’ and they kidnapped the two victims for ransom so that they could purchase arms and ammunition. Had they been successful in the bid they might have caused more loss of life and property and thus the accused persons do not deserve any leniency whatsoever. The mitigating circumstances mentioned by the learned Amicus Curiae really are no mitigating circumstances at all. The accused persons had kidnapped the two innocent minors and then killed them. Kidnapping of innocent minor boys is a heinous offence and so in view of the law laid down by the Hon’ble Supreme Court in a catena of decisions including Vikram Singh and others vs. State of Punjab reported in (2010)3 SCC 56 it is a fit case for upholding the penalty of death sentence. She has also placed reliance in the judgment of Hon’ble Supreme Court in Henry Westmuller Roberts vs. State of Assam reported in (1985) 3 SCC 291 in this regard. 41. Having heard Mr. K. Goswami, learned Amicus Curiae and Ms. S. Jahan, learned Additional Public Prosecutor, we are of the view that the accused/appellant Jitu Pegu has committed the heinous offence by kidnapping and killing two minor boys of his own village only for greed of money. His plea that the boys were killed only after they became panicky as villagers were searching with lanterns and torches in their hands and the boys also tried to shout. This part of his statement in the confession, of course, goes to show that they did not intend to kill the boys at the beginning. Nevertheless, their objective was never a noble one. They wanted to purchase arms and ammunition with the ransom money definitely for terrorizing the people and acting against the law and order machinery. This part of his statement in the confession, of course, goes to show that they did not intend to kill the boys at the beginning. Nevertheless, their objective was never a noble one. They wanted to purchase arms and ammunition with the ransom money definitely for terrorizing the people and acting against the law and order machinery. In that view of the matter though the case in hand may not come within the clause ‘rarest of the rare cases’ in the light of the judgment of the Hon’ble Supreme Court in the case of Bachan Singh v. State of Punjab [ (1980) 2 SCC 684 ], Machhi Singh and others vs. State of Punjab [ (1983)3 SCC 470 ] and Mofil Khan and another vs. State of Jharkhand [ (2015) 1 SCC 67 ] we are of the view that the sentence may be modified to that of rigorous imprisonment for life but the accused appellant would not be entitled to any remission under Section 433A of the Cr.P.C., the Prison Act, the Jail Manual or any other statute and the rules made for the purpose of commutation and remission. Such a stand was taken by the Hon’ble Supreme Court in the case of Jayawant Duttatray Suryarao vs. State of Maharashtra [ AIR 2002 SC 143 ] and also followed in the case of Swamy Shraddananda (2) vs. State of Karnataka [ (2008) 13 SCC 767 ]. Although a doubt was expressed in the case of Sangeet and another vs. State of Haryana reported in (2013) 2 SCC 452 the doubt has been eliminated by the subsequent judgment of the Hon’ble Supreme Court in the case of Gurvail Singh alias Gala vs. State of Punjab reported in (2013) 10 SCC 631 and so it is permissible to modify the sentence of death penalty into life imprisonment by holding that appellant Jitu Pegu is not entitled to commutation or premature release under Section 433A of the Cr.P.C., the Prison Act, the Jail Manual or any other statute and the rules made for the purpose of commutation and remission. 42. The Criminal Appeal accordingly stands partly allowed. 42. The Criminal Appeal accordingly stands partly allowed. Conviction of the appellant Jitu Pegu alias Dilip under Section 302/365 of the Indian Penal Code stands modified to rigorous imprisonment for life with direction that he shall not be entitled to any commutation or premature release under Section 433A of the Cr.P.C., the Prison Act, the Jail Manual or any other statute and the rules made for the purpose of commutation and remission.