SESSIONS CASE NO. 370(K) OF 2010 IN THE COURT OF ...

SESSIONS CASE NO. 370(K) OF 2010

IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE NO. 1, KAMRUP (METRTO) AT GUWAHATI

Present: Utpal Prasad. AJSAddl. Sessions Judge No. 1Kamrup (Metro) at Guwahati.

SESSIONS CASE NO. 227(K) OF 2006u/ss. 120(B)/364/364(A)/365/386/302/201/395/397/34 of the

Indian Penal Code, 1860

State through the CBI

-Vs-

1. Shri Sahadeb Chakma @ HurrhabaS/o RajendraR/o Village Mabobil,P. S. ManuDistrict Dhalai,State of Tripura

2. Shri Krishna Madhab ChakmaS/o Megnad ChakmaR/o MonuP. S. ChailengthaDistrict DhalaiState of Tripura

3. Shri Kalapunnu ChakmaS/o Shashubhushan ChakmaR/o Village BangamuraP. S. Longthrai ValleyDistrict DhalaiState of Tripura

4. Shri Rupdhan ChakmaS/o Indrasen ChakmaR/o Village LalcherraP. S. ChelengthaDistrict DhaalaiState of Tripura

5. Shri Sahadeb Chakma @ MasterR/o Brijmohan ChakmaR/o Village Gizacherra

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SESSIONS CASE NO. 227(K) OF


P. S. Longthravi ValleyDistrict DhalaiState of Tripura

6. Shri Battibura Chakma @ Hemendra ChakmaS/o Nandlal ChakmaR/o Village BhaicherraP. S. KatlicherraDistrict HailakhandiState of Assam

7. Shri Khagendra Chakma @ KhagenS/o Devraj ChakmaR/o Village ChoraibakP. S. KatlicherraDistrict HailakhandiState of Assam

8. Shri Ranjit Chakma @ Fora ChakmaS/o Daya Mohan ChakmaR/o Village BaicherraP. S. KatlicherraDistrict HailakhandiState of Assam

9. Md. Jamaluddin Majumdra @ Budul MianS/o Haji Saraafat AliR/o Village KillerbakP. S. KatlicherraDistrict HailakhandiState of Assam... … … … … … … … … … ... ... ...Accused.

Date of committal : 02.08.2006

Date of framing of charge : 21.05.2007

Addl. Charges added on : 03.12.2015

Dates of recording of Prosecution’s evidence : 18.06.2007, 19.06.2007, 12.07.2007,

13.08.2007, 17.08.2007, 04.08.2007, 05.10.2007, 06.10.2007, 08.10.2007, 09.10.2007, 10.10.2007, 13.11.2007, 14.11.2007, 15.11.2007, 28.11.2007, 29.11.2007, 30.11.2007, 01.12.2007,

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03.12.2007, 09.01.2008, 10.01.2008, 22.02.2008, 25.02.2008, 26.02.2008, 27.02.2008, 12.03.2008, 14.03.2008, 15.03.2008, 08.04.2008, 09.04.2008, 15.05.2008, 16.05.2008, 03.06.2008, 29.09.2008, 19.01.2009, 16.02.2009, 25.03.2009, 20.06.2009, 11.08.2009, 23.09.2009, 16.12.2009, 02.03.2010, 19.08.2010, 20.08.2010, 15.11.2010, 14.12.2010, 29.01.2011, 29.04.2011, 30.04.2011, 02.05.2011, 03.05.2011, 04.08.2011, 21.09.2011, 22.09.2011, 09.11.2011, 28.05.2012, 28.02.2013, 30.04.2013, 04.05.2016.

Date of examination of theaccused u/s 313 of Cr. P. C. : 30.09.2013, 01.10.2013, 09.10.2013,

21.11.2013, 13.12.2013, 07.01.2014, 08.01.2014, 17.01.2014, 29.01.2014, 07.02.2014, 28.02.2014, 05.03.2014, 06.03.2014, 11.03.2014, 12.03.2014, 19.03.2014, 24.03.2014, 28.03.2014, 31.03.2014, 02.04.2014, 08.04.2014, 17.04.2014, 23.04.2014, 08.05.2014, 26.05.2014, 27.05.2014, 16.06.2014, 17.06.2014, 23.06.2014, 25.06.2014, 11.07.2014, 18.07.2014, 19.07.2014, 23.07.2014, 01.08.2014, 08.08.2014, 13.08.2014, 01.09.2014, 03.09.2014, 19.05.2016.

Date of recording of defence evidence : None.

Date of hearing of argument : 04.06.2016, 18.06.2016, 02.07.2016, 14.07.2016.

Date of judgement : 04.08.2016.

LEARNED ADVOCATES WHO APPEARED FOR THE PARTIES

For the C. B. I. : Mr. A. K. Singh, Senior Public Prosecutor.

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For the accused : M/s A. Choudhury, Ms. N. Devi, Ms. D. R. Deka, Mr. S. Ahmed, Advocates.

J U D G E M E N T

1. Katlicherra police Station case no. 19 of 2004 was registered after a written

first information was lodged by one Shri Anil Chandra Deb alleging that his elder brother Pratul Chandra Deb, along with his driver Shri Munia Lohar and

Mohurer Md. Jalaluddin, was abducted at a place named Bhaicherra by some Riang extremist on 17.03.2004 at around 11.30 A. M. to 12 P. M. while they

were going to Bhairavi (in the State of Mizoram) on his (Pratul Deb’s) car bearing registration no. AS-24-1433. Investigations were, accordingly, begun

and several suspects were arrested. However, as the local investigation failed to make much headway into the case, pursuant to the order dated

12.04.2005 passed by the Honourable Gauhati High Court in PIL number 48 of 2004, the investigation of Katlicherra police station case number 19 of

2004 registered under sections 364A and 120B of the IndianPenal Codewas handed over to the Central Bureau of Investigation, vide RC-3(S)/2005

registered in SCB Kolkata Branch on 20.04.2005 and later, the investigation of the case was transferred to SCR-III, New Delhi, a Central Unit of the Central

Bureau of Investigation. After completion of investigation, the Central Bureau of Investigation filed charge-sheet against the first eight of the aforesaid 9

accused. The accused numbers 1, 2, 3, 4 and 5 were charge sheeted for having committed offences under sections 120B read with sections 364A and

302 of the Indian Penal Code and also for the substantive offences under sections 364A and 302 of the Indian Penal Code. The accused numbers 6 and

8 were charge sheeted for having committed offence under section 120B of the IndianPenal Coderead with section 364A and 302 of the IndianPenal

Code. The accused number 7 was charge sheeted for having committed the offence under section 120B of the IndianPenal Coderead with section 364A of

the said code. Later, the Central Bureau of Investigation filed supplementary

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charge-sheet against the accused number 9 for having committed offences

under sections 364A/302 read with section 120B of the Indian Penal Code. Materials were also found of involvement of other accused, namely, Kalijoy

Chakma, Nando Chakma, Kinachen Chakma and others however, the investigation were not complete and was still undergoing at the time the

supplementary charge sheet was filed.

2. The prosecution has set up the case that the victim Shri Pratul Deb (since

deceased) was born and brought up at Katlicherra in the State of Assam, and after education he went abroad and served as teacher in Ethiopia, Kenya,

Nigeria et cetera and later settled at London along with his wife and 3 daughters where he served as an Executive Officer for the British

Government Local Service till January, 1999, when he took voluntary retirement. While his family members had taken British citizenship, he

remained an Indian citizen and returned to Assam. It has been stated that in the year 2001, he had contested assembly elections in Assam from

Katlicherra constituency as a BJP candidate against his own brother-in-law Shri Gautam Roy, a congress candidate who later became a cabinet minister

in the Government of Assam. With a history of harassment by Shri Gautam Roy and his son Shri Rahul Roy, it is the case of the prosecution, that Shri

Pratul Deb started business of bamboo and was allotted 5 bamboo ‘mohals’ during 2002-03 by the Government of Mizoram vide its order dated

21.10.2002. It has further been stated that in his business, he used to be assisted by his Manager/Mohurer Shri Jalaluddin Majumdar (P. W. 1), and his

driver Munia Lohar (Santosh). It has been stated that Shri Pratul Chandra Deb used to go to Bhairavi (in the State of Mizoram) by road in his vehicle

once or twice a week and used to stay with his driver and the Manager. It has further been alleged that during investigation, it was found that a quarrel

had taken place at Chauranga between Shri Pratul Deb and the accused number 9 over purchase of bamboos sometime in the month of

January/February 2004. It has been stated that the accused number 9 is a

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business associate of Shri Rahul Roy. The prosecution has stated that on

17.03.2004, at around 9 AM, Shri Pratul Chandra Deb left for Katlicherra in his Mahindra Commander jeep along with his driver Shri Munia Lohar and

manager Jalaluddin Mazumdar and on the way to Bhairavi in Mizoram, while they were passing through Bhaicherra Hills, two armed persons in army

fatigues, standing on the side of the road signalled them to stop and on instructions from Shri Pratul Chandra Deb, the driver stopped the vehicle. It

has been stated that as soon as the vehicle stopped more persons emerged and surrounded the jeep. In the meantime, two motorcycle borne persons,

namely, Ataur Rahman Laskar and Sungul Ali Laskar, reached the spot and they were also forced inside the jeep by the abductors and the jeep was

taken on a Kutchcha path ascending on Bhaicherra Hills. After sometime, the jeep was abandoned and while all of them, the abductees and the abductors,

were walking, they came across a bamboo worker named Sadhan Nath and he was also forcibly taken along by the abductors. The victims were taken

inside jungle and all the gold jewellery put on by Shri Pratul Chandra Deb was snatched away by the abductors. The abductors then demanded ransom

for release of Shri Pratul Chandra Deb and early next morning, the two companions of Shri Pratul Chandra Deb and the two motorcycle borne

persons were released with a direction to Jalaluddin Mazumdar to pay the ransom in 3 days. Thereafter, the released persons went to Bhairavi and

informed the family members of Shri Pratul Chandra Deb whereafter, 1st

information was lodged with Katlicherra Police Station. It is further the case

of the prosecution that in the meantime, on finding the motorcycle abandoned at the site of the abduction, the police was alerted and,

thereafter, as the Commander jeep owned by Shri Pratul Chandra Deb was also found abandoned, suspecting foul play, the police had mounted a search

in the jungle to locate him which continued up to 11:30 PM without any avail. It has been alleged that Shri Protul Chandra Deb was abducted pursuant to a

criminal conspiracy hatched between the accused number 9 and the accused number 7 as an aftermath of the quarrel between the accused number 9 and

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Shri Protul Chandra Deb and that the accused number 9, namely, Jamaluddin

Majumdar @ Budul Mian, had offered the accused number 7, Shri Khagen Chakma, ₹1,50,000/- for abduction of Shri Protul Chandra Deb whereafter

the accused number 7 planned the abduction with the accused Kalijoy, Kalapunnu (the accused number 3), Sahadeb Chakma @ Master (the accused

number 5), Sahadeb Chakma @ Hurrhaba (the accused number 1), Krishna Madhab Chakma (the accused number 2), Kinachen, Ranjeet Chakma @

Phora (the accused number 8) Rupdhan Chakma (the accused number 4) and Nandu Chakma. It has further been alleged that after release of the 4

persons, Shri Protul Chandra Deb and Shri Sadhan Nath were taken further deep into the Jungle and the abductees were shown the route by the

accused Hemendra Chakma @ Battibura who was an associate of the accused Khagendra Chakma. It has also been alleged that the accused

Sahadeb @ Hurrhaba had instructed Hemendra Chakma @ Battibura to keep him informed of the movements of the police/CRPF et cetera. It has also

been alleged that after 3 days of abduction the accused number 7 had instructed the accused number 6 to inform the other abductors who had kept

Shri Protul Chandra Deb and Shri Sadhan Nath in confinement to kill them else no ransom would be recovered and they would be apprehended. It is

stated that thereafter, the accused number 6 went to the hideout of the other accused and informed the accused number 1, 2 and 3 that the police and the

Riangs (a tribe) were searching for them in jungle and that they should kill both the abductees and thereafter, as directed by the accused number 1, the

accused number 2, 3, 4, 5, Nandu and Kalijoy killed both the victims by strangulating them with the help of bamboo ropes made by cutting bamboo

as well as by beating near a nulla in Bhaicherra Jungle and the said information was conveyed to the accused number 8 by the accused number

7.

3. It has further been alleged by the prosecution that the accused had

continued negotiations with the family members of Shri Protul Chandra Deb

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with regards the quantum of ransom and ultimately a ransom of ₹ 5 lakh was

agreed upon and was paid in 2 installments to the abductors at Silchar bus stand and at Chauranga by the family members of Shri Protul Chandra Deb.

It has also been stated by the prosecution that the accused number 1, 2, 3, 4, 5, 6, 7 and 8, confessed to the crime before Judicial Magistrate and the

accused number 1 and 2 also led the investigators to discovery of the mortal remains of the 2 victims. Along with the mortal remains, personal belongings

of the 2 victims were also recovered and they were identified by the family members of the 2 victims. After scientific examination, the mortal remains of

Shri Protul Chandra Deb could be identified whereas in respect of the other victim, the same could not be confirmed. Test identification parade of the

apprehended accused was also conducted and the accused number 1, 2, 3, 4 and 5 were identified by the witnesses as their abductors. Weapons allegedly

used in crime were also recovered which were later found to be toy weapons.

4. After the charge sheets were filed, on perusal of the materials collected

during investigation and upon hearing both the sides, charges were framed against the accused number 9 under sections 120B/364 of the Indian Penal

Code and against the other accused persons under sections 120B/364/302/201 of the Indian Penal Code. The charges were read over

and explained to the aforesaid accused persons and, on they pleading not guilty thereto, they were put to trial.

5. Of the 54 witnesses listed in the charge sheet, the prosecution examined 37

witnesses who were cross-examined on behalf of the accused persons.

Thereafter, statements of the accused persons were recorded under section 313 of the Code of Criminal Procedure, 1973 by bringing in incriminating

circumstances obtaining in evidence to the knowledge of the accused and eliciting their responses thereto. As the accused persons declined to lead any

evidence of defence, the matter proceeded for argument and when it was at the stage of judgement, it was discovered that the supplementary charge

sheet was not exhibited and the concerned investigating officer was not

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examined. It was also discovered that, charges were required to be

altered/added in view of the materials on record and the same was done vide order dated 03.12.2015. Charges against all the accused Jamaluddin

Majumdar, Ranjit Chakma and Khagen Chakma were framed/re-framed/altered/added under sections 120(B)/364/364(A)/365/386 of the

Indian Penal Code. Against the accused Rupdhan Chakma, Ranjit Chakma, Sahadev Chakma @ Master, Sahadev Chakma @ Hurrabha, Himanta Chakma

@ Batibura, Khagen Chakma, Krishna Madhab Chakma and Kalapunnu Chakma, charges under sections 395/397/302/201/34 of the Indian Penal

Code were framed/re-framed/altered/added in addition to the charges already framed. As the investigating officer who had filed the supplementary

charge sheet against the accused number 1 had since died, the supervising officer of the investigation was thereafter examined as prosecution witness

number 37 for proving the supplementary charge-sheet and was discharged after cross-examination on behalf of the accused. This necessitated recording

of further statements of the accused under section 313 of the Code of Criminal Procedure, 1973 and the same was done. Again, the accused were

given the opportunity to adduce defence evidence which the did not avail and ultimately the arguments were heard from both the sides.

6. Learned Senior Public Prosecutor Shri A. K. Singh has submitted that the

prosecution’s case mainly bases itself on confessional statements of the

accused persons and on the test identification parade. He has submitted that confessional statements can be made basis of conviction if, found truthful. He

has also stated that the confessional statements stand corroborated by the prosecution witness numbers 1, 4 and 5. He has submitted that the

prosecution witness numbers 1, 4 and 5 are not only eye witnesses but also victims of the offences against him by the accused persons. He has

submitted that that the prosecution witness number 5 identified the accused numbers 2, 3, 4 and 5 clearly. He has also stated that other eye

witnesses/victims also identified some of the accused persons as the persons

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involved in abduction of Shri Protul Chandra Deb and they have corroborated

one another in all material particulars. He has argued that the fact that the accused number 1 and 2 made statements leading to discovery of the

skeletal remains of Shri Protul Chandra Deb and Shri Sadhan Nath also led to discovery of the personal belongings of the 2 deceased which were identified

by the family members with full sufficiency has lend credence to the story of the prosecution. He has stated that by way of DNA fingerprinting with

regards the skeletal remains of Shri Protul Chandra Deb and taking the same together with the report of the autopsy and the matching of his dental

records kept in hospital in England and confirmation that the pacemaker recovered along with the skeletal remains was implanted in the body of Shri

Protul Chandra Deb proved beyond reasonable doubt that the skeletal remain were of Shri Protul Chandra Deb and the fact that the abduction of the said

victim by the accused persons was proved and the skeletal remains were discovered, on being shown by the accused number 1 and 2 proved beyond

reasonable doubt that the accused persons were involved in killing of Shri Protul Chandra Deb. He has further stated that even though DNA profiling

could not confirm the skeletal remains for another person to be that of the victim Sadhan Nath, the fact that he was also abducted was proved beyond

reasonable doubt and that along with the skeletal remains the personal belongings and clothes of the victim Sadhan Nath were also found and that

after his abduction Shri Sadhan Nath has never been seen again proved beyond reasonable doubt that the 2nd deceased victim was also killed by the

accused persons after being abducted. In support of his contentions, he has placed reliance on the judgement of the Honourable Supreme Court in the

cases of Earabhadrappa alias Krishnappa Vs. State of Karnataka as reported in AIR 1983 SC 446, Shankaria Vs. State of Rajasthan as reported in AIR 1978 SC 1248, Harnath Singh Vs. State of Madhya Pradesh as reported in AIR 1970 SC 1619, Bharat Singh Vs. State of Uttar Pradesh as reported in AIR 1972 SC 2478, Rishipal Vs. State of Uttarakhand as reported in AIR 2013 SC 3641, and also in the

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judgements of some of the Honourable High Courts in the cases of Ramadhar Chamar & Ors. Vs. State of Bihar as reported in 1986 Cr. L. J. 684 (Patna), M. V. Mahesh Vs the State of Karnataka as reported in 1996 Crl. L. J. 771, State of Karnataka Vs. Rajan as reported in 1994 Crl. L. J. 1042, and Narayan Singh Amar Singh Vs. Unknown as reported in AIR 1965 MP 225.

7. On the other hand, learned Counsel for the defence, Shri A. Choudhury,

assisted by learned Advocate Ms. N. Devi, has submitted that the prosecution has not at all been able to prove its case and the charges levelled against the

accused persons beyond reasonable doubts. He has submitted that the prosecution’s case is full of blemishes and the alleged genesis of the incidents

leading to the case is not believable. He has argued that the prosecution’s case was that there was a quarrel between the accused number 9

Jamaluddin Majumdar @ Budul Mian and Shri Protul Chandra Deb with regards entitlement of the later to the royalty for the bamboo that was being

carried on behalf of the former which, according to the prosecution’s case itself, was resolved and therefore, such a petty quarrel could not have

spiralled itself into such a huge conspiracy to abduct, Shri Protul Chandra Deb and ultimately to kill him. He has pointed out that the prosecutio’sn

evidence shows that when Shri Protul Chandra Deb was proceeding towards Bhairavi on the fateful day, he was to meet the accused number 9 and this,

according to the learned Counsel for the accused, shows that there was no ill will between the two and therefore, the theory of conspiracy having been

hatched by the accused number 9 and the accused number 7 for kidnapping Shri Protul Chandra Deb fails to inspire confidence. He has also submitted

that the confessional statements of the accused nos. 1 to 8 were not worthy of reliance and were tainted in view of retraction by all of the said accused at

the time of recording of the statements under section 313 of the Code of Criminal Procedure, 1973. He has submitted that it was clear from the

materials on record that the confessional statements were extracted under

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duress and that the accused persons were so brutally influenced by the

investigating agency that they could not overcome the fear psychosis even after several days’ time for reflection was granted by the concerned learned

Judicial Magistrate who had recorded the confessional statements under section 164 of the Code of Criminal Procedure, 1973. He has also argued that

the statements leading to recovery attributed to accused persons were obtained under duress and in fact there was no recovery on the basis of the

statement made by the accused and all the recoveries were stage-managed and not reliable. He has pointed out contradictions in the statements of the

witnesses to the recovery of the skeletal remains of the 2 deceased victims in the case who have given different time of reaching at the place of recovery

making the evidence as to recovery tainted and not worthy so much as to justify conviction of the accused persons of the offences they have been

charged with. He has further argued that the testimony of the prosecution witness number 32 clearly showed that the DNA profiling was not a cent

percent sure test and has also stated that it was not possible to obtain an uncontaminated DNA sample from the skeletal remains which were recovered

after considerable lapse of time and were exposed to weather and dust etc. He has also caste doubt upon the report of the DNA in view of the fact that

the similar test at the CDFD Hyderabad had failed to extract sufficiently large molecule of DNA so as to enable profiling to be done. He has also pointed

out the statement made by the prosecution witness number 32, stating that he has admitted that he had begun the DNA profiling even before the formal

letter of request was received by him from the investigating agency which shows that the DNA profiling was stage-managed and fabricated one and,

therefore, not worthy of basing any inference on it. He has stated that the prosecution did not deliberately examine the daughter of the victim the late

Protul Chandra Srimati Sipra Deb, at whose instance investigation was handed over to the CBI and who had made the allegation against the

Congress MLA and cabinet minister Shri Gautam Roy as the person involved behind kidnapping and murder of her father. He has argued that had she

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been examined, she would have exposed the deliberate nature of the

investigation done by the CBI, who, according to him, made all efforts to shield the real culprits and to implicate the present accused persons falsely.

He has pointed out that the charge-sheet submitted by the CBI itself states that evidence was found of bad blood between Shri Protul Chandra Deb and

Shri Gautam Roy and his son Shri Rahul Roy, and of Shri Rahul Roy having inflicted damage to the business of the said victim and of both father and son

duo having harassed the victim to such an extent that the matter was taken to the Honourable Gauhati High Court and direction was issued to the SP,

Hailakhandi for giving protection to Shri Protul Chandra Deb. He has stated that the entire investigation was aimed at shielding the main culprits behind

the offence alleged and has pointed out that the search being conducted to trace Shri Protul Chandra Deb on the day he was kidnapped, was abruptly

aborted at the instance of the SP, Hailakandi and that evidence is there on record to show the complicity of the said SP. He has also pointed out that the

evidence of the prosecution witness numbers 1, 3 and 4 shows that at the time ransom were paid to the kidnappers, the police was very much within

the reach of the culprits and despite that the police did not nab them which further shows how the investigating agency was hell bent in protecting the

real culprit whoever was behind the unfortunate incident and has stated that as the investigating agency has not presented the true facts before the

Court, the accused ought not to be convicted on the basis of the tainted and deliberate evidence on record. He has also pointed out that the prosecution

has not given sufficient explanation as to why the accused Upananda Riang was not sent for trial despite his having confessed to his guilt and

involvement in the case. He has stated that had the said accused been sent for trial, the investigating agency was afraid, that the persons, it was trying

to shield would have been exposed and the present accused, would not be successfully implicated in the case. He has argued that as the DNA profiling

was not reliable and that the pacemaker allegedly recovered after being shown by the accused number 1 and 2 did not contain the name of the

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patient on whose body the same was installed, the skeletal remains could

not, with certainty, be said to be of the victim late Protul Chandra Deb. He has also argued that the accused persons have given specific replies to the

questions put during their examination under section 313 of the Code of Criminal Procedure, 1973 and the stand of the accused was not of a flat

denial which shows that they were not lying and the statements under section 313 of the said Code can be taken into consideration and if seen in

the said light, the prosecution’s case fails to inspire confidence and therefore, the accused persons are liable to be acquitted in the instant case. In support

of his contentions, learned Counsel for the defence has placed reliance on the judgement of the Honourable Supreme Court as reported in AIR 1976 SC 2263, AIR 2006 SC 3236 (Khambam Raja Reddy Vs. state of Andhra Pradesh), (2001) 9 SCC 632 (Kalyan & Ors. Vs. state of Uttar Pradesh), AIR 1973 SC 2773 (Kaliram Vs. state of Himachal Pradesh), (1976) 1 SCC 20 (Bhagirath Vs. state of Madhya Pradesh), AIR 2004 SC 3055 (Bachchu Narayan Singh Vs. Naresh Yadab), (2013) 12 SCC 746 (Manjit Singh & Anr. Vs. the state of Punjab in another), AIR 2001 SC 2075 (state of HP Vs. Gian Chand), (2011) 2 SCC 188 (M. Nageswar Rao Vs. State of A. P.), and on judgements of the Honourable High Courts in the cases of Dipak Deb Barma Vs. State of Tripura [2010 GLT (Crl.) 136], 2009 Crl. L. J. 3904 (Orissa), Noor Islam Vs. State of Assam [2007 (4) GLT 18].

8. From the evidence recorded and the arguments advanced the following

questions emerge for determination by this Court:-

i. Whether the prosecution has been able to prove beyond reasonable

doubt that there was a conspiracy between the accused number 9 and the accused number 7 to kidnap the victim Shri Protul Chandra

Deb for ransom and that the other accused had become part of the said conspiracy later by coming to know the same and by executing

the same?

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ii. Whether the confessional statements of the accused numbers 1, 2, 3,

4, 5, 6, 7 and 8 are voluntary and truthful and can be relied on in support of the prosecution’s case?

iii. Whether the prosecution has been able to prove beyond reasonable doubt that pursuant to the above referred conspiracy the accused

numbers 1, 2, 3, 4, 5, 6, 7 and 8, along with several others, had kidnapped Shri Protul Chandra Deb for ransom?

iv. Whether the accused numbers 1, 2, 3, 4, 5, 6 and 8, along with several others had also abducted the prosecution witness number 1

and 4, namely, Md. Jalaluddin Majumdar and Shri Santosh Lohar as well as Shri Ataur Rahman Laskar, Sungul Ali and Shri Sadhan Nath,

after having developed common intention to do the same for the purpose of concealing their offence of kidnapping Protul Chandra Deb

for ransom thereby committing offence u/ss. 365/34 of the Indian Penal Code?

v. Whether the accused numbers 1, 2, 3, 4, 5, 6, 7 and 8, along with several others, had developed common intention to commit murder of

the victims Shri Protul Chandra Deb and Shri Sadhan Nath and had murdered them so as to commit an offence under section 302/34 of

the Indian Penal Code?

vi. Whether the skeletal remains could be proved to be that of late Protul

Chandra Deb and late Sadhan Nath?

vii. Whether the accused numbers 1, 2, 3, 4, 5, 6, 7 and 8, along with

several others had, after kidnapping the victim Protul Chandra Deb and after committing murder of the victims Shri Protul Chandra Deb

and Shri Sadhan Nath, tried to destroy the evidence thereof so as to commit an offence under section 201/34 of the IndianPenal Code?

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viii.Whether the accused numbers 1, 2, 3, 4, 5, 6, and 8, had committed

dacoity and had caused hurt to the victims during course of kidnapping and wrongful confinement of the victims?

ix. Whether the accused persons had extorted money from the family members of the victim Protul Chandra Deb by putting the said victim

in fear of death or grievous hurt pursuant to the conspiracy hatched?

x. What has to be the quantum of punishment to each of the accused

persons, if it is proved that they have committed any or more of the aforesaid offence?

The decision and the reasons therefor:-

9. Taking up the 2nd of the aforesaid points for determination, let us have a look

on the evidence on record.

10. It has been submitted on behalf of the accused that in view of the judgement

of the Honourable Supreme Court in the case of M. nageswar Rao Vs. State of A. P. as reported in (2011) 2 SCC 188, as the accused persons

have retracted and disowned the confessional statements stating that they were coerced by the CBI into giving the said statements and were severely

tortured while they were in custody and were threatened that their family members would be killed, the said confessional statements were liable to be

rejected. Learned Counsel for the defence has also placed reliance on the judgement of the Honourable High Court of Orissa as reported in 2009 Crl. L. J. 3904 which has laid down that statement made under section 164 of the Code of Criminal Procedure, 1973, on being produced from police

custody and in presence of police officer cannot be accepted. He has further argued that high-profile persons were allegedly involved in the case as per

the allegations made originally including a cabinet minister of the state of Assam and the SP, Hailakandi and, therefore, it was very likely that the

confessional statements were procured/extracted by coercion/undue influence and therefore, ought not to be relied on. On the other hand,

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learned Senior Public Prosecutor has stated that the confessional statements

were voluntary and recorded after observance of due procedure and after taking due care by the concerned learned Judicial Magistrate and have been

corroborated in all materials particulars by other ocular and circumstantial evidences and therefore, there is no reason why the confessional statements

should not be relied on. In support of his contention, he has placed reliance on the judgement of the Honourable Supreme Court of India rendered in the

case of Shankaria Vs. state of Rajasthan as reported in AIR 1978 Supreme Court 1248, in which it has been laid down that when in case the

prosecution demands the conviction of the accused primarily on the basis of his confession recorded under section 164 of the Code of Criminal Procedure,

1973, the Court must apply a double test:

i. Whether the confession was perfectly voluntary?

ii. If so, whether it is true and trustworthy?

11. From the record of the case. It is seen that it is an undisputed fact that the

confessional statements of the eight accused were recorded between 12.09.2005 to 26.10.2005. The accused number 1 and 2 were arrested on

29.08.2005 and were produced before the learned Judicial Magistrate on 10.09.2005, the accused number 3 was produced before the Court on

06.09.2005 on the strength of a production warrant, the accused numbers 4 and 5 were arrested on 10.09.2005, the accused number 6 was produced

before the learned Judicial Magistrate on 16.09.2005, the accused number 7 and 8 were produced in court on 11.10.2005 and after remand to police

custody, he was again produced on 25.10.2005. From a perusal of the confessional statements it is seen that all of them were asked whether they

had been physically tortured during the police custody and they had replied in the negative. It is also seen that it was explained to them that the said

accused were free not to make the confessional statement and that in the event they made the confession, the same could be used against them. It

was also intimated to them that after recording of confessional statement or

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even after refusing to give confessional statement they would not be sent

back to the police custody. It is seen that after explaining as above, the accused persons had volunteered to make their statements.

12. Shri Mahmud Ahmed, the then Chief Judicial magistrate, Dhubri, appearing as P. W. 9, has stated that on 10.09.2005 he was an Additional Chief judicial

Magistrate, Hailakandi and on that day, the accused number 1 and 2 were produced before him for recording of the confessional statements under

section 164 of the Code of Criminal Procedure, 1973 and that he had explained to each of the two accused separately, the consequences of

making the confessional statement and that they were not bound to make the confession and that if made, the same could be used in evidence against

them and thereafter, the 2 accused had pleaded for time for reflection and they were remanded to judicial custody with the direction to the

Superintendent, District Jail, Hailakandi to keep the two accused segregated from other under trial prisoners and to give them congenial atmosphere

within the jail premises to reflect upon the matter and it was directed that the two accused be produced on 12.09.2005 in the Court. He has further

deposed that on 12.09.2005 both the 2 accused persons, namely, Sahadev Chakma @ Hurrhaba and Krishna Madhab Chakma were produced before him

and he had explained to the accused that they were not bound to make the confessional statements and that the same could be used against them in

evidence and that if they wanted to consult an advocate, they were at liberty to do so. He has also deposed that it was explained to the 2 accused that in

the event they did not make the confessional statement, no action would be taken against them. He has deposed that the accused were determined to

make the confessional statements and thereafter, both the 2 accused persons were kept in the chamber of the said witness for further reflection and to

recall as to what had already happened. He has further deposed that police officers were removed from the scene and curtains of the room and the

windows were closed and the statements of the 2 accused were recorded. He

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has identified the record of the statement of the accused Krishna Madhav

Chakma as Exhibit 52 and Exhibit 53 as the record of the confessional statement of the accused Sahadev Chakma @ Hurrhaba. He has further

deposed that again on 15.09.2005. The accused number 3 and 5, namely, Kalapunnu Chakma @ Gunaban and Sahadeb Chakma @ Master, were

produced before him for recording of statement of the confession and they were similarly explained the rights of the accused qua the confessional

statement and the repercussions thereof and had sent them to the District Jail, Hailakandi with similar directions with further direction to produce the

accused before him on 16.09.2005. He has further stated that after observing the similar formalities, he had recorded confessional statements of the 2

accused. He has identified exhibit 59 as the record of the statement of the accused Sahadev Chakma @ Master, and Exhibit 58 as the record of the

statement of the accused Kalapunnu Chakma @ Gunaban. He has further deposed that on 25.10.2005, on the strength of the order of the concerned

learned Chief judicial Magistrate, the accused Khagendra Chakma @ Khagen and Ranjit Chakma @ Phora were produced before him for recording of their

confessional statements and after explaining their rights and repercussion of making a confessional statement, the 2 accused were sent to judicial custody

for reflection and were again produced before him on 26.10.2005, and after observing similar procedure, and, on finding that the 2 accused were

determined to make their confessional statements, he had recorded their confessional statements which he has identified as Exhibit 63 and Exhibit 64

respectively. During cross-examination he has stated that the accused numbers 1 and 2 were in separate rooms for reflection. He has stated that

one of them was kept seated in the chamber and the other was kept seated in the room of his steno. He has stated that at the time of recording

confession, none except the accused and him was present. He has stated that he was not aware if any person had entered into the room of the steno

and that the accused had not stated properly how many days they had been kept in custody of CBI. In examination in chief he has stated that after

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recording the statement of each of the aforesaid accused persons, he had

given certificate at the foot of the record of the statement that the statements made by the said accused persons were voluntary.

13. It is to be noted that during cross-examination no suggestion has been made that the aforesaid statements of the aforesaid accused persons were not

voluntarily. No suggestion has been given that the Learned Additional Chief Judicial Magistrate, Hailakandi had not taken due care to assure himself that

no coercion, duress or undue influence or inducement was practiced upon the accused by the CBI, or anyone, so as to induce them to make the

confessional statements. Even to the investigating officer, who was examined as prosecution witness number 35, no suggestion was given on behalf of the

accused that the accused were subjected to physical torture and coercion. It has not been suggested that the accused were in any manner forced to give

false confessional statements. It is also to be noted that till recording of the statement under section 313 of the Code of Criminal Procedure, 1973, the

accused persons had at no stage questioned the voluntariness of the confessional statements. It is to be noted that while the recording of

evidence of the accused began on 18.06.2007, recording of statement of the accused under section 313 of the said Code had started in the month of

September 2013 and in this 6 years, the accused had not retracted their confessional statements. The stand taken by the accused persons during

their statements under section 313 of the Code was not taken during cross-examination of the concerned witnesses and therefore, it is seen that the

stand of defence had not been consistent. In view of the above, this Court rules that the confessional statements of the aforesaid accused persons were

voluntary.

14. In his confessional statement, the accused number 7, Khagendra Chakma @

Khagen, has stated that the clerk of Shri Protul Chandra Deb had stopped the bamboo belonging to them and had stated that after Shri Protul Chandra Deb

came, the transaction with regards the bamboos would take place. He has

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stated that one week after that Protul Deb, Hari Mishra and persons of the

accused number 9 reached Chauranga. The bamboo was cut by the accused number 1 Sahadev Chakma @ Hurrhaba and was purchased by Budul Mian,

whereas the bamboos of Bhaicherra were under control of Protul Deb and that he used to purchase the bamboo of the labour contractor Hari Mishra.

The said accused has stated that the bamboo being in the area of Protul Deb, there was a heated exchange between him and the accused number 9. He

has stated that, Hari Mishra was contractor of Budul Miyan. After Protul Chandra Deb left the place, the accused number 9 had told him (the accused

number 7) to come to Gharmura on Monday and when he had gone their, the accused number 9 had taken the accused were 7 aside and had told him that

Protul Chandra Deb had earned handsome profit in his business and told him to kidnap him and assured him of payment of ₹ 1 lakh. Thereafter, the same

night, he told Gafur Ali of the conspiracy and he said that he had 5-6 persons and the job would be done. The next morning he also told Kalijoy about the

plan and he agreed to execute the same. Likewise, the accused number 6, Battibura Chakma @ Hemendra was also intimated of the same and he also

agreed to kidnap Protul Chandra Deb. He stated that, thereafter, Kalijoy, Kalapunna, Sahadeb @ Master, Sahadeb @ Hurrhaba, Krishna Madhab,

Kinachen etc. remained in his residence and Kalijoy had told Kinachen that arms would be required for the purpose. He has further stated that one fat

person arranged 2 pipes, and in the meantime Hurrhaba and Kalapunnu had left for the state of Tripura. After those weapons were made, he and Ranjit

Chakma informed Budul about the same and Budul assured them of paying an amount of ₹ one lakh. He has also stated that thereafter, Hurrhaba,

Kalapunnu, Krishna Madhav and Kalijoy had come together and the next Wednesday Protul Deb was kidnapped and on the same night Hurrhaba and

Krishna Madhav had taken 2 blankets, cooked rice from his house and he had sent Batti Bura with them to guide them in the jungle. He has further stated

that after 7 days Batti Bura informed him that Protul Deb had been killed and 3 days thereafter, he informed Budul Mian about the same on which the later

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said that he would not have to face any trouble. He has further stated that

after 15 days Hurrhaba had given him an amount of ₹ 20,000/- in the residence of the sister and Budul Mian had paid him an amount of ₹ 10,000/-

instead of ₹ 1 lakh and later, he paid a further amount of ₹ 5000/-.

15. In his confessional statement the accused number 1, Sahadev Chakma @

Hurrhaba has stated that he knew Khagendra from earlier and he had come to Tripura and had told him that work of bamboo was going on and asked if

he (the accused number 1) wanted to go to Bhaicherra whereafter, the accused no. 1, Kalapunnu Chakma, Sahadev Chakma @ Master, Rupdhan

Chakma , and Nand Chakma, came to Bhiacerra after staying in the State of Mizoram for 15 days. He has further stated that, Khagendra Chakma and

Ranjit Chakma @ Phora had told him that in the event Protul Chandra was kidnapped, they would get good amount of money. Thereafter, as there were

few numbers of persons with them, he called Krishna Madhav Chakma and his friend Kinachen Chakma and Kalijoy Chakma. He has further stated that,

as they did not have money to make gun, Khagendra Chakma assured him of arraigning for the same and showed him the materials required for making of

the gun whereafter, Krishna Madhav Chakma, Kinechan, kalijoy, Sahadev Chakma @ Master, made 3 big guns, and one pistol. Thereafter, Master

@Sahadev, Nand Chakma, brought army uniforms for which money was paid by Khagendra Chakma. He has stated that their plan continued for 15 days

and thereafter, as he said that he was not familiar with the area, there was no place where the abductee could be kept, the accused number 6 (Batti

Bura Chakma @Hemendra) told him that there was a place and he would keep the victim there. He has further stated that after that, all of them were

ready to kidnap Protul Chandra Deb. After making the guns, Kinachen had left for his residence and did not come back. Thereafter, according to the

accused number 1, he, Sahadev Chakma @Master, Krishna Madhav Chakma, Kalapunnu Chakma, Kalijoy Chakma, Rupdhan Chakma and Nand Chakma;

these 7 persons remained in the group and went for a reconnaissance on

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the Road near Bhaicherra and that it was a Tuesday and dusk at that time.

He said that at night he, Krishna Madhav Chakma, Kalapunnu Chakma went to the house of Ranjit Chakma and stayed there overnight and the next

morning again came back to the earlier place. He has also stated that every Wednesday there used to be a weekly market at Bhairavi. He states that the

Ranjit Chakma, had stated that he would signal when Protul Chandra Deb would be coming and thereafter, he (accused number 1), along with the

accused number 8 went on the road when at around 10-10:30 AM Protul Deb came on a jeep like vehicle. Thereafter, Krishna Chakma, Nanda Chakma,

Kalapunnu Chakma made their attempts. Phora Chakma (Ranjit Chakma) stated that the vehicle was coming and asked his companions to do ‘hands

up’. He states that at the time, Krishna Madhav, Nanda and Kalapunnu had guns in their hands and Kalijoy had a pistol and, thereafter, all of them

stopped the vehicle and Protul Deb was in the vehicle. He has stated that, thereafter, Ranjit Chakma escaped from there and at the same time two

persons came on motorcycle and they were also kidnapped and taken into jeep and thereafter, they proceeded on a Kuchcha path. After going some

distance the vehicle could not move further and its engine stopped whereafter, they started walking on foot taking the abductees with them. He

has further stated that while they were going, they found Sadhan Nath and Krishna Madhav Chakma, Kalijoy Chakma and Master Chakma could identify

Sadhan and took him along as well. He has further stated that they kept hiding inside a jungle in front of the house of Khagendra Chakma as it was

daylight.

He has further stated that he and his accomplices had taken away 8 rings

and one necklace from Protul Deb and what ever was there in the hand of the manager of Protul Deb. He says that at 7 PM he and Krishna Madhav

Chakma went to the house of Khagendra and brought rice, blanket and water and kept on the Railtrack. Thereafter, he brought all the kidnapped persons

near Railway line where he and his 6 accomplices discussed about the

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ransom demand and whether other kidnapped persons, apart from Protul

Deb ought to be released. After discussion, they arrived at an agreement that the ransom should be ₹ 50 lakh, and after some discussion is further, it was

reduced to ₹ 40 lakh. Thereafter, on precondition of payment of the said ransom amount within 3 days, the kidnapped persons, other than Protul Deb

and Sadhan Nath were released. He has further stated that, thereafter, Batti Bura took them inside the jungle where they remained the whole night along

with Protul Deb and Sadhan Nath.

He has further stated that after 3-4 days Battibura had again came and had

stated that the police persons and Riang people were in search for them and had advised them to leave the place. Thereafter, on discussions with the

accomplices, it was decided that Protul Dev and Sadhan Nath be killed and after hiding the dead body, they would extort the ransom amount.

He has further stated that, thereafter, Krishna Madhav Chakma and Sahadev Chakma @Master, made a bamboo rope and killed Protul Deb and Sadhan

Nath by strangulating both of them with the help of the said bamboo rope and thereafter, they put the dead bodies in a nullah and covered them with

bamboo wastes, leaves and stones and the accused Kalapunnu put on the shoes worn by the victim Sadhan Nath before leaving the place.

He has further stated in his confessional statement that thereafter he, Kalapunnu Chakma, and Krishna Madhav Chakma went to the house of

Khagendra whereas the other persons kept themselves hidden in the nearby jungle. He has also stated that on the day the ransom was to be paid, Batti

Bura had taken the 3 persons to the stipulated place but the manager of Protul Deb said that he was not able to arrange money and assured them of

bringing the ransom the next evening whereafter they returned. He has also stated that the next day, he found that 50-60 Riang people were searching

for them in Jungle and because of which he did not go to the manager of Protul Deb to receive the ransom and left for the State of Tripura. He has also

confessed that from Tripura he had telephoned at the residence of Protul Deb

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demanding ransom. He has also confessed that he had received an sum of ₹

2 lakh in Silchar and again, another ₹ 2 lakh.

16. The accused number 8 has stated in his confessional statement that one

month prior to the incident, Khagendra had asked him if he knew Protul Deb and on his replying in the negative he said that he would show him the

person and thereafter, in the weekly market in Bhairavi on Wednesday, he went to the said market. There, he met Khagendra and he showed Protul

Deb and his vehicle and stated that this person was to be kidnapped. He has further stated that after some days, Khagendra, on finding him with

Battibura, told him that his father had fallen down from roof of his house and told him to go to his house. Thereafter, when he was proceeding towards his

house, Battibura told him that that nothing had happened to his father and Khagendra had sent him (Hemendra) to take Ranjit for the purpose of

kidnapping Protul Deb. He has further stated in his confessional statement that, thereafter, both the 2 persons, went to the house of Khagendra Chakma

where Khagendra told him not to worry about as the bamboo businessman Budul Mian was with them. Thereafter, he has stated that, Khagendra called

him to the shop of the accused number 9 (Budul Mian) where he told the accused number 9 that he would point out the vehicle and in turn the

accused number 9, stated that he would pay an amount ₹ 1 lakh and told both of them to share the money equally and also assured them of help. He

has further stated that the next day, that is, on Wednesday, Khagendra showed him Protul Deb and his vehicle and the next Wednesday was fixed for

kidnapping of the said Protul Deb. He has further stated that the next week on Wednesday at around 2 AM, Sahadev Chakma @ Hurrhaba, Krishna

Madhab and two unknown persons took him to the main road where he met 3 more persons whom he did not know. After the night was over, Krishna

Madhav and 3 more persons hid themselves below and he along with Hurrhaba and another hid themselves on a mound (hillock). He further states

that at around 10 AM the vehicle of Protul Deb arrived and that he told his

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companions that it was his vehicle and blew the whistle and indicated to

Hurrhaba and thereafter, Krishna Madhab and 3 more persons stopped the vehicle and that he saw from the hillock that they had taken Protul Deb away

with his vehicle towards a Kuchcha Road whereafter he left for his residence and the next day, he went to the state of Mizoram. He further states that

after one month when he came back from the state of Mizoram, Khagendra had told him that Protul Deb had been killed.

17. Sahadev Chakma @ Master has stated in his confessional statement that

Krishna Madhav Chakma and Hurrhaba had brought him to Bhaicherra for

some discussion from the state of Tripura and had taken to the house of Khagendra where Hurhaba, Krishna Madhab, Kalijoy and Khagendra told him

that Protul Chaandra Deb was to be kidnapped and when he expressed his unwillingness, they gave him death threat whereafter, he also joined them.

He has stated that, thereafter, he, Krishna Madhab, Kalijoy, Rupdhan, Khagendra and Nand made the planning and when Hurhaba told that

weapons would be needed, Khagendra told that he would manage the same. Thereafter, he, Kinechan, Krishna Madhav and Kalijoy made 3 big guns and

one pistol. The same were sent through Khagendra and the weapons were kept by Hurhaba, Krishna Madhav and Kalijoy. He has further stated that,

thereafter, army uniform was brought for 3 persons. He further states that he, Nand, Kalijoy, Kalipunnu RUpdhan and Krishna Madhav had stayed in the

house of Khagendra and Khagendra had told them that Phora (Ranjit Chakma) would identify the vehicle and Hemendra (Battibura) would show

the path. He has further stated that the next day early morning, the group numbering 7 reached the place of kidnapping and Khagendra also came

there and left after sometime. Thereafter, Hurrhaba, Krishna Madhav and Kalijoy left for the residence of Phora after telling him, Rupdhan, Kalapunnu

and Nand to remain there. The said 3 persons, thereafter, came along with Ranjit Chakma. At around 10:30 AM to 11 AM after the vehicle reached and

Ranjit Chakma gave the signal and Krishna Madhav, Kalapunnu and Nand

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went and stopped the vehicle. At the same time, one motorcycle came with 2

persons. The 2 persons were also stopped. He states that at the time he and Rupdhan were on the hillock. Thereafter, the two motorcycle borne persons

and 3 occupants of the vehicle were kidnapped and the jeep was brought to the Kuchcha path. He has stated that at that time except Ranjit Chakma, all

the aforesaid persons were in the said vehicle. He states that after going for about 1-2 km, the vehicle stopped whereafter, the kidnappers and the

kidnapped persons started walking on foot. After traversing some distance, Sadhan Nath was found standing. He states that as Sadhan Nath knew

Krishna Madhav and Kalijoy, he was also taken away. He further states that after reaching the railway line near the residence of Khagendra Chakma, two

of the kidnappers remained there and others hid themselves. He has also stated that Krishna Madhav and Hurhaba brought water, rice and blanket

from the house of Khagendra and Hemendra had also arrived whereafter all the persons had taken food. Thereafter four persons were released and 2

were retained and all of them started moving on foot. He has stated that the manager of Protul Chandra Deb was directed to pay an amount of ₹ 40 lakh

within 3 days at Chauranga. He further states that thereafter, Hemendra led them inside the jungle and the next day he left them and the remaining

kidnappers went even deeper into the jungle. After 2 days’ stay there, Hemendra came and called Hurrhaba, Krishna Madhav and Kalijoy and after

sometime, the later three came back and told the others that police was about to discover them and therefore, the hostages should be killed.

Thereafter, on instructions from Hurrhaba, Krishna Madhav and Kalijoy took the 2 hostages near a dry Nullah. He further states that, thereafter, Krishna

Madhav blindfolded the 2 hostages with their own handkerchiefs. He further states that thereafter, Hurrhaba told Krishna Madhav and Kalapunnu to catch

hold of Protul Deb and him and Nand to catch hold of Sadhan Nath , which was done. Thereafter, with the help of the rope both were strangulated.

Kalapunnnu and Krishna Madhab strangulated Protul Deb , with the help of the rope and started pulling both the sites. He further states that while both

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the 2 hostages were being strangulated in the manner, Hurrhaba, kalijoy and

Rupdhan were hitting them with lances on their heads and other parts of the body and this process continued for 8-10 minutes whereafter, both the 2

victims died. He has further stated that, thereafter, the dead bodies of the 2 victims were covered with garbage and stones. He has further stated that

thereafter they went to the residence of Khagendra and then to the state of Tripura.

18. The accused number 3, Kalapunnu Chakma @ Gunaban has also stated the same thing in his confessional statement.

19. The accused number 2, Krishna Madhav Chakma has stated in his

confessional statement that one day in the residence of Khagendra Chakma,

he had met the accused number 1 and at that time Kalijoy Chakma and Kinecchan were with him. He states that, along with Hurhaba, Sahadev

Chakma @Master, Rupdhan Chakma, Kalapunnu, Arun Nanda Chakma, Khagendra and Phora (Ranjit Chakma) were also there and Phora and

Khagendra had told them that if Protul Deb was kidnapped good amount of money could be earned as he was a very rich person. He further states that

Hurhaba had said that necessary logistics would be made available for the purpose and thereafter plan was made. He further states that, thereafter, he,

Master, Kalijoy, and Kinechan made guns for which materials were provided by Khagendra and 3 big guns and 1 pistol was made. He states that for

purchase of the army uniform Khagendra had given an amount of Rs.2000/- whereafter Master, and one Bangladeshi person, along with Nanda Chakma

had arranged army uniform. He also states that thereafter, another meeting was held at the residence of Khagendra between him, Kalijoy, Kalapunnu,

Master, Rupdhan and the Bangladeshi Nand Chakma and Ranjit told them that he would indicate who was Protul Deb. He states that he came to know

that Protul Deb was to come at Bhairavi Bazar on Wednesday and planning was done 2-3 days before that day. He also states that when he asked as to

where the hostage will have to be kept as they were not familiar with the

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terrain of the jungle, Khagendra had told that a person named Batti Bura

would lead them to the hideout. He further states that on the night of Tuesday he, the accused number 1, 3, 4, 5, Kalijoy and Nanda had gone to

the place from where Proptul Deb was to be kidnapped and below an electric post on the Kuchcha path between Bhaicehrra and Ramnathpur, the accused

number 4, 5, Nand Chakma and Kalijoy stayed whereas he, Hurhaba, went to the residence of Ranjit Chakma and slept there. He also states that early in

the next morning they went near the electric post and met the other accomplices. He said that he, Kalapunu and Nanda had guns in their hands

and that Ranjit and Hurhaba went on the side of the road. After sometime, when vehicle was spotted coming, Ranjit Chakma, and Hurhaba gave the

signal and all the hiding persons came out, whereas the Ranjit Chakma escaped from the place whereafter, showing the weapons, they stopped the

vehicle. He further states that at the same time, 2 persons on a motorcycle also arrived and they were also taken hostages and thereafter, Protul Deb,

his manager and the driver and the 2 persons were taken hostages along with the jeep. He further states that as after going for about 1 to 1 ½ km the

jeep went out of order, all the hostages and the culprits alighted therefrom and went on foot and they came across a truck loaded with bamboo and

Sadhan Nath standing there who they knew from earlier and therefore, Sadhan Nath was also kidnapped. He further states that the hostages were

kept near Railway line. He states that thereafter, the accused number 1 asked them to check what valuables were with the hostages and thereafter, they

found money in the bag of Pratul Deb and they also took ₹ 1500/-from the 2 motorcycle borne persons. He also states that thereafter he and Hurhaba

brought drinking water, food and blanket from the house of Khagendra and after demanding ₹40 lakh for release of Protul Deb, his manager, driver and

the 2 motorcycle borne persons were released. He states that the manager of Protul Deb was asked to bring ₹40 lakh after 3 days at the place where

bamboos were kept.

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He further states that the accused number 6 took them to the hideout and

the accused number 1 sent the accused no. 6 outside for keeping an eye over the police movement and after 2 days, the accused number 6 came and

blew the whistle from a distance and the accused in the hideout could understand that police was soon to approach them. Thereafter, the accused

number 6, that is Hemendra told that they would be caught and advised them to kill the hostages and on the same day at around 7 to 7:30 PM, both

Protul Deb and Sadhan Nath were killed. He further states that Master had made a rope of bamboo and thereafter, both the victims were strangulated

by pulling both the ends of the ropes from each sides and both the victims were also hit with lances, and thereafter their dead bodies were kept in a

nullah.

20. The accused number 6 has stated in his confessional statement that on

Wednesday he had gone to Bhairavi market and had heard that some people have kidnapped Protul Deb and thereafter, he came back to his house when

at around 8 PM, Khagendra came to his residence and called him outside and told him to accompany him. Thereafter, both went and after some distance

Khagendra introduced him with Kalijoy, Kinachen, Nand, Kalapunna, Master@ Sahadev, Hurhaba @ Sahadev and Krishna Madhav Chakma and along with

these people Protul Deb and Sadhan Nath were also there, whom he already knew. Thereafter, he states, that Khagendra told him to lead them into the

jungle and told him that they had kidnapped the two persons for ransom and, after showing them way for about 2 ½ to 3 km, he came back to his

residence. He also states that Hurhaba had told him to keep an eye over police movement and to give information about the same. He further states

that, thereafter, on Friday Khagendra came and told him to inform the other kidnappers that, if the hostages were released they would not get any money

and they would get money only after killing them whereafter, he went to the hideout and told Hurhaba, Krishna Madhav, Kalapunnu that police personnel

and Riang people were in search for them and that Khagendra had told that

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they would get money only by killing Protul Deb. He states that thereafter, he

came back and after one week he came to know from Khagendra that Hurhaba, Krishna Madhav and Kalapunnu had killed Protul Deb and Sadan

Nath and that Khagendra had paid him an amount of ₹3000/-.

21. The accused number 4 Rupdhan Chakma, has stated in his confessional

statement that Kalijoy had taken him to the residence of Khagendra on Tuesday. He states that on that day at around 8 to 8:30 PM, while he was

sitting in the residence of Khagendra, Kalijoy, Sahadev @ Hurhaba, Krishna Madhav, Kalapunna, Master @ Sahadev, Khagendra and Nandu were

discussing something at some distance and thereafter, on being asked, Kalijoy told him that they were discussing a plan to kidnap someone and

thereafter, all of them including the accused number 4 went to the place where kidnapping was to be done as Kalijoy had told him to be with them.

He states that at the said place, he, Master, Kalijoy and Nandu slept for night and Kalapunna, Hurhaba, Krishna Madhav went to Bhaicherra and again

came back in the early morning. He states that he and Master were told to keep hiding on the sides the Road and Hurhaba, Kalijoy, Krishna Madhav,

Nandu and Kalapunnu went a bit apart and they hid themselves near Road. At around 10 to 10:30 AM on Wednesday on hearing the sound of the

vehicles, Hurhaba told that the vehicle was coming and thereafter, all of them attacked the vehicle. He states that 5 persons were sitting in the car, who he

did not know. He states that thereafter he, along with the other culprits and kidnapped persons, came on the said vehicle towards jungle and after

traversing some distance, the vehicle could not go ahead and thereafter, all of them started walking towards the jungle when they came across a truck

loaded with wood and a person was standing there whose name was stated to be Sadan Nath by Kalijoy and Master and that he knew them. As leaving

Sadhan Nath would have created trouble for them, he was also kidnapped. Thereafter, he states, one of the 6 kidnapped persons was Protul Deb and

that for his release, an amount of ₹50 lakh shall have to be given on which

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Protul Deb stated that he would try to give ₹30-40 lakh. He states that

thereafter, Hurhaba and Krishna Madhav took away 7-8 rings worn by him and one golden chain as well. He states that thereafter, Hurhaba and Krishna

Madhav brought some rice, drinking water and blanket from the house of Khagendra and after having meal, the Manager of Protul Deb told that he

would be paying money after 3 days at Chauranga whereafter, 4 persons were allowed to go. He states further that, thereafter all the culprits and the

2 hostages went along the railway line and went deep inside the dense forest and one person named Battibura came and he led the group to the hideout

and after leaving them there, he went away. He also states that after 2 days, someone blew whistle and thereafter Hurhaba, Krishna Madhav and Kalijoy

had some discussion with Battibura and after sometime, they came and told that Battibura had told them that Riang people were coming along with Army

and that they would be caught soon and that he has asked them to kill the two hostages. Thereafter, in his statement, he has described in what way the

2 victims were killed and their dead bodies concealed which tallies with the description given by the other accused persons.

22. It is seen that all the aforesaid accused persons have corroborated one another in all materials particulars. Now, let us see, whether their statements

find corroboration from other witnesses.

23. Prosecution witness number 1, Md. Jalal Uddin Mazumdar, the manager of

Protul Chandra Deb, has stated in his evidence that on 17.03.2004, Protul Chandra Deb had gone to Bhairavi along with him and the driver Santosh

Lohar as he usually used to go there on every Wednesday. He has stated that they started in the morning and after crossing Ramnathpur and while

reaching the hills of Bhaicherra, he saw 2 gunmen in army uniform coming from edges of the Road and signalling them to stop the vehicle, whereupon,

Protul Deb, under the impression that some security check was on, asked his driver Shri Santosh Lohar to stop the vehicle which was done and as soon as

the vehicle stopped, some other persons with dao and lance and another gun

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man surrounded the vehicle. He states that they were 8 in numbers. He has

stated that at that time, two young men came on a motorcycle and the 8 miscreants asked the motor cycle borne youths to sit in the vehicle of Protul

Chandra Deb, leaving the motorcycle on the Road. Thereafter, the two motorcycle borne youths and 2 gunmen also boarded the rear seat of the

Mahindra jeep while other gunman was standing on the footboard of the vehicle and directed the driver to take the vehicle to the Kuchcha road and

after going about 2 ½ to 3 km, the gunmen stopped them and directed them to alight from the vehicle and thereafter all the hostages were taken on foot

towards jungle. He further stated that while going so, he had spotted a stranded truck and a man who was cutting wood. After moving about 3

furlong more they found a person wearing shirt, pant, shoes and who was about 25 to 30 years of age and he was also taken hostage by the gunmen.

After moving some distance this witness came to know the name of the person to be Sadhan Nath of Ramnathpur. He says that thereafter, they were

taken inside the dense forest surrounded by hills and they had to go half a furlong further whereafter one of the miscreants had asked him to tell Protul

Chandra Deb to remove the gold ornaments he was wearing and to hand over the same to the gunman. He further states that thereafter they were

taken to a place which was surrounded by hills from all the sides and miscreants surrounded them there from all sides. He states that the place

must have been near some Railway track as he was hearing sound of train. The prosecution witness number 1 has further stated that thereafter, one of

the miscreants brought drinking water and blankets and provided them and thereafter, the miscreants demanded a ransom of ₹ 50 lakh for release of

Protul Chandra Deb on which Protul Chandra Deb replied that he was not in a position to pay that much has he had incurred loss in the previous year,

whereupon the miscreants reduced the demand to ₹40 lakhs. He also stated that miscreants had taken away gold ring and gold chain from the person of

Protul Chandra Deb and cash from the bag carried by him. He states that the victim had told him that he was carrying an approximate amount of ₹

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20,300/- in the said bag. He further states that the miscreants had given him

3 days time to pay the ransom at Chauranga situated at Bhairabi and took phone number of Sushil Dev, the brother of Protul Deb. He further states that

thereafter, miscreants had some discussion and then released all the 4 persons except Pratul Chandra Deb and took them to Railway line and

towards the dawn on the next morning, the miscreants allowed them to leave. It is to be noted that during cross-examination the above part of the

testimony of prosecution witness number 1 was not at all impeached and was rather reiterated.

24. Prosecution witness number 4 Santosh Lohar, the driver of Protul Chandra

Deb has stated in his deposition that on 17.03.2004 between 8:30 AM to 9

AM, he, along with Protul Chandra Deb and the prosecution witness number 1 had started towards Bhairavi and when they had proceeded 2 to 2 ½ km

further from Ramanathpur, he had seen 2 persons in army uniform standing on the Road and signalling them to stop. Thinking that there might be

security check going on, Protul Deb asked this prosecution witness to stop the vehicle and as soon as the vehicle was stopped the 2 persons came near

the vehicle and pointed their guns on the head of this prosecution witness and Pratul Deb and immediately thereafter, 5 to 6 more persons came out of

jungle and surrounded the vehicle and told them to take the vehicle towards Kuchcha Road towards jungle. This witness states that he told that the

vehicle could not move on the said road as it was too high and the miscreants give a blow on his abdomen whereafter he readied himself to go

up hill when he saw to motorcycle borne young men coming. He says that they moved about 2 to 2 ½ km but due to bad road condition the vehicle

could not move further and the miscreants made them alight from the vehicle and walk on foot towards the hill. He states that the miscreants had snatched

the key of the said vehicle from him and thereafter, they reached a low lying area where they were told to sit. He also states that at that place he had

heard the sound of train. He further states that thereafter, one of the

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miscreants brought drinking water and blankets and distributed the same to

them. He further states that the miscreants had demanded a ransom of ₹50 lakh for release of Protul Deb and 1 of the miscreants demanded the gold

ornaments worn by him and when he said that the same might have fallen somewhere, the miscreants gave a blow to Protul Deb on which the victim

handed over the Golden rings and chain to them. He has also stated that the miscreants had taken the money from the 2 young men who had come on

motorcycle and were kidnapped. During cross-examination this witness has stated that the miscreants had, initially, demanded a ransom of ₹50 lakh and

later, had reduced the same to ₹40 lakhs. He has further stated that the miscreants had assaulted Protul Deb. It is seen that the above testimony was

not questioned during cross-examination and he has corroborated the prosecution witness number 1 fully, so far as the part of the testimony

referred to above is concerned.

25. Prosecution witness number 5 Md. Ataur Rahman Laskar is one of the motor

cycle borne persons who is also alleged to have been abducted by the accused persons. He has stated that on 17.03.2004, he was going from

Madam Basti to Sahabad on his motorcycle with Changul Ali and when he reached near Bhaichera , he had seen a white coloured jeep standing on the

side of the road and had also seen some persons in army uniform and some in civil dress and he thought that some security check was going on. He says

that there were about 6 to 7 persons. He states that he stopped his motorcycle there and saw arms, lance, dao et cetera in the hands of the

persons surrounding the vehicle and he and his companion were also forced into the vehicle by them. He further states that he had seen 3 persons

already in the jeep of whom one was Protul Deb and the other was Jalaluddin. He says that he could not identify the driver by name. He goes on

to say that the miscreants forced the driver to take the jeep on Kuchcha Road towards jungle and as, after going some distance, vehicle could not

move further, all of them had to walk on foot towards jungle leaving the

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vehicle. He has said that he had left the motorcycle on the pitch Road. He

states that after covering long distance in jungle and hill, they reached a ditch like place surrounded by hills and that they were asked by the

miscreants to sit their and that it was around 3 to 4 PM in the afternoon. He further states that the accused persons took Protul Chandra Deb and

Jalaluddin aside and had some conversation with them and later, he could know that the accused persons had demanded a ransom of ₹ 40 lakh for

release of Protul Chandra Deb. He further states that the accused persons then arranged blankets and water and thereafter, the miscreants asked the

victim Protul Chandra Deb as to where had he kept his chain and rings and on the later replying that they might have fallen somewhere, the accused

had beaten him whereafter Protul Deb had directed the prosecution witness number 1 to hand over those ornaments to the miscreants. He also states

that miscreants had also taken away a cash amount of ₹ 1000/- he was carrying and a cash amount of ₹ 500/- his companion was carrying. He has

also stated that later, they agreed to return the money to him and took him to Railway line and released him along with his friend and the prosecution

witness numbers 1 and 4. He has also deposed that Sadhan Nath was also kept back by the miscreants along with Protul Deb. During cross-examination

he has stated that when he had stopped his motorcycle thinking that security check was going on, he had found 4-5 persons standing outside the jeep and

when he had stopped his motorcycle about 20 feet away from the jeep 2 persons had pushed him and the pillion rider from behind felling them on

ground from the bike. He has stated that there were 5 person sitting in the jeep when they were being taken towards jungle. It is seen that the

examination-in-chief referred to above has not been questioned during cross-examination and he has corroborated the prosecution witness numbers 1 and

4 in all materials particulars.

26. In his deposition prosecution witness no. 5 has identified the accused

Sahadev Chakma @ Master, Krishna Madhav Chakma, Kalapunnu Chakma,

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Rupdhan Chakma as persons who had taken them to jungle. He has also

stated that he had identified these accused persons in test identification parade in Hailakandi jail almost one to one and a half years prior to his

evidence. During cross-examination he has stated that prior to identification of the accused in jail he had no occasion to see the accused persons, and he

had not been shown the photograph of the accused. In cross-examination he has stated that at the time of the test identification parade 30 to 40 people

were mixed up with the accused persons in the line and all of them were wearing similar clothes of similar colour but their stature were different;

some were fat , some were tall, some were short in height and sum were thin. Suggestion has been given on behalf of the accused persons that this

witness, has falsely identified the accused and this witness has denied the same.

27. Prosecution witness number 1 has identified the accused Krishna Madhav Chakma, Sahadev Chakma @ Hurhaba, Sahadev Chakma @ Master,

kalapunnu Chakma and Rupdhan Chakma, as the person’s, who had kidnapped him and others, including Protul Chandra Deb and Sadhan Nath.

He has also identified the accused Sahadev Chakma @ Hurhaba and Krishna Madhav Chakma, as the persons who had received the 2 instalments of

ransom from near Devdoot cinema at Silchar and from Bhairavi Chauranga. He had stated that test identification parade was held at Hailakandi jail and

along with him, Shri Sudip Dev, Shri Monia Lohar and Shri Ataur Rahman Laskar had also gone to the said jail and that he had identified the

aforenamed accused persons there. He has denied the suggestion that the aforenamed 5 persons were not present at the time of the incident. He has

stated that during investigation the investigating agency had brought various persons to Katlicherra police station and that he was called to identify those

persons and that those persons were brought to police station before the arrest of the present accused persons. No question was asked to this witness

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as to any irregularity in holding test identification parade in the Hailakandi

jail.

28. While deposing in the Court, prosecution witness no. 4 identified the accused

Sahadev Chakma @ Hurhaba, Sahadev Chakma @Master, Kalapunnu Chakma, Rupdhan Chakma and Krishna Madhav Chakma as persona he had

identified during the test identification conducted in the Hailakandi jail, and also as the person who had abducted him and the other victims. He identified

the accused persons in the Court by touching them. He also identified the accused Krishna Madhav Chakma and Sahadev Chakma @ Hurhaba by

touching them in the Court as the persons, who had collected 1st instalment of ransom from near Devdoot Cinema at Silchar. During cross-examination he

has stated that in the test identification parade held that Hailakandi jail about 40 to 50 persons were lined up in a que and from amongst them, he could

identify 5 accused persons and that these 5 persons were lined up on the same straight-line and that the persons lined up had worn variety of dresses

like Lungi, pants and pyjamas et cetera and were of different status in height and bulk in is of the body.

29. Prosecution witness number 3, Shri Sudip Dev, who is younger brother of the

deceased Protul Dev, has, inter alia, stated that the accused Sahadev

Chakma @ Hurhaba and Krishna Madhav Chakma had taken ₹2.5 lakh from him as ransom for release of Protul Chandra Deb from near Devdoot cinema

at Silchar and has identified them by touching them in the Court. He has also stated that a Magistrate had held test identification parade in Hailakandi jail

and he had identified the aforesaid 2 accused persons as the persons who had received a ransom as aforesaid. He has stated in his examinationin-chief

that during test identification parade about 50-60 persons were arrayed in a line. He has also stated that the 2nd instalment of ransom was also paid to

the said 2 accused persons. During cross-examination he has stated that in the Hailakandi jail we he had identified the 2 accused persons, the persons

arrayed in the parade were with different dresses of different colours. He has

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stated that about 50-60 persons were lined up in the jail and all the persons

were of different statures and that some had beard and some moustaches. He has denied the suggestion that he has falsely identified the 2 accused

persons in the Court. He has also denied the allegation that all the accused persons in the case were the employees of Protul Deb and they used to work

in his bamboo business.

30. The prosecution witness number 9 has deposed that on the strength of the

order dated 07.10.2005 of the then learned Chief judicial Magistrate, Hailakandi, he had conducted a test identification parade after passing an

order dated 07.10.2005, whereby he had intimated the Superintenent, district jail, Hailakandi that such a parade would be conducted at 11 AM on

09.10.2005 and accordingly, he had conducted the test identification parade in the premises of District Jail, Hailakandi after doing necessary paperwork.

He has stated that during conduct of the test identification parade, under trial prisoners of almost similar age, stature and complexion and height of

the suspect accused were mixed in the line maintained at the ratio of 8 is to 1 and the witnesses Jalauddin and others were made to sit in the office room

of the jailer whereupon place of test identification parade conducted was not visible. He has further stated that after the test identification parade line was

made ready, witness Jalauddin was called and he could identify the suspects in the line. He has deposed that he had prepared. Exhibit 67, which is memo

of the identification of the accused done by the witness Jalaluddin which mentions that in the test identification the said witness was able to identify

the accused Rupdhan Chakma, Krishna Madhav Chakma, Sahadev Chakma @Master, Kalapunnu Chakma and Sahadev Chakma @ Hurhaba. He has

further stated that he had conducted test identification parade in the similar manner when the witness Sudip Deb identified the accused Sahadev Chakma

@ Hurhaba and Krishna Madhav Chakma and the persons who had received a ransom from near Devdoot Bus Stand and from Bhairavi Chauranga. He has

identified the memo prepared as Exhibit 68. Likewise, by exhibiting Exhibit 69

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prepared by him, he has deposed that the witness Santosh Lohar had

identified the accused Rupdhan Chakma, Krishna Madhav Chakma, Sahadev Chakma @ Master, Kalapunnu Chakma and Sahadev Chakma @ Hurhaba.

Similarly by exhibiting Exhibit 70 prepared by him, he has deposed that the witness Ataur Rahman Laskar had identified Rupdhan Chakma, Krishna

Madhav Chakma, Sahadev Chakma @ Master and Kalapunnu Chakma as the persons kidnapping them. However, prosecution witness number 9 has stated

that this identifying witness was not able to identify the accused Sahadev Chakma @ Hurhaba. During cross-examination of prosecution witness

number 9 no question was put so as to show that holding of the test identification parade was irregular or not in accordance with law. It was not

suggested that exhibits 67, 68, 69 and 70 were fabricated documents and that the accused were shown to the identifying witnesses beforehand. Even

though, during examination under section 313 of the code of criminal procedure, 1973, when the matter of their identification during test

identification parade was brought to the notice of the accused persons, they had stated that the CBI had shown them to the witnesses when there were

in Hailakandi, CBI Camp and that is why they could identify them (the accused) during test identification parade, no basis, therefor, was latid during

cross-examination of the investigating officer who examined himself as prosecution witness number 35 and no suggestion was given to him that he

had shown the accused to the witnesses before the test identification parade was held. In absence of any question and raising of dispute as to the

correctness and sanctity of the test identification parade during cross-examination of prosecution witness number 9 and 35, the plea taken by the

defence that the test identification was not conducted in the manner prescribed by law fails to be convincing. Even though, during cross-

examination of some of the identifying witnesses, it was brought out that not all the persons arraigned in the line up identification parade were similar, as

the testimony of prosecution witness number 9 remains unimpeached and as the same has been corroborated by the prosecution witness number 5 who

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states that the persons were wearing similar clothes of similar colour. It is to

be noted that the prosecution witness number 9 has stated that the number of persons, and accused in the line for identification parade was in the ratio

of 8 is to 1, and as all the accused persons are not of similar in looks and size, it was but natural that all the persons lined in the queue were not

exactly similar in size, colour and built. Though the defence has tried to show by this that the test identification parade was actually stage-managed and so

designed as to enable the witnesses to pick up the said 5 accused persons, in view of what has been stated above, the same cannot be accepted.

31. It is to be noted that during his examination-in-chief prosecution witness number 4 identified Sahadev Chakma @ Master, Krishna Madhab Chakma,

Kalapuna Chakma, Rupdhan Chakma, as the persons who had abducted him and other persons. It is also to be noted that the prosecution witness

numbers 1 and 4 have also identified Sahadev Chakma @ Master, Sahadev Chakma @ Hurhaba, Krishna Madhab Chakma; Kalapuna Chakma, Rupdhan

Chakma in the Court as the persons who had abducted them. They have also not identified, Ranjit Chakma as one of the abductors who as per his own

confessional statement as well as by the confessional statement of the accused number 1, the accused no. 5, the accused number 2 had left the

place after identifying the vehicle of Protul Deb.

32. The prosecution witness number 14 Md. Saif Ali Laskar has deposed that he

had worked for Protul Chandra Deb at Chauranga for two months and that he used to keep account of bamboo which used to be brought to Mizoram and

used to stock the same as per the instructions of Protul Chandra Deb. He has further deposed that when he had stopped the bamboo belonging to the

accused number 9, whom he has identified in the Court, his contractor Akbar Hussain had informed him and thereafter, the accused number 9 and Protul

Deb had had discussion over the matter. This witness was declared hostile on the prayer of the prosecution as he did not support the prosecution’s case.

Thereafter, he was confronted with the statement purported to be his and

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recorded during investigation under section 161 of the Code of Criminal

Procedure, 1973. Suggestion has been made by the prosecution that he had stated before the CBI that the accused number 9 had come and asked Protul

Chandra Deb as to why had his bamboo been stopped and that Protul Deb had replied that the bamboos were local and therefore, he would not allow

the same to be released as he was entitled to purchase the same. He has denied the suggestion that the accused number 9 had stated that the

bamboos belonged to feel area and therefore must not have been held back. He has also denied the suggestion that, thereafter, both the accused number

9 and Protul Chandra Deb had become angry and that the later had rebuked the said accused in English language. However, the prosecution did not

confirm the same from the investigating officer who was examined as prosecution witness number 35 and therefore, the suggestions made by the

prosecution to the prosecution witness number 14, cannot be said to have attained any evidential weight.

33. The prosecution witness number 15, namely, Akbar Hussain was also examined to support the theory that as the bamboo belonging to the accused

number 9 was stopped leading to a quarrel between him and the victim Protul Chandra Deb, the accused number 9 had a grudge to settle and

therefore, he conspired to kidnap the said victim for a ransom. In examination-in-chief this witness has stated that bamboo belonging to the

accused number 9 was stopped on the instructions of the said victim as the victim had thought the same to be of the said locality and therefore, had

considered himself entitled to purchase the same. However, he has not testified that there was a quarrel between the two. As such, he was also

declared hostile on the prayer made by the prosecution and was confronted with his statement recorded during investigation, but the same having not

been confirmed from the investigating officer by the prosecution, the said suggestions put by the prosecution cannot be said to have acquired any

evidential weight. However, the testimony of the prosecution witness

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numbers 14 and 15 do confirm that bamboo belonging to the accused

number 9 was stopped on the instructions from the victim Protul Chandra Deb.

34. The Honourable Supreme Court of India has, in the case of Shankaria Vs. State of Rajasthan as reported in AIR 1978 SC 1248 as follows:

“It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under S. 164. Cr. P. C. the Court must apply a double test :-

(1) Whether the confession was perfectly voluntary?

(2) If so, whether it is true and trust-worthy?

Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in S. 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test it satisfied, the Court must before acting upon the confession, reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even, so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.”

35. With regards the act of abduction of Protul Chandra Deb along with the prosecution witness numbers 1, 4 and 5 as well as with regards the

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abduction of the victim Sadhan Nath, the confessional statements of the

accused persons have found corroboration from one another. It is also to be seen that the prosecution witness numbers 1, 4 and 5 are not only

eyewitnesses to the abduction but are also the victims. All the 3 persons have corroborated the confessional statements of the accused persons.

Though the prosecution witness numbers 14 and 15 have not stated that there was a quarrel between the accused number 9 and the victim Protul

Chandra Deb, confessional statements of the accused numbers 7 and 8 corroborating one another in this regard to the effect that the accused

number 9 was the mastermind so far as the abduction of Protul Chandra Deb was concerned and the confessional statements getting corroborated in all

other respects by other accused persons as well as the victims/eyewitnesses lends credence to the story of the prosecution that he and the accused

number 7 had, initially conspired to abduct Protul Deb for a ransom and, thereafter, the accused number 7 had, in furtherance of the said conspiracy

involved the accused numbers 1, 2, 3, 4, 5, 6 and 8, along with several others, who were willing and active partners of the conspiracy as aforesaid.

It is seen that the confessional statements of the accused persons so far as hatching of conspiracy and giving effect to the same is concerned stand

corroborated by the testimonies of the prosecution witness numbers 1, 4 and 5 which have remained unscathed. It is also to be noted that the fact that

the bamboo belonging to the accused number 9 was stopped under the instructions from Protul Chandra Deb has also been corroborated by

prosecution witness numbers 14 and 15. Learned Counsel for the defence has argued that such a minor dispute could not have given rise to the

conspiracy of such a magnitude. He has pointed out that the prosecution witness number 1 has stated in his examination-in-chief that on the fateful

day, when the victim Protul Chandra Deb was proceeding from Katlicherra to Bhairavi, he was to go to the shop of the accused number 9 at Gharmura,

but due to shortness of time he could not do so. However, while this can show that the victim Protul Chandra Deb did not have any ill will or grudge

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against the accused number 9, the accused number 9 does not stand

exonerated by the same.

36. The statement made by the prosecution witness number 5 that his

motorcycle was abandoned after he and the pillion rider were abducted by the accused persons also stands corroborated by the testimony of

prosecution witness number 36, who has deposed that on 17.03.2004 while he was in the Jamira Police outpost, he had received an information that on

the National Highway no. 54 a motor cycle was lying near Bharavi and accordingly, he had made General Diary Entry No. 270 dated 17.03.2004 and

thereafter, he had made an enquiry and found the motorcycle abandoned on the highway and that the same had the registration number AS-24-262 and

has also deposed that the registration no. of the Mahindra Jeep was AS-24-1433 and that both the said vehicles were seized by him.

37. The argument on behalf of the defence that the daughter of Protul Chandra

Deb, namely, Ms. Sipra Deb was not examined in the case because she would

not have implicated the present accused persons and would have implicated the other including some influential person and therefore, her non-

examination be treated as fatal to the prosecutions case cannot be accepted. It has been argued that the said witness had implicated Shri Gautam Roy and

had also expressed her doubts about integrity of the prosecution witness number 1 and 4 and therefore, the prosecution did not examine her only to

implicate the present accused persons falsely. However, the case record reveals that the said witness had appeared in the Court once and the Court

was prepared to examine her but she being not ready, she was not examined. It is further to be noted that even, according to her own

statement to the Investigating Officer, she was not an eye witness to any of the events alleged by the prosecution. As such, whatever she would have

stated would have been a hearsay evidence and could not have been relied on. It has been argued that the accused number 7 and 9 and few others

were known to the prosecution witness numbers 1, 4 and 5 and therefore, as

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it is not the case of the prosecution, or of even the defence, that the face of

the miscreants was muffled at the time the alleged abduction and other offences were carried out, these 3 witnesses would have at the very outset

recognised the miscreants and therefore, could have stated to the investigating officer about them expediting the process of investigation.

However, it is nobody’s case that the accused number 9 was present at the time of abduction of the accused. During cross-examination of the

prosecution witness number 1 not even a suggestion was given that Khagendra Chakma was known to him. Similarly, similar suggestions were

not given to the prosecution witness numbers 4 and 5. As such, the plea taken by the defence cannot be sustained. It has further been argued that

the confessional statements ought to be rejected as the same has been disowned by the accused persons in view of the law laid down by the

Honourable Supreme Court in the case of M. Nageswar Rao Vs. State of A. P. As reported in (2011) 2 SCC 188. However, it is to be noted that in

the said case the confessional statements were rejected on combined grounds of the same having been disowned by the accused persons as well

as the same having not been supported by witnesses which is not the case in hand.

38. In view of the above, it is held that the confessional statements of the accused person numbers 1, 2, 3, 4, 5, 6, 7 and 8 are both voluntary and

truthful and as those have been corroborated by the testimonies of other witnesses, they can be relied on in a case like the instant one for finding

against the accused persons.

39. In view of the above, answer to the first two points for determination

mentioned above are given in the affirmative.

40. From the confessional statement of the accused number 1, it is clear that the

accused number 6 had agreed to lead the accused persons/kidnappers to a proper hideout inside the jungle when he had raised the question as to

where the kidnapped person would be kept. The confessional statement of

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the accused number 7 shows that after kidnapping the accused number 6

had led the kidnappers to the hideout. This also gets confirmed from his own confessional statement. It is also seen that the same has been corroborated

by the confessional statement of the accused number 8 who has stated that the accused number 6 had taken him to the accused number 7, and while on

their way, the accused number 6 had stated to the accused number 8 that Khagendra Chakma had sent to him for the accused number 7 for the

purpose of kidnapping Protul Deb.

41. In view of what has been discussed above, answer to the question number 3

is also answered in the affirmative.

42. From what has been discussed above, it is clear that the conspiracy was to

kidnap Protul Chandra Deb for a ransom and only in order to give effect to that conspiracy, the prosecution witness number 1, 4 and 5 as well as

Sadhan Nath and Chungul Ali were abducted. It is clear that the 2 motor cycle borne young men, namely, Md. Ataur Rahman Laskar and Md. Chungul

Ali were abducted so that they were not in a position to frustrate the purpose of the accused persons by informing the police or otherwise. Confessional

statements of the accused persons and more particularly, that of the accused number 2, show that Sadhan Nath was also abducted in order to evade the

process of law and to give effect to the main conspiracy. The intention to abduct all these persons had developed at the place of

occurrence/kidnapping and was nurtured by all the kidnappers. As such, answer to the 4th point for determination is also answered in the affirmative.

43. As mentioned above, the accused number 1 has stated in his confessional

statement that he and his accomplices had taken away 8 rings and one

necklace from Protul Deb and what ever was in the hands of the manager of Protul Deb. The accused number 2 has also confessed to the fact that after

Protul Deb and other victims were kidnapped, on being asked by the accused number 1, he had checked what valuables were with the hostages and had

thereafter found money in the bag of Protul Chandra Deb and that he had

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also taken ₹ 1500/- from the prosecution witness number 5 as well as his

pillion rider Chungul Ali. It is clear that as they were armed with what looked like weapons/firearm, it was but natural that the victims were in the fear of

instant hurt or death and therefore, they handed over or allowed there valuables to be taken by the 2 accused. Presence of all the other

abductors/kidnappers also acted as an additional source of threat to the victims. The prosecution witness number 1 has stated that the miscreants

had taken away cash amount of approximately ₹ 20,300/- from Protul Chandra Deb. This part of the testimony, as has already been mentioned,

was not questioned during cross-examination. Prosecution witness numbers 4 and 5 have also stated that the accused persons took away the valuables

from Protul Chandra Deb and the prosecution witness number 5 and that for the said purpose, they had physically assaulted the victim Protul Chandra

Deb.

44. It is clear that the victims were put in fear of hurt and in fact hurt was

inflicted on Protul Chandra Deb and they were also wrongfuly confined and valuables were taken from their possession by the accused persons and the

accused persons involved were accused numbers 1, 2, 3, 4, 5, 6 and 8 and therefore, the 8th point of the termination is also answered in the affirmative.

45. The accused numbers 1, 2, 3, 4, 5, 6, 7 and 8 have made the confessional

statement that on instructions from Khagendra Chakma conveyed by

Hemendra Chakma to the accused number 1 and 2 and others, the remaining accused persons, that is, the accused numbers 1, 2, 3, 4, 5, 8 and several

others had killed Protul Chandra Deb and Sadhan Nath by strangulating them with the help of bamboo ropes and also by hitting them severely with the

help of lances on their heads and other parts of the body. As has already been held that aforesaid confessional statements have been found to be

voluntary. The accused persons have corroborated one another in this regard in material particulars. In view of the law laid down by the Honourable

Supreme Court of India in the case of Shankaria Vs. State of Rajasthan

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as reported in AIR 1978 SC 1248, and in view of the discussions held

above, this would suffice to convict the accused persons for the act of murder of the 2 victims. However, learned Counsel for the defence has

argued that in absence of corpus delicti it is not safe to convict the aforesaid accused persons of the heinous offence like murder. He has submitted that

there was no sufficient identification of the dead bodies to be that of Protul Deb and Sadhan Nath and the discovery of the skeletal remains was in fact

stage managed and not discovered after being led by the accused number 1 and 2. This takes this Court to the question number 6, which pertains to

identification of skeletal remains found at the instance of the accused number 1 and 2.

46. The prosecution witness number 35 has stated that he had recorded the disclosure statement of the accused Sahadeb Chakma @ Hurhaba and

Krishna Madhav Chakma, which he has identified as Exhibit 78 and 79 respectively and 78(4) and 79(4) respectively thereon as his signatures. In

both the statements. The 2 accused persons have stated they, along with other members of their team had killed and tried to bury Protul Chandra Deb

and Sadhan Nath with some earth and stones. It has been stated in the said statements that the place of killing and burial is in Bhaicherra under

Katlicherra police station in the District of Hailakandi and that both of them, if taken, would point out the place and the skeletal remains of the dead bodies

recovered.

47. The prosecution witness number 35 has stated that he had recorded the

disclosure statement of one of the accused Sahadeb Chakma @ Hurhaba which he has identified as Exhibit 8 with Exhibit 8(4) thereon as his

signature. He states that he had also recorded another disclosure statement of the same accused on 08.09.2005, which he has identified as Exhibit 9 with

Exhibit 9(4) thereon as his signature. He has deposed that on the basis of the 2 disclosure statements, he had recovered one golden ring and one

golden chain worn by Protul Chandra Deb. This witness has stated that

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pursuant to the disclosure statements vide Exts. 78 and 79, the accused

persons had led the CBI team, CFSL experts, and others, to Bhaicherra hills in presence of witnesses (P. W. 8, P. W. 12, P. W. 13, P. W. 16). The 2 accused

persons pointed out the place where Protul Chandra Deb and Sadhan Nath were killed and there burial was made. Subsequent to the pointing out,

skeletal remains, which included 2 skulls, one pacemaker, two pairs of femurs, and personal belongings like pen, wallet with coins, T-shirt, one band

with blackbelt, one shirt, one grey colour pant, 2 pairs of socks, 2 elastic belts, one pair of chappal were recovered.

48. Prosecution witness number 8, has stated that on 04.09.2005, who was working as a Block Development Officer of Lala development block in the

District of Hailakandi when, on being led by 2 accused, he, along with CBI officials, one land records staff, 1 management staff had gone to Bhaicherra

village under Katlicherra police station in the District of Hailakandi when 2 doctors had also accompanied him one of whom was P. W. 16. He has stated

that they were accompanied by one persons from the Central Forensic Science Laboratory and in the said village, near a stream (Nullah), they had

found bones, skulls, some chappals, pant, socks, T-shirt and one money bag and shirt and pant and after finding the same, he had prepared inquest

report after conducting the inquest of the remains of human skulls and bones. He has further stated that seeing the chappal and pant, the

prosecution witness number 3, Shri Sudip Deb had identified them to belong to Protul Deb. He has identified the inquest report as Exhibit 6 with Exhibit

6(1) thereon as his signature. He has stated that after he had prepared the inquest report, the CBI officers had prepared recovery memo of the articles

found on 04.09.2005 and had taken possession of the articles. He has further stated that the recovered articles were sealed and packed in his presence

and in presence of other witnesses and his signature was taken on the cover of the sealed packets. He has identified as Exhibit 7 the recovery memo

prepared by the CBI and Exhibit 7(2) and 7(3) thereon as his signatures. He

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has stated that other witnesses and the 2 accused persons had also put their

respective signatures on the recovery memo in his presence. He has been corroborated by prosecution witness number 3, who has stated that he had

witnessed the inquest proceedings, in which skeletal remains and other articles were recovered from a jungle in the area of Bhaicherra and that he

had put his signature along with other witnesses on the inquest report which he has identified as Exhibit 6 and Exhibit 6(1) thereon as his signature.

Prosecution witness number 23, Doctor B. K. Mahapatra, has deposed that on 04.09.2005, he was serving as a Senior Scientific Officer in the Central

Forensic Science Laboratory, New Delhi and on that day, he had accompanied CBI personnel for the purpose of crime scene investigation as per direction of

the Director of the CFSL. He has stated that he had accompanied the CBI team in connection with case number RC No.3(5)05/SCB/ Call/SCR -III/New

Delhi. According to him, in the team there were CBI personnel, local police, one doctor and one Magistrate and they had gone to Bhaicherra hills to an

area full of jungle covered by bamboos and other trees and found that on the bank for a small stream, some bones were scattered on the slope of a hill

and there was a shirt, two pants, one wallet, one pair of shoes, 2 elastic belt, one pair of chappal and some soft tissue like material whereafter, the CBI

persons had prepared a recovery memo in presence of Shree Kamal Chouhan, Mr. R. C. Malakar, N. P. Yadav, Ashit Deb, Subrata Dey, S.K. Mishra

and Sudip Dev. He has stated that the materials were sealed and packed in his presence and articles were sent to his Division of Central Forensic Science

Laboratory.

49. Prosecution witness number 35 has stated that his team members had taken

the assistance of Dr T. D. Dogra, Deptt. of Forensic Science, AIIMS, ballistic expert at CFSL, New Delhi, also from CDFD. Hyderabad. Besides, the services

of forensic services of South York Shire, London, for the purpose of DNA extraction from femur bone of Late Pratul Chandra Deb so that the DNA

extracted from the bone could be matched with the blood sample DNA

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extracted from Dr. Sipra Deb, daughter of the deceased Protul Deb and that

the report of the above experts was received in the CBI office.

50. The prosecution witness number 26 Doctor T. D. Dogra has deposed that on

09.09.2005. He had received a request from the CBI for conducting autopsy of skeletal remain along with inventory and the sample of seal which he has

identified as Exhibit 106 in connection with CBI case RC-3(S/2005/SCB/VOL/SCR111/MD along with one inventory consisting of total

12 exhibits received in sealed cover. He has also deposed that vide Exhibit 107 dated 12.09.2005, the CBI SCR, New Delhi had given dental record of

Protul Chandra Deb which he had received vide Exhibit 107(1). He has stated that the dental record of the deceased Protul Chandra Deb consisted of 6

documents. He states that vide Exhibit 108 a request was submitted to him for collection of blood sample Ms. Sipra Deb, the daughter of Sri Prabul Deb

enclosed with the consent by Ms. Sipra Deb. He has stated that a request was made for DNA extraction at the CDFD Hyderabad for DNA matching with

a request to depute Doctor Anupama Raina to the CDFD, Hyderabad. He has stated that similar request was made for DNA extraction of Sadhan Nath for

matching the same with the blood sample of his sister/mother. He has stated that thereafter he had constituted a Board of Doctors who had conducted the

autopsy and gave report vide Exhibit 112 running in 8 pages. He has stated that this report contains that anatomical features of mandible, skeleton and

other bones of set 2 suggest that the skeletons remains could be of heavily built elderly person aged about 60 years or above whose available dental

data (based on teeth available on mandible) appeared to match with the corresponding dental record mentioned in the record of Mr. Protul Deb, as

provided by the CBI. According to him, it was also found that the details of pacemaker of Mr Protul Deb (from Hammersmith Hospital, London vide letter

dated 06.09.2005) as provided by the CBI was also matching with that of the pacemaker submitted by the CBI. The report of the autopsy shows that the

skeletal remains were of 2 adult male persons which were arranged in 2 sets,

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Set-I and Set-II . It was opined that the skeletal remains of Set I were of a

person of approximately 176.866 cm and the skeletal remains of Set II was of a person of height 181.068 cm. It was also of opined that there was a

fracture right parietal bone on vault of skull of Protul Chandra Deb, though it was not possible to give an opinion if the said fracture was ante-mortem or

post-mortem. The report says that cause of death could not be ascertained on examination of the skeletal remains.

51. Prosecution witness number 32, Mr. Timothy Marc Clayton was sent femur bones of Protul Chandra Deb and Sadhan Nath. Teeth of Protul Chandra Deb

were also sent to him along with blood samples of Ms. Sipra Deb (daughter of Protul Deb) and Santi Bala Nath (mother of Sadhan Nath). After DNA

analysis, it was opined that the femur stated to be that of late Protul Chandra Deb matched with the blood sample of Ms. Sipra Deb. According to him, the

DNA fingerprinting results provided strong support for the view that the femur bone believed to be of Protul Chandra Deb were originated from Sipra

Deb’s biological father. However, the test could not give any result with regards the femur bone stated to be of late Sadhan Nath. During cross-

examination he has stated that DNA fingerprinting is a powerful tool but is not of an absolute certainty. Learned Counsel for the defence has tried to

take advantage of the same. However, it is to be noted that mathematical certainty is not required to take something as proved in the eye of the law. In

cross-examination this witness has stated that the DNA sample he obtained was low in quantity and poor in quality. He has stated that after bones are

kept in open for a long time, they can deteriorate and it may not be possible to extract DNA samples therefrom. He has cited the same as the reason why

the DNA sample of Sadhan Nath could not be confirmed. However, he has also stated that once it is possible to obtain DNA profile, this means that the

DNA sample was sufficient to carry out the profiling. This shows that sufficient amount of DNA sample was obtained from the bone of late Protul

Chandra Deb.

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52. Accused persons have confessed that, along with strangulating the deceased

victims, they had also hit them with lances on the head and other parts of the body and this can explain why there was a fracture on the vault of the

skull of the deceased Protul Chandra Deb. It is to be noted that it has been proved that the late Protul Chandra Deb and Sadhan Nath were abducted by

the accused persons and have not been seen thereafter. The autopsy report and matching of dental records of the deceased late Protul Chandra Deb and

the DNA profiling fortifies the fact that one of the skeletal remains recovered at the instance of the accused number 1 and 2 was that of Protul Chandra

Deb. In their statement under section 313 of the Code of Criminal Procedure, 1973, the accused persons have not explained as to what had happened to

the 2 victims after they were abducted/kidnapped by them. This points to only one possibility that they must have been killed by the accused persons.

More so, in view of the confessional statements of the accused persons. Having a holistic view, this Court does not find the circumstances and the

evidence to probabilises the theory that the accused numbers 1, 2, 3, 4, 5, 6, 7, 8 were not involved in murdering the 2 victims. It is to be noted that the

definition of proved does not require proof with mathematical precision. As per the definition given in the Indian Evidence Act, a fact is said to be proved

when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under

the circumstances of the particular case, to act upon the supposition that it exists. It does not require a lengthy elaboration to infer that in the

circumstance of the case, the prosecution has been able to prove beyond reasonable doubt that both the victims, namely, Protul Chandra Deb and

Sadhan Nath had died. Even though skeletal remains of the victim Sadhan Nath could not be scientifically confirmed to be his, the circumstances

obtaining in the case makes it a certainty that the other set of skeletal remains must have been of the victim Sadhan Nath as the accused persons

have confessed that both late Protul Chandra Deb and Sadhan Nath were

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killed in the same manner at the same time and place and were buried at the

same place in the same manner.

53. The inferences as to the point for determination number v, vi, viii, also get

corroborated from the following.

54. The prosecution witness number 8 Shri Ramen Ch. Malakar has deposed that

after being led by the accused Krishna Madhav Chakma and Sahadev Chakma @ Hurhaba to recovery of the skeletal remains and other personal

belongings of the deceased Protul Chandra Dev and Sadhan Nath, he had prepared an inquest report and has stated that, along with the skeletal

remains, one money bag with some coins, one T-shirt, once shirt, 2 trousers, to pairs of socks, one pair of Chappal, one pen and one pacemaker were

recovered. He has identified the inquest report as Exhibit 6, which he states to have been prepared in presence of the prosecution witness numbers 3, 12

and 13. In the inquest report, he has mentioned that chappal and trouser were identified by prosecution witness number 3 as belonging to the

deceased Protul Dev. He has stated that after the preparation of inquest report, the articles recovered were packed and sealed by him in presence of

the witnesses. He has also stated that before making inquest, he had prepared recovery memo vide Exhibit 7 in presence of witnesses and the

accused Krishna Madhav Chakma and Sahadev Chakma @ Hurhaba. He has testified that on 08.11.2005, the personal belongings of the deceased

recovered on 04.09.2005 were shown to the family members of the deceased Protul Dev and they had identified four of the articles to be that of the

deceased Protul Dev. It is to be noted that during cross-examination it was not disputed that after recovery the articles were properly packed and

sealed. He has stated that on 08.11.2005, in the CBI camp, the articles recovered, packed and and sealed at Bhaicherra were shown to him and

other witnesses and they were satisfied that the seals of the packets were intact. He has stated that after that the packets were shown to the brother

and nephew of the deceased Protul Chandra Dev. He has been corroborated

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by the prosecution witness number 2, Shri Anil Dev , who has stated that he

had identified black coloured full pant with back belt as worn by Protul Dev. He also identified a pair of socks and the pair of Chappal as that of his

deceased brother. He has testified that after identifying the same, he had put his signature on the identification memo, which he has identified at Exhibit 5,

running into 5 sheets. Likewise, the nephew of the deceased Protul Chandra Dev and prosecution witness number 3 has also testified that on 08.11.2005,

he was shown several articles which included a blue colour ball pen (material Exhibit 6), a leather purse (material Exhibit 7), one T-shirt (material Exhibit

8), one black colour full pant with black belt (material Exhibit 9) and one pair of Chappal (material Exhibit 12) which he had identified as that of his uncle

deceased Protul Chandra Dev. He has also testified that as a token of his identification he had put his signature on Exhibit 5 which is the identification

memo. Prosecution witness number 3 has stated that these articles were recovered at the same place where the skeletal remains of the deceased

were recovered. No suggestion has made to this witness that these articles were not recovered and that Exhibit 5 was not prepared at the spot, even

though the said suggestion has been made to the prosecution witness number 8 with a response of denial. Even though suggestion has been made

during cross-examination of prosecution witness number 2 and 3 that the articles claimed to have been of the late Protul Chandra Dev were not unique

articles and could be found in market, the said witnesses have stated that they remembered that the said deceased used to wear them. It is also to be

seen that as recovery of the said articles along with the skeletal remains could not be denied, and as skeletal remains have been proved to be that of

the deceased Protul Chandra Dev as well, the same lends a greater degree of probability that the articles belonged to the said deceased. The prosecution

witness number 35 has deposed that he had recorded the disclosure statement of the accused Sahadev Chakma @ Hurhaba and of the accused

Krishna Madhav Chakma, which he has identified as exhibits 78 and 79 respectively. The fact of recording of the said disclosure statements of the

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aforesaid 2 accused persons has not been disputed during his cross-

examination nor has it been disputed that the skeletal remains and personal belongings of the 2 deceased persons were recovered after being led by the

2 accused on the basis of exhibits 78 and 79. What has been suggested is that the skeletal remains were not of the deceased Protul Chandra Dev and

of Sadhan Nath. Likewise, the statement of the prosecution witness number 35 that the aforesaid the accused Sahadev Chakma @ Hurhaba had made

another disclosure statements vide exhibits 8 and 9 has also not been disputed during cross-examination.

55. The prosecution witness number 34 has deposed that on 12.09.2005. The accused Sahadev Chakma @ Master had made disclosure statement vide

Exhibit 12 in his presence to the CBI and had stated that after abduction of Protul Chandra Dev, he had taken one gold ring as his share and had given to

the parents of his co-accused Kalapunnu Chakma and had stated that he could show the place where the parents stayed and could get the gold ring

recovered. This witness has further stated that pursuant to the statement, as led by the said accused, the CBI team, along with him had gone to village

Bangamura, P. S. Longthrai Valley, District Dhalai in the State of Tripura and mother of the accused Kalapunnu Chakma, Srimati Degimala Chakma had

handed over 1 gold ring to the CBI team and recovery memo vide Exhibit 13 was prepared in his presence. The prosecution witness number 6 has

corroborated the same in his capacity of witness to the recovery. He has also deposed that on 12.09.2005. The accused Kalapunnu Chakma had made

disclosure statement vide Exhibit 9 in his presence and had stated that after abduction of Protul Chandra Dev, he had kept his gold ring in his father’s

house and had also taken the shoes of Sadhan Nath, after killing him and had kept the shoes in his house and stated that he could lead the CBI team

to discovery of the same. Prosecution witness number 34 has stated that pursuant to the said statement and being led by the said accused the 2

articles were recovered vide Exhibit 20. He has further stated that the 2

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articles were then packed and sealed. He has stated that on 08.10.2005 the

shoes were shown to the mother and the sister of the deceased Sadhan Nath, namely, Srimati Shantibala Nath and Srimati Shukla Rani Nath

separately and individually and they had identified the said pair of shoes (material Exhibit 13) to be that of Sadhan Nath. The sister of Sadhan Nath,

examining herself as prosecution witness number 13, has confirmed the same and has also stated that the said shoes were also shown to her mother

and she had also identified though the mother was not examined as a witness. This shows that the accused Kalapunnu Chakma had the knowledge

that the pair of shoes belonging to Sadan Nath was kept by him in his own residence. In his statement under section 313 of the Code of Criminal

Procedure, when the same was brought to his notice, he said that it was his own shoes and CBI has levelled a false charge that the same was of the

deceased Sadhan Nath. The prosecution witness number 10, Shri Dipak Bhuyan, the then Extra Asstt. Commissioner, Hailakandi has deposed that the

pair of shoes so recovered, packed and sealed, were shown to him on 08.10.2005, and after being satisfied that the packet was with intact seal, he

had opened the same packet in presence of mother and sister of Sadhan Nath and they had identified the same to be that of the said victim. He has

stated that, thereafter, identification memo was prepared in his presence which he has identified as Exhibit 22. During cross-examination he has

reiterated that the 2 ladies had identified the shoes as stated above. During cross-examination, the identification by the prosecution witness number 17

of the shoes as that of her brother has not been disputed in a specific manner. According to prosecution witness numbers 10 and 34, the gold ring

(material Exhibit 4) recovered at the instance of the accused Kalapunnu Chakma, was identified in their presence by the prosecution witness numbers

1, 2 and 3 as belonging to the deceased Protul Chandra Dev. The same has been corroborated by the 3 witnesses stating that the said deceased used to

wear the said golden ring. During cross-examination of the prosecution witness number 1, he has admitted that though there was no identification

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mark on the said ring, he could identify the same as he was familiar with the

same. The identification of the ring by the prosecution witness number 2, who is a brother of the said deceased has not been questioned during cross-

examination. The prosecution witness number 3 has pleaded ignorance to the suggestion if rings similar to the Material Exhibit 4 could be found in

market. However, in view of the fact that identification of the ring by the prosecution witness number 2 has not been questioned, defence, in this

regard does not succeed. Similarly, identification of the gold ring discovered at the instance of the accused Sahadev Chakma @ Master by the prosecution

witness numbers 1, 2 and 3 remain unscathed. Another gold ring has been stated to have been recovered by the prosecution witness number 35 from

prosecution witness number 21 on the basis of the disclosure statement made by the accused Rupdhan Chakma, exhibited as Exhibit 17. The

prosecution witness number 35 has identified the production come seizure memo of recovery of the said gold ring from Srimati Raj Kumari Chakma, the

prosecution witness number 21, as Exhibit 18. The same has been corroborated by Srimati Raj Kumari Chakma in her deposition and she has

also identified the accused Rupdhan Chakma, as a person from whom she had purchased the said gold ring. She has admitted that name of this

accused was told by CBI to her. Nevertheless, this does not go in favour of the defence as she has identified the said accused by face while he was

standing in the dock of the court. Purchase of the said ring by Srimati Raj Kumari Chakma has not been questioned by the defence during her cross-

examination. The same has been identified as Material Exhibit number 1 and belonging to the deceased Protul Chandra Dev by the prosecution witness

number 1 stating that because of long acquaintance with the deceased he was able to identify the said ring. There was no specific question with

regards the said ring during cross-examination to dispute the identity. It has been suggested that there was no unique identification mark on the ring.

However, this is of no value as any person well acquainted with another can identify the ornaments used by that other. Identification of the said ring by

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the brother and prosecution witness number 2 has not been questioned

during cross-examination. During cross-examination of the prosecution witness number 3, who has also identified the said ring as belonging to the

late Protul Chandra Dev. The defence has not succeeded to impeach the same. In reply to question by the defence, the said witness has stated that

he could identify the ring because of the sheer size of the same as he had been seen the deceased using the ring regularly.

56. Prosecution witness number 35 has also identified the Exhibit 15 as the disclosure statement of the accused Krishna Madhav Chakma, wherein it was

stated that he, along with the co-accused Kalapunnu Chakma had sold 1 ring of Protul Chandra Dev to a shop in Chelengtha Bazar in the District of Dhalai

in the state of Tripura and that on the basis of the said disclosure statement, gold ring was recovered, after the accused Krishna Madhav Chakma led the

CBI team to the prosecution witness number 20, from the later vide exhibit number 16. This has been corroborated by prosecution witness number 22

who has stated that the gold ring was given to him by Krishna Madhav Chakma and the accused Kalapunnu Chakma on mortgage. He has identified

the accused Kalapunnu Chakma in the Court. The said statement has been corroborated by the prosecution witness number 6 and 7. The prosecution

witness number 1, 2 and 3 have identified the ring as belonging to late Protul Chandra Dev.

57. As has already been stated, pursuant to exhibits 78 and 79, which are disclosure statements made by the accused Krishna Madhav Chakma and

Sahadev Chakma @ Hurhaba, personal belongings of the 2 deceased victims were discovered from the Bhaicherra hills. It has been stated by the

prosecution witness number 34 that one ball pen, one Brown coloured leather wallet with some coins in it, one T-shirt of the brand “Invicta”, one

black coloured pant with belt, one pair of Chappal were shown to the prosecution witness numbers 2 and 3 and they had identified all these items

to belong to the late Protul Chandra Dev. One pair of black coloured socks so

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discovered was identified by the prosecution witness number 2, however, the

same could not be identified by the prosecution witness number 3 as belonging to the late Protul Chandra Dev. The prosecution witness number 2

and 3 have stated in their testimony that aforesaid items were shown to them by the CBI team and they had identified as noted above. During cross-

examination it has been elicited from the 2 witnesses that these items could be found in the open market. However, merely because some item can be

found in the open market, identification by close relative of the person who had been using the same cannot be questioned as human memory and

mental ability is sufficient to distinguish an article used by a family member from the similar article found in the market. During cross-examination.

Prosecution witness number 3 has categorically stated that he could identify material Exhibit 7 (Brown coloured purse) to be that of the deceased Protul

Chandra Dev as the same had a buckle which is generally not found in a purse. Likewise, he has stated that he could identify the material Exhibit 8 T-

shirt as it was of the size of the said deceased. On the same basis, he states, he could identify material Exhibit 9 (chappal). The rebuttal of the same on

behalf of the defence does not seem to be effective.

58. Likewise, the prosecution witness number 17 has identified the light Brown

coloured socks, light Brown coloured trouser, and shirt recovered at the instance of the accused Krishna Madhav Chakma and Sahadev Chakma @

Hurhaba pursuant to exhibits 78 and 79 to be that of Sadhan Nath on the basis of a small burn mark on the sleeve, she was able to identify and

material Exhibit 16 (shirt). The same could not be rebutted during cross-examination.

59. It is clear that from the discoveries made on the basis of the statements of the accused Sahadev Chakma @ Hurhaba, Krishna Madhav Chakma, Sahadev

Chakma @ Master, Kalapunnu Chakma, and Rupdhan Chakma, shows that they had the knowledge of the dead body of the 2 killed persons was buried

in the Bhaicherra hills in the jungle and where the ornaments and personal

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belongings of the 2 deceased were. The response of the accused persons to

these incriminating circumstances when brought to the notice during their examination under section 313 of the Code of Criminal Procedure, 1973 is

that they had not made any statement and they had not led anything to be discovered. However, in view of the incontrovertible evidence, contrary to the

stand taken by the said accused persons, their explanation is not convincing and fails to probabilise the defence.

60. Vide Exhibit 8 the accused Sahadev Chakma @ Hurhaba is stated to have

told that after taking a golden chain, one “Bajuband” and one golden

bracelet from the person of Protul Chandra Dev, he had given the same to a jeweller in Manu Bazar, who after melting the same had made two Golden

chains which he had sold to the shopkeeper of a hardware shop in Chelengtha Bazar for ₹ 10,000/- and that if he was taken, he could show the

jewellery shop and hardware shop. Vide Exhibit 9, the said accused is stated to have told that he had retained 1 gold chain of Protul Chandra Dev which

he had morgaged to the shopkeeper at Chelengtha Bazar for ₹10,000/- and that he could lead the investigators to the shop and the shopkeeper.

However, the same could not be recovered and in any way, the identity of the golden ring could not have an established as such, the same is of no

evidential value.

61. Pursuant to the purported disclosure statement attributed to the accused

Sahadev Chakma @ Master and exhibited as Exhibit 80 no discovery was made. Prosecution witness number 13, before whom the accused Sahadev

Chakma @ Master and Kalapunnu Chakma are purported to have made disclosure statement vide Exhibit 82, has stated that at the time of making of

the statement, face of the 2 accused were muffled which means that he could not see who actually had put the signature on the said statement. The

CBI officer, who is shown to have recorded the statement has not been examined in the case. The investigating officer, that is prosecution witness

number 35, has also not proved the said document for the signature of the

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CBI officer, who had recorded the said statement. As such, the alleged

recovery stated to be on the basis of the said statement cannot be taken into account in this case.

62. Now let us look into the question number (ix) which is whether the accused persons are guilty of extorting money from the family members of the victim

late Protul Chandra Dev by threatening to kill him.

63. It has already been held that the confessional statements of the accused

numbers 1, 2, 3, 4, 5, 6, 7 and 8 clearly establishes that the late Protul Chandra Dev was kidnapped for a ransom. It has also been confessed by the

said accused that after kidnapping him, the ransom of ₹40 lakh was demanded for release of the said victim. This has been corroborated by the

testimony of prosecution witness numbers 1, 4 and 5 and this Court has arrived at an inference that the same has been proved.

64. The prosecution witness number 2 has stated in his examination-in-chief that

he had himself received a phone call of the kidnappers of his brother

whereby ransom was demanded from them in exchange for release of the late Protul Chanddra Dev. He has further stated that the prosecution witness

number 3 also received similar calls. The prosecution witness number 3 has stated that the callers asked them to come to Silchar near Devdoot cinema to

pay an amount of ₹2.5 lakh and accordingly on 29.03.2004, he, along with the prosecution witness number 1 and 4 had gone to the stipulated place

where 2 persons had received the said amount. He has identified the accused number 1 and 2 as the persons, who had received the said amount. Similarly,

the prosecution witness number 1 and 4 have also identified the 2 accused persons as the ones who had received the ransom at aforesaid place and also

at Bhairavi Chauranga. The confessional statements of the 2 accused persons also state the same. It has already been held above, that the identification of

these 2 accused persons as the persons receiving ransom has been proved and the explanation given by the defence is not sufficient and convincing. It

is to be noted that the said ransom was pursuant to the conspiracy, hatched

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by all the 9 accused persons. As the confessional statements in this regard

made by the accused number 1, 2, 3, 4, 5, 6, 7 and 8 stand sufficiently corroborated and as the said confessional statements have been held to be

voluntary and true, it is held that the accused number 1 and 2, pursuant to the conspiracy, initially, hatched by the accused number 7 and 9, and

thereafter, confided by all the remaining accused persons, had extorted money from the family members of the late Protul Chandra Dev. The

prosecution witness number 3 has stated that the callers making demand of ransom had threatened him of killing his uncle in the event he did not pay

the ransom and the same has not been rebutted during cross-examination. As such, the the point for determination number ix is also answered in the

affirmative.

65. From the evidence on record, it is seen that the Prosecution was successful in

bringing home the allegaations, both through direct and circumstantial evidences, with regards conspiracy to kidnap late Protul Chandra Deb for

ransom and his kidnapping and extortion of ransom amount, with regards abduction of Md. Jalaluddin Majumdar, Shri Santosh @ Monia Lohar, Md.

Ataur Rahman Laskar and late Sadhan Nath, of the accused nos. 1, 2, 3, 4, 5 and 7 having committed dacoity and having caused hurt to late Protul

Chandra Dev in course of the same, of the accused nos. 1, 2, 3, 4, 5, 6, 7 and 8 having common intention to kill late Protul Chandra Dev and late

Sadhan Nath and of they having murderd the said two persons, of the said eight accused having committed offence unser section 201/34 of the Indian

Penal Code and in convincing this court of the aforesaid accused being guilty, beyond reasonable doubt, of hahving committed the said offences.

66. In the result, the accused Jamaluddin Majumdar @ Budul Mian is proved, beyond reasonable doubts, of having committed offences u/ss. 120(B) r/w

364A of the Indian Penal Code and also of having committed the substantive offences u/ss. 364A/386 of the Indian Penal Code and is convicted

accordingly. It is to be noted that it was pursuant to conspiracy hatched by

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him that ransom was extorted from the family members of the late Protul

Chandra Dev. However, he is acquitted of charges u/ss. 364/365 of the Indian Penal Code as there is no evidence that the victim late Protul Chandra

Dev or any other victim was kidnapped with the intention of murder or that the accused had conspired to abduct any other person.

67. The accused Shri Sahadev Chakma @ Hurrhaba, Shri Krishna Madhav Chakma, Shri Kalapunnu Chakma @ Gunaban, Shri Rupdhan Chakma, Shri

Sahadev Chakma @ Master, Shri Battibura Chakma @ Hemendra, Shri Khagendra Chakma @ Khagen and Shri Ranjit Chakma @ Phora are proved,

beyond reasonable doubts, of having committed offences u/ss. 120(B) r/w 364A of the Indian Penal Code and also of substantive offences u/ss

120(B)/364A/365/386/ 302/201/34 of the Indian Penal Code and are convicted accordingly. They also are acquitted of charge u/ss. 364 of the

Indian Penal Code.

68. The accused Shri Sahadev Chakma @ Hurrhaba, Shri Krishna Madhav

Chakma, Shri Kalapunnu Chakma @ Gunaban, Shri Rupdhan Chakma, Shri Sahadev Chakma @ Master and Shri Khagendra Chakma @ Khagen are

proved, beyond reasonable doubts, of having committed offences u/ss. 395/397 of the Indian Penal Code.

69. Seized articles, if any, be confiscated to the state and destroyed/disposed of in due course in accordance with the provisions of the Code of Criminal

Procedure, 1973.

70. It has already been held by this Court that the deceased late Protul Chandra

Dev was a victim of the offence of kidnapping for ransom, dacoity and murder. The case record shows that at the time of his kidnapping, he was

survived by his wife and three daughters. From the definition of the expression "victim" appearing in section 2(wa) of the Code of Criminal

Procedure, 1973, it is clear that widow, and three daughters fall within the said definition and are, therefore, by virtue of the provisions of section 357A

of the said Code, are entitled to receive compensation on account of

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kidnapping for ransom, dacoity and murder of the late Protul Chandra Dev

under the victim compensation scheme of the State of Assam. Likewise, it is also seen that the late Sadhan Nath was a victim of offences of abduction

and then murder and that he is survived by her mother Shrimati Santibala Nath who also falls within the definition of the expression “victim” as stated

above. As such, this Court recommends payment of compensation to the said bereaved relatives of the two deceased by the District Legal Service

Authority, Kamrup (M) at Guwahati. Accordingly, the Secretary, the District Legal Services Authority, Kamrup (M) at Guwahati is requested to make the

requisite enquiry for the purpose of payment of compensation to the bereaved relatives of the two deceased and other entitled relatives, if any, at

the earliest. Send a copy of this judgement to the Secretary, District Legal Services Authority, Kamrup (M) at Guwahati along with photocopies of the

charge sheet filed in the instant case as well as of the deposition of the prosecution witness number 1.

71. This judgement has been pronounced in the open court by reading the operative part of it.

Given under my hand and seal of this court on this the 4th day of August, 2016.

Addl. Sessions Judge No. 1Kamrup (Metro) at Guwahati.

72. The offences u/ss 364A and 302 of the Indian Penal Code entail capital

punishment and, in the alternative, imprisonment for life along with fine. Further, the said penal provisions do not provide for a fixed amount of fine to

be imposed. As such, hearing the convicts on point of sentence has been necessitated and they have been heard.

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73. Learned Senior Public Prosecutor and learned counsel for the defence have

also been heard on point of sentence. Learned Senior Public Prosecutor has prayed for awarding death penalty to the convicts Shri Sahadev Chakma @

Hurhaba, Shri Krishna Madhav Chakma, Shri Kalapunnu Chakma, Shri Rupdhan Chakma and Shri Sahadev Chakma @ Master for their roles in dual

murder of the late Protul Chandra Dev and late Sadhan Nath. He has stated that these convicts were hired criminals and killed the late Protul Chandra for

ransom by strangulating him with bamboo rope and by continuoously hitting him on different parts of his body including head with the help of a lance for

several minutes. He has stated that there was no history of prvious animonsity of these convicts with the said victim and they killed him in a

brutal manner only for money. He has further stated that their killing of Sadhan Nath was even more abhorrable as he was simply abducted because

he was cutting bamboo in the jungle and came across the miscreants, perhaps in search of his livelihood. He has also stated that he was abducted

because he knew some of the miscreants and was killed brutally by strangulation with the help of a bamboo rope and then by several hits with

the help of lance by the accused persons directly involved in his killing till he died. Learned Senior Public Prosecutor has also submitted that even after

killing them, they did not show any respect to the corpse of the deceased and left their dead bodies covered with leaves, stones and garbage. Relying

on the judgement of the Honourable Supreme Court in the case of Shankar Kisanrao Khade Vs. State of Maharashtra as reprted in (2013) 5 SCC 546, he has submitted that the offences committed by these six convicts fall under the rarest of rare category and therefore, extremely penalty would be

a desirable one.

74. Per contra, learned counsel for the convicts has submitted that the evidence

on the basis of which the accused persons have been convicted of offence of dual murder is circumstantial and in that view, the instant case is not one

where death penalty can even be thought of. He has further submitted that

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for awarding death penalty, crime has to be of such a magnitude as to shake

the judicial conscience and the collective conscience of the society. He has submitted that as these convicts come from poor background, they be

treated leniently.

75. As stated above, the convict Jamaluddin majumdar @ Budul Mian has been

found guilty of offences u/ss. 120B r/w section 364A as well as for substantive offences u/ss. 364A and 386 of the Indian Penal Code. For

offences u/ss. 120B r/w section 364A punishment provided is death penalty or imprisonment for life and fine. The record does not show that the offence

committed by him had any extraordinary feature so as to make it look like one falling under the category of rarest of rare case. In his statement, the

said convict has prayed for minimum penalty. He has stated that he has a clothes shop and has four daughters, the eldest of whom is reading in the

higher secondary and the others are either in higher secondary or the secondary schools and that he has to look after them. He has also stated that

he has an 84 years old father, two brothers aged 30 and 20 years and a wife who is unemployed and that he has to look after them. He has stated that

the maximum penalty will leave them with no one in the family to earn livelihood. This court is unable to find any material to infer that the said

convict is a menace to the society and that his life must be put to an end. As such, this court does not find any justification in awarding the maximum

punishment to him. Likewise, the manner of kidnapping and the way it was to be executed does not seem to have been dcided by him. Any way, the

manner the victim late Protul Chandra Dev has proved to have been kidnapped does not show any ingredient that can shake the judicial

conscience and/or collective conscience of the society. As such, this court is of the view that this is not a caase where maximum penalty is required. As

such, the convict Jamaluddin Majumdar is sentenced to undergo life imprisonmemnt for having committed the offence u/ss. 120B r/w 364A of the

Indian Penal Code and to pay a fine of ₹25,000/- failure in payment of which

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shall entain rigorous imprisonment for four months. Likewise, for conviction

for substantive offence u/s 364A of the Indian Penal Code, the accused Jamaluddin Majumdar is sentenced to undergo life imprisonment and to pay

a fine of ₹25,000/- failure in payment of which shall entain rigorous imprisonment for four months. For his conviction u/ss. 386 of the Indian

Penal Code, considering that he was the mastermind and has also received the ransom, the said accused is sentenced to undergo rigourous

imprisonment of eight years and to pay a fine of ₹ 50,000/-. In the event of his failure to pay the same, he shall undergo further rigorous imprisonment

of six months.

76. Stating his case on point of sentence, the convict Hemendra Chakma @ Batti

Bura has prayed for lenient sentence stating that he had been languishing in jail for the last 11 years and that he is 60 years old. He states that he was a

daily wage earner and has suffered a lot in the jail due to the long time taken in trial. He further states that he had one wife and two daughters and two

sons but due to incarceration in jail for such a long time, he has not had any information about them and had been suffering mentally and emotionally due

to lack of connection with his family for the last 11 years. He has also stated that in his family there is not other bread earner.

77. The convict Hemendra Chakma @ Battibura has been convicted for the

offences u/ss 120B/364(A)/365/386/302/201/34 of the Indian Penal Code.

The material on record as discussed in this judgement shows that though he was a party to the concpiracy to kidnap late Protul Chandra Dev for ransom

and had facilitated the other co-accused in reaching the hideout inside Bhaicherra jungle when Md. Jalaluddin, Monia Lohar @ Santosh, Md. Ataur

Rahman Laskar and Sadhant Nath were abducted, he was not involved in the actual act of kidnapping. It is also seen that he conveyed the instruction

given by the convict Khagendra Chakma @ Khagen to Sahadev Chakma @ Hurhaba and others that the two hostages be killed else they would be

caught by the police, nothing in the record suggest that he was involved in

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the final act of killing the two unfortunate victims. No extreme and

unconscionable brutality was exhibited by him through any of his actions and there is nothing even to suggest that this convict deserves the maximum

punishment. As stated, he is now an old man of 60 years. As such, the said accused is sentenced to undergo life imprisonment for having committed

offence u/s 120B r/w 364A of the Indian Penal Code and to pay a fine of ₹ 5,000/- failure in payment of which shall entail further rigorous imprisonment

for two months. For his conviction for the substantive offence u/s 364A of the Indian Penal Code, he is sentenced to undergo life imprisonment and to pay

a fine of ₹ 5,000/- and in default of payment of the same, he shall have to undergo further rigorous imprisonment for two months. For his conviction u/s

365 of the Indian Penal Code, keeping in view his age, he is sentenced to undergo simple imprisonment of two years and to pay a fine of ₹2000/- in

default of payment of which, he shall have to undergo simple imprisonment for further two months. As he himself did not take active part in extortion of

money from the family members of the late Protul Chandra Dev and was only a party to the concpiracy, for his conviction u/s 386 of the Indian Penal Code,

he is sentenced to undego simple imprisonment for four years and to pay a fine of ₹2,000/- and in the event of failure to pay the said fine, he shall have

to undergo further simple imprisonment for two months. For his conviction u/s 302 of the Indian Penal Code, he is directed to undergo life imprisonment

as he did not take part in the actual act of killing and there was no exceptional brutality exhibited by him in any manner and at any stage of the

series of offences committed by him. For the said conviction, he shall also pay a fine of ₹ 5,000/- and in default in paying the same, he shall undergo

further rigourous imprisonment of three months. For his conviction under section 201 of the Indian Penal Code, he is sentenced to undergo simple

imprisonment for three years and to pay a fine of ₹1,000/- and in the event of failure to pay the same, he shall undergo further simple imprisonment for

two months.

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78. The convict Ranjit Chakma @ Phora has also been convicted for the offences

u/ss 120B/364(A)/365/386/302/201/34 of the Indian Penal Code. The material on record as discussed in this judgement shows that though he was

a party to the concpiracy to kidnap late Protul Chandra Dev for ransom and had become a part of the team for execution of the said conspiracy, there is

no evidence of his committing any offence in any brutal and repulsive manner. There is nothing in the record suggest that he was involved in the

final act of killing the two unfortunate victims. No extreme and unconscionable brutality was exhibited by him through any of his actions and

there is nothing even to suggest that this convict deserves the maximum punishment. As such, the said accused is sentenced to undergo life

imprisonment for having committed offence u/s 120B r/w 364A of the Indian Penal Code and to pay a fine of ₹ 5,000/- failure in payment of which shall

entail further rigorous imprisonment for two months. For his conviction for the substantive offence u/s 364A of the Indian Penal Code, he is sentenced

to undergo life imprisonment and to pay a fine of ₹ 5,000/- and in default of payment of the same, he shall have to undergo further rigorous

imprisonment for two months. For his conviction u/s 365 of the Indian Penal Code, he is sentenced to undergo simple imprisonment of four years and to

pay a fine of ₹5,000/- in default of payment of which, he shall have to undergo simple imprisonment for further two months. It is to be noted that

he cannot be said to be entitled to as much leniency shown to this co-convict Shri Hemendra Chakma @ Batti Bura. As he himself did not take active part

in extortion of money from the family members of the late Protul Chandra Dev and was only a party to the concpiracy, for his conviction u/s 386/120B

of the Indian Penal Code, he is sentenced to undego simple imprisonment for four years and to pay a fine of ₹2,000/- and in the event of failure to pay the

said fine, he shall have to undergo further simple imprisonment for two months. For his conviction u/s 302 of the Indian Penal Code, he is directed to

undergo life imprisonment as he did not take part in the actual act of killing and there was no exceptional brutality exhibited by him in any manner and at

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any stage of the series of offences committed by him. For the said conviction,

he shall also pay a fine of ₹ 5,000/- and indefault in paying the same, he shall undergo further rigourous imprisonment of three months. For his

conviction under section 201 of the Indian Penal Code, he is sentenced to undergo simple imprisonment for three years and to pay a fine of ₹1,000/-

and in the event of failure to pay the same, he shall undergo further simple imprisonment for two months.


Chakma, Shri Kalapunnu Chakma @ Gunaban, Shri Rupdhan Chakma, Shri

Sahadev Chakma @ Master and Shri Khagendra Chakma @ Khagen are proved, beyond reasonable doubts, of having committed offences u/ss.

120(B) r/w 364A of the Indian Penal Code and also of substantive offences u/ss 120(B)/364A/365/386/ 302/201/34 of the Indian Penal Code and are

convicted accordingly. They also are acquitted of charge u/ss. 364 of the Indian Penal Code.


Chakma, Shri Kalapunnu Chakma @ Gunaban, Shri Rupdhan Chakma, Shri

Sahadev Chakma @ Master and Shri Khagendra Chakma @ Khagen had been found to be involved in the actual killing of both the late Protul Chandra Dev

and late Sadhan Nath. It was on the instruction of the accused Shri Khagendra Chakma @ Khagen that the accused Hemendra Chakma @

Battibura had conveyed to the accused Sahadev Chakma @ Hurrhaba that the 2 hostages should be killed as the police and the Riang people were soon

about to find them and in that event, none of them would be able to get any ransom and would be Court by the police. It is seen that, thereafter, Sahadev

Chakma @ Hurhaba and Krishna Madhav Chakma instructed the others and thereafter, all of them took the 2 hostages near the rivulet inside the jungle

in the Bhaicherra hills and thereafter, Sahadev Chakma @ Hurrhaba instructed the others to make bamboo rope and to strangulate both the

victims which was done by the others. While the 2 victims had been

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strangulating with the help of bamboo ropes and each end of the bamboo

rope was being pulled by 1 of the aforesaid 6 convicts, the remaining convicts kept beating the 2 victims with lances on the different parts of the

body till they died in 5-10 minutes. It is also seen that they did not show any respect to the dead body and covered the same with tree leaves and stones

and left them there. It is also seen that after killing the said persons, they did not disclose the fact of their death and kept pretending that the victim late

Protul Chandra Dev was still alive and giving death threat to him, the accused Sahadev Chakma @ Hurrhaba and Krishna Madhav Chakma, extorted an

amount of ₹5,00,000/- from the family members of the said deceased. It is also seen that they killed the deceased Sadhan Nath only for the purpose of

shielding themselves from getting caught by the police and to conceal the offence they were committing. Sadhan Nath was not even an initial target of

the planned offence. His simple fault was that he had gone to the jungle for cutting bamboo for the purpose of earnings livelihood and as he could

identify some of the kidnappers, he was also kidnapped and brutally killed.

81. From the above, the following facts emerge:

i. That kidnapping of late Protul Chandra Dev was preplanned;

ii. That the said plan was hatched for the purpose of money and the 6 convicts were hired for the purpose of giving effect to the said

conspiracy;

iii. That there was no animosity between the victim the late Protul

Chandra Dev and the 6 culprits and there was no moral justification of kidnapping him;

iv. That the deceased Sadhan Nath, Md. Jalauddin Majumdar, Monia Lohar and Md. Ataur Rahman Laskar were abducted only in order to

give effect to the conspired crime;

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v. That they not only abducted a totally unconnected person named

Sadhan Nath but also killed him only for the purpose to evade the process of law and to destroy a valuable eye witness to the case;

vi. That they killed the two victims without any provocation and for sheer monetary gain in a brutal manner, both by strangulating and

repeatedly beating them that must have caused both them immense pain;

vii. That Sadhan Nath was simply lifted and killed without even a remote and superficially apparent moral justification,

viii. That they did not show respect to the two dead bodies and almost threw them in the open which shows that these convicts did not have

any regard for human value and dignity;

ix. That despite killing late Protul Chandra Dev, they kept promising the

family members of the said deceased of his return on payment of ransom and extorted the ransom from them.

x. That all the offences including murder of the two deceased were committed in cold blood and with no remorse.

xi. Even during their examination u/s 313 of the Code of Criminal Procedure, 1973, they have not sought to show any ground which

could have justified their manner of commission of crime and rather, they all were in the denial mode alleging false allegation by the

investigating agency.

82. As has been disclosed from the documents like disclosure statements etc. of

the accused recorded during investigation, at the time of commission of the aforesaid offence, the accused Sahadev Chakma @ Hurhaba was aged about

38, the accused Krishna Madhav Chakma was aged 35 years, the accused Rupdhan Chakma was aged 31 years, the accused Kalapunnu Chakma was

aged 42 the accused Sahadev Chakma @ Master was aged 46 the accused Khagendra Chakma @ khagen was aged 38 years as told by him. Though at

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the time of recording of their statements u/s 313 of the Code of Criminal

Procedure, 1973 these accused have stated their ages to be much lesser, it is difficult to disbelieve the prior records in absence of any cogent grounds. It is

clear that none of them was very young and all of them were mature persons. However, from the case record, it does not seem that any of them

has any past criminal record. There are indications of criminal trial going on against some of the accused but there is no evidence led to show that they

have been or any of them has been convicted of any other offence.

83. As held by the Honourable Supreme Court in the case of Shankar Kisanrao Khade Vs. State of Maharashtra as reprted in (2013) 5 SCC 546, the test that should be applied for awarding death sentence, are “crime test”,

“criminal test” and the R-R Test and not “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is 100% and “criminal

test” 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit

the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record etc., the “criminal test” may favour

the accused to avoid the capital punishment. Even, if both the tests are satis-fied that is the aggravating circumstances to the fullest extent and no mitig-

ating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of

the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of

crimes or not. While applying that test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain

types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with

those disabilities etc.. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitu-

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tional compulsion, reflected by the will of the people and not the will of the

judges.

84. The discussions made in the foregoing paragraps 79, 80 and 81 show that in

this case, both the “crime test” and the “criminal test” have not been fully satisfied. It is not that from the record only aggravating circumstances are

seen and not mitigating circumstances.

85. As held by the Constitution Bench of this Court in Bachan Singh vs. State of

Punjab[(1980) 2 SCC 684], the finding would depend on facts and circum-stances of each case. To quote:

“201. …As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of pun-

ishment or for ascertaining the existence or absence of “special reasons” in that context, the court must pay due regard both to the crime and the crim-

inal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More

often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because “style is the man”.

In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the per-

petrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight com-

partments. In a sense, to kill is to be cruel and, therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only

when the culpability assumes the proportion of extreme depravity that “spe-cial reasons” can legitimately be said to exist.”

86. It is seen that all these six convicts had been labourers/daily wage earners and therefore, come from the poor background. It is not impossible that they

might have been lured in committing the heinous offence of kidnapping for ransom after they were assured of monetary gain and thereafter, when they

felt the heat of the impending apprehension, they killed the two unfortunate

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victims. The materials on record do not show that the twin murder was also a

part of conspiracy.

87. In view of the above, this court is unable to agree with the view of the

learned Senior Public Prosecutor that the case of these six accused falls un-der the category of rarest of the rare cases and that it satisfies the precondi-

tions for awarding death penalty as laid down in the case of Shankar Kisanrao Khade Vs. State of Maharashtra as reprted in (2013) 5 SCC 546.

88. As, such, the accused Shri Sahadev Chakma @ Hurrhaba, Shri Krishna

Madhav Chakma, Shri Kalapunnu Chakma @ Gunaban, Shri Rupdhan Chakma, Shri Sahadev Chakma @ Master and Shri Khagendra Chakma @

Khagen are sentenced to undergo life imprisonment for having committed the offence u/s 120B r/w s. 364A of the Indian penal Code and are also dir -

ected to pay fine of ₹5,000/- each. In the event of their failure to pay the said fine, they shall have to undergo rigourous imprisonment of three months

each. For the reasons stated above, identical punishments are awarded to these six convicts for having committed murder of the victims late Protul

Chandra Dev and late Sadhan Nath and for kidnapping late Protul Chandra Deb u/s 364A IPC. For the offences under sections 395/397 of the Indian

Penal Code, these six convicts are awarded sentence of rigorous imprison-ment for eight years and a fine of ₹5,000/- each in default of payment of

which each of them shall undergo rigorous imprisonment of four months. For the offence u/s 201/34 of the Indian Penal Code, these six convicts are sen-

tenced to undergo rigorous imprisonment of seven years and also to pay a fine of ₹ 5,000/- each in default of payment of which each of them shall un-

dergo rigorous imprisonment of four months. For the offence u/s 365/34 of the Indian Penal Code, these six convicts are sentenced to undergo rigorous

imprisonment of four years and also to pay a fine of ₹ 5,000/- each in default of payment of which each of them shall undergo rigorous imprisonment of

four months.

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89. As the aforesaid convicts have been sentenced to undergo life imprisonment,

benefit of the provisions of section 428 of the Code of Criminal Procedure, 1973 shall not be available to them. All the sentences shall run concurrently.

90. Let a warrant of commitment of the convicts to jail for serving the sentence imposed hereby be issued to the Superintendent, Central Jail at Guwahati.

91. Let a copy of this judgement be given free of cost immediately to the con-victed persons. Let a copy of this judgement be also forwarded to the

learned District Magistrate, Kamrup (Metropolitan) at Guwahati under the provisions of section 365 of the Code of Criminal Procedure, 1973.

Given under my hand and seal of this court on this the 9th day of August, 2016.


A P P E N D I X

Prosecution Witnesses:-

P. W. 1 : Md. Jalal Uddin Mazumdar

P. W. 2 : Shri Anil DevP. W. 3 : Shri Sudip Dev

P. W. 4 : Shri Santosh Lohar @ Munia LoharP. W. 5 : Md. Ataur Rahman Laskar

P. W. 6 : Shri Ajal DuttaP. W. 7 : Shri Lakshman Malakar

P. W. 8 : Shri Ramen Chandra Malakar, ACSP. W. 9 : Shri Mahmud Ahmed

P. W. 10 : Shri Dipak Bhuyan, ACSP. W. 11 : Shri Jayanta Kumar Das

P. W. 12 : Shri Neelam Prasad Yadav

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P. W. 13 : Shri Ashit Deb

P. W. 14 : Md. Sarif Ali LaskarP. W. 15 : Shri Akbar Hussain Laskar

P. W. 16 : Dr. Subrata DeyP. W. 17 : Shrimati Sukla Rani Nath

P. W. 18 : Shri Monilal RaiP. W. 19 : Shri Chandan Nath

P. W. 20 : Shri Swapan Kumar BaruahP. W. 21 : Shrimati Rajkumari Chakma

P. W. 22 : Shri Abhijit DeyP. W. 23 : Dr. B. K. Mahapatra

P. W. 24 : Shri Sumanta DasP. W. 25 : Shri Lalthlamuana Pachuau

P. W. 26 : Dr. T. D. DograP. W. 27 : Shri Naba Kumar Choudhury

P. W. 28 : Dr. Kamal ChouhanP. W. 29 : Dr. Jatin Kalga

P. W. 30 : Mr. Kevin MortonP. W. 31 : Mr. Bobby Deb

P. W. 32 : Dr. Timothy Mark ClaytonP. W. 33 : Shri Anuj Arya

P. W. 34 : Shri Bidhan Chandra RoyP. W. 35 : Shri Siva Kumar Mishra

P. W. 36 : Md. Abdul Matin TalukdarP. W. 37 : Shri Vijay Kumar

Prosecution Exhibits :-Documents:Exhibit 1 : Identification memo dated 07.10.2005 qua Material Exts. 1, 2 &

3.Exhibit 2 : Identification memo dated 07.10.2005 qua Material Exts. 4 & 5.

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Exhibit 3 : First Information lodged by P. W. 2 with the Katlicherra P. S.

Exhibit 4 : First Information Report (printed form) filed with the Katlicherra P. S.

Exhibit 5 : Identification memo no. 1 dated 08.11.2005 qua Material Exts. 6, 7, 8, 9, 10, & 12.

Exhibit 6 : Inquest Report qua the skeletal remains recovered on 04.09.2005 pursuant to disclosure statements dated 03.09.2005

(Exts. 78 & 79) made by accused Shri Sahadev Chakma @ Hurhaba and Shri Krishna Madhab Chakma .

Exhibit 7 : Recovery memo qua the skeletal remains recovered on 04.09.2005 pursuant to disclosure statements dated 03.09.2005

(Exts. 78 & 79) made by accused Shri Sahadev Chakma @ Hurhaba and ShriKrishna Madhab Chakma.

Exhibit 8 : Disclosure statement dated 08.09.2005 made by the accused Shri Sahadev Chakma @ Hurhaba.

Exhibit 9 : Disclosure statement dated 08.09.2005 made by the accused Shri Sahadev Chakma @ Hurhaba.

Exhibit 10 : Discovery-cum-seizure memo dated 09.09.2005 pursuant to Ext. 9.

Exhibit 11 : Bahi Khata (Account Book consisting of seven pages) of the shop of Shri Swapan Baruah, P. W. 20.

Exhibit 12 : Disclosure statement dated 12.09.2005 made by the accused Shri Sahadev Chakma @ Master.

Exhibit 13 : Pointing-out-cum-recovery memo dated 13.09.2005 at the instance of the accused Shri Sahadev Chakma@ Master pursuant

to Ext. 12.Exhibit 14 : Specimen impression of seal used for sealing recovered articles

at the instance of the accused Shri Sahadev Chakma vide Ext. 13.Exhibit 15 : Disclosure statement dated 08.09.2005 made by the accused

Shri Krishna Madhav Chakma.Exhibit 16 : Production-cum-seizure memo dated 09.09.2005 pursuant to

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Ext. 15.

Exhibit 17 : Disclosure statement dated 09.09.2005 made by the accused Shri Rupdhan Chakma.

Exhibit 18 : Production-cum-seizure memo dated 09.09.2005 pursuant to Ext. 17.

Exhibit 19 : Disclosure statement dated 12.09.2005 made by the accused Shri Kalapunnu Chakma @ Gunaban Chakma.

Exhibit 20 : Pointing out-cum-seizure memo dated 13.09.2005 pursuant to Ext. 19.

Exhibit 21 : Specimen impression of seal used for sealing recovered articles at the instance of the accused Shri Kalapunnu Chakma @

Gunaban Chakma vide Ext. 20.Exhibit 22 : Identification memo dated 08.10.2005 qua Material Ext. 19.

Exhibit 23 : Specimen impression of seal used for sealing pair of shoes of Sadhan Nath after identification by his mother and sister.

Exhibit 24 : Specimen impression of seal used for sealing identified articles recovered at the instance of the accused Shri Sahadev Chakma

@ Hurhaba Chakma vide Ext. 1.Exhibit 25 : Specimen impression of seal used for sealing identified articles

recovered at the instance of the accused Shri Sahadev Chakma @ Hurhaba Chakma vide Ext. 2.

Exhibit 26 : Envelope used for packing recovered articles.Exhibit 27 : Envelope used for packing recovered articles.

Exhibit 28 : Envelope used for packing recovered articles.Exhibit 29 : Envelope used for packing recovered articles.

Exhibit 30 : Envelope used for packing recovered articles seized from the shop of P. W. 20.

Exhibit 31 : Envelope used for resealing recovered articles.Exhibit 32 : Envelope used for repacking and resealing recovered articles.

Exhibit 33 : Envelope used for repacking and resealing recovered articles.Exhibit 34 : Envelope used for packing recovered articles.

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Exhibit 35 : Envelope used for repacking and resealing recovered articles.

Exhibit 36 : Sealed packet.Exhibit 37 : Specimen impression of seal used for sealing identified articles

vide Identification memo no. 1 dated 08.11.2005 (Ext. 5).Exhibit 38 : Specimen impression of seal used for sealing identified articles

vide Identification memo no. 1 dated 08.11.2005 (Ext. 5).Exhibit 39 : Specimen impression of seal used for sealing identified articles

vide Identification memo no. 1 dated 08.11.2005 (Ext. 5).Exhibit 40 : Identification Memo no. II dated 08.11.2005 qua wearing

apparels of the victim late Sadhan Nath.Exhibit 41 : Specimen impression of seal used for sealing identified articles

vide Ext. 40.Exhibit 42 : Specimen impression of seal used for sealing identified articles









vide Ext. 40.Exhibit 52 : Confessional Statement of the accused Shri Krishna Madhab

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Chakma.

Exhibit 53 : Confessional Statement of the accused Shri Sahadev Chakma @ Hurhaba.

Exhibit 54 : Order dated 10.09.2005 passed in G. R. case no. 145/2004 of Hailakhandi District.




Exhibit 58 : Confessional Statement of the accused Shri Kalapunu Chakma.Exhibit 59 : Confessional Statement of the accused Shri Sahadev Madhab

Chakma @ Master.Exhibit 60 : Order dated 25.10.2005 passed in G. R. case no. 145/2004 by

the learned Chief Judicial Magistrate Hailakhandi District.Exhibit 61 : Order dated 25.10.2005 passed in G. R. case no. 145/2004 by

the learned Addl. Chief Judicial Magistrate Hailakhandi District.Exhibit 62 : Order dated 26.10.2005 passed in G. R. case no. 145/2004 by

the learned Addl. Chief Judicial Magistrate Hailakhandi District.Exhibit 63 : Confessional Statement of the accused Shri Khagendra Chakma

@ Khagen.Exhibit 64 : Confessional Statement of the accused Shri Ranjit Chakma @

Phora.Exhibit 65 : Order dated 07.10.2005 passed in G. R. case no. 145/2004 by

the learned Chief Judicial Magistrate Hailakhandi District.Exhibit 66 : Order dated 07.10.2005 passed in G. R. case no. 145/2004 by

the learned Addl. Chief Judicial Magistrate Hailakhandi District.Exhibit 67 : Requisition Form of T. I. P. of the accused Shri Rupdhan

Chakma, Shri Krishna Madhab Chakma, Shri Sahadev Chakma @ Master,

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Shri Kalapunu Chakma and Shri Sahadev Chakma @ Hurhaba.

Exhibit 68 : Requisition Form of T. I. P. of the accused Shri Rupdhan Chakma,

Shri Krishna Madhab Chakma, Shri Sahadev Chakma @ Master, Shri Kalapunu Chakma and Shri Sahadev Chakma @ Hurhaba.





Exhibit 71 : Memorandum of T. I. P. prepared by P. W. 9.Exhibit 72 : Order dated 09.10.2005 passed in G. R. case no. 145/2004 by

the Learned Chief Judicial Magistrate Hailakhandi District.Exhibit 73 : Order dated 16.09.2005 passed in G. R. case no. 145/2004

Learned Chief Judicial Magistrate Hailakhandi District.Exhibit 74 : Order dated 16.09.2005 passed in G. R. case no. 145/2004 of

the Hailakhandi District by P. W. 11.Exhibit 75 : Order dated 19.09.2005 passed in G. R. case no. 145/2004 of

the Hailakhandi District by P. W. 11.Exhibit 76 : Confessional Statement of the accused Shri Rupdhan Chakma.

Exhibit 77 : Confessional Statement of the accused Shri Hemendra @ Batibura Chakma

Exhibit 78 : Disclosure Statement dated 03.09.2005 made by the accussed Shri Sahadev Chakma @ Hurhaba.

Exhibit 79 : Disclosure Statement dated 03.09.2005 made by the accussed ShriKrishna Madhaab Chakma.

Exhibit 80 : Disclosure Statement dated 11.09.2005 made by the accussed Shri Sahadev Chakma @ Master.

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Exhibit 81 : Discovery of fact/pointing out memo dated 11.09.2005 pursuant

to Ext. 80.Exhibit 82 : Disclosure Statement dated 11.09.2005 made by the accussed

Shri Kalapunnu Chakma @ Gunaban.Exhibit 83 : Recovery Memo dated 11.09.2005 pursuant to Ext. 80 & 82.

Exhibit 84 : Rough sketch map of broken pieces of rifle recovered vide Ext. 83.

Exhibit 85 : Rough sketch map of rifle recovered vide Ext. 83.Exhibit 86 : Rough sketch map of the place of recovery made vide Ext. 83.

Exhibit 87 : Memo dated 27.06.2005 of collection of blood sample of Shrimati Shanti Bala Nath, mother of the victim late Sadhan Nath.

Exhibit 88 : Letter dated 03.10.2005 forwarding rifles recovered vide Ext. 83 to the CFSL, New Delhi for ballistic examination.

Exhibit 89 : Forwarding report of opinion from the Ballistic Expert, CFSL in response to Ext. 88.

Exhibit 90 : Report from the Ballistic Expert, CFSL in response to Ext. 88Exhibit 91 : Memo of production dated 08.09.2005 by the P. W. 30.

Exhibit 92 : Notice dated 09.09.2004 inviting tender for Bamboo Mahal of the

Govt. of Mizoram.Exhibit 93 : Schedules of Bamboo Mahals.

Exhibit 94 : Schedules of Sand Mahals.Exhibit 95 : Schedules of Fishery Mahals.

Exhibit 96 : Terms and Conditions for sale of Forest produce mahals.Exhibit 97 : Work Order dated 06.05.2003 issued to the deceased late Pratul

Ch. Deb in respect of Tuichhuahan Bamboo Mahal.Exhibit 98 : Letter no. B.14014/15/2000-PCCF/84 dated 03.03.2003 copied

to the deceased Pratul Ch. Deb by P. W. 25.Exhibit 99 : Letter no. B.14014/15/2000-PCCF/84 dated 03.03.2003 copied

to the deceased Pratul Ch. Deb by P. W. 25.Exhibit 100 : Work Order no. B.14014/9/2000-PCCF/169 dated 28.11.2003 in

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respect of Tlawng Bamboo Mahal for the period 2003-04 by P. W.

25.Exhibit 101 : Work Order in respect of Tlawng Bamboo Mahal for the period

2002-03 by P. W. 25.Exhibit 102 : Work Order in respect of Bulung Bamboo Mahal for the period

2002-03 by P. W. 25.Exhibit 103 : Work Order in respect of Teirei Bamboo Mahal for the period

2002-03 by P. W. 25.Exhibit 104 : Work Order in respect of Sakeilui Bamboo Mahal for the period

2002-03 by P. W. 25.Exhibit 105 : Work Order in respect of Tut Bamboo Mahal for the period 2002-

03 by P. W. 25.Exhibit 106 : Request letter dated 09.09.2005 to P. W. 26 by the I. O. for

autopsy of the skeletal remains recovered vide Ext. 7 dated 04.09.2005.

Exhibit 107 : Letter dated 12.09.2005 addressed to the P. W. 26 forwarding dental records of the deceased late Protul Deb.

Exhibit 108 : Letter dated 09.09.2005 to P. W. 26 by the I. O. requesting collection of blood sample of Ms. Sipra Deb for establishing

identity of the victim late Protul Deb.Exhibit 109 : Letter dated 13.09.2005 to P. W. 26 by the CBI requesting

Extraction of DNA from the skeletal remains recovered vide Ext.7 dated 04.09.2005 for establishing identity of the victims late

Protul Deb and late Sadhan Nath.Exhibit 110 : Letter dated 17.09.2005 to P. W. 26 by the I. O. requesting

collection of blood sample of Mrs. Shibani Deb for establishing identity of the victim late Protul Deb by way of DNA analysis.

Exhibit 111 : Specimen impression of the seal used for sealing blood sample.Exhibit 112 : Report dated 27.09.2005 of autopsy done on the skeletal

remains recovered vide Ext. 7 dated 04.09.2005.Exhibit 113 : Letter dated 15.09.2005 written by P. W. 26 returning back the

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skeletal remains of the victim late Protul Deb to the I. O. after

autopsy by retaining one femur and three teeth for extraction of DNA.

Exhibit 114 : Letter dated 15.10.2005 forwarding Ext. 112.Exhibit 115 : Letter dated 16.01.2007 written by the CBI to the P. W. 26 for

collection of skeletal remains suspected to be of the victim late Sadhan Nath.

Exhibit 116 : Specimen impression of the seal used for sealing blood sample.Exhibit 117 : Letter dated 19.09.2005 by the P. W. 26 to the CBI.

Exhibit 118 : Letter dated 23.09.2005 by CDFD, Hyderabad returning part of the mortal remains to P. W. 26 retained vide Ext. 113.

Exhibit 119 : Letter dated 10.11.2005 by CDFD, Hyderabad returning part of the mortal remains to P. W. 26.

Exhibit 120 : Letter dated 12.11.2005 forwarding blood sample of Shrimati Shanti Bala Nath (mother of the deceased Sadhan Nath) to the

P. W. 26.Exhibit 121 : Report dated 09.12.2005 of DNA analysis from CDFD, Hyderabad

to P. W. 26.Exhibit 122 : Letter dated 18.12.2005 forwarding Ext. 121 to the CBI.

Exhibit 123 : Packet containing material corresponding to MR no. 1315/05.Exhibit 124 : Proceeding of collection of blood sample and of DNA test carried

at the CDFD, Hyderabad.Exhibit 125 : Envelope containing dental record of the deceased late Protul

Deb maintained by the National Health Service, UK corresponding to MR no. 1316/05.

Exhibit 126 : Envelope containing X-ray examination record of mandible the deceased late Protul Deb corresponding to MR no. 1314/05.

Exhibit 127 : Envelope containing data of pacemaker implanted in the body of the deceased Protul Deb.

Exhibit 128 : Envelope containing X-ray report of bone of Set I corresponding to MR no. 1313/05.

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Exhibit 129 : Envelope containing X-ray report of bone of Set II corresponding

to MR no. 1312/05.Exhibit 130 : Envelope containing X-ray film of bones Set I.

Exhibit 131 : Envelope containing 8 X-ray films of the bones of Set II corresponding to MR no. 1311/05.

Exhibit 132 : Sealed record containing original parcel cover signed by Dr. Chittaranjan Behera.

Exhibit 133 : Specimen impression of the seal used in sealing Ext. 132.Exhibit 134 : Letter dated 12.11.2005 forwarding blood sample of Shrimati

Shanti Bala Nath (mother of the deceased Sadhan Nath) to the P. W. 30 for DNA analysis.


P. W. 26.Exhibit 136 : Letter dated 12.11.2005 forwarding blood sample of Shrimati

Shanti Bala Nath (mother of the deceased Sadhan Nath) to the P. W. 26.

Exhibit 137 : Letter dated 14.11.2005 forwarding bone samples of the Deceased late Protul Deb and late Sadhan Nath and blood

sample of Shrimati Shanti Bala Nath (mother of the deceased Sadhan Nath) to P. W. 30 for DNA analysis.

Exhibit 138 : Letter dated 06.09.2005 forwarding blood sample of Shrimati Shibani Deb to South Yorkshire Police.

Exhibit 139 : Letter dated 06.09.2005 addressed to Detective Sergeant D. Woodcock by the Forensic Scientist Shalinee Abeyawickrama.

Exhibit 140 : Witness statement of D. Woodcock, Detective Sergeant, South Yorkshire Police.

Exhibit 141 : Form of Forensic Medical Examination of Mrs. Shibani Deb.

Exhibit 142 : Form for submission of blood sample of Mrs. Shibani Deb for the purpose of ascertainment of identity of the skeletal remains

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suspected to be of late Protul Deb.

Exhibit 143 : Continuity tag inside Material Ext. 55.Exhibit 144 : Letter dated 12.11.2005 forwarding blood sample of Shrimati

Shanti Bala Nath (mother of the deceased Sadhan Nath) to the P. W. 26.


P. W. 26.Exhibit 146 : Form of Forensic Medical Examination of Mrs. Shibani Deb.

Exhibit 147 : Production Memo dated 05.09.2005 written by P. W. 30 Mr. Kevin Morton.

Exhibit 148 : Witness Statement of Mr. Lee Lewis, Cardiovascular Physiologist testifying that late Protul Deb had underwent implantation of

permanent cardiac pacemaker system.Exhibit 149 : Witness Statement of Mr. Nalin Patel, Dentist with regards

Handing over of dental records of late Protul Deb to the Yorkshire Police.

Exhibit 150 : Letter dated 06.09.2005 from the Hammersmith Hospital detailing the specifications of the implanted permanent cardiac

pacemaker on the late Protul Deb in the said hospital addressed to the Detective Sergeant Dean Woodcock.

Exhibit 151 : Witness Statement of P. W. 30, Mr. Kevin Morton, Detective Superintendent, Yorkshire Police.

Exhibit 152 : E-mail dated 07.11.2005 sent by P. W. 30 to Mr. Behera, CBI. Exhibit 153 : Witness Statement of P. W. 31, Mr. Bobby Deb, Yorkshire Police.

Exhibit 154 : Witness Statement of P. W. 32, Timothy Mark Clayton which includes the DNA fingerprint report.

Exhibit 155 : Photograph of piece of bone. Exhibit 156 : Photograph (side view) of outer package of transportation box.

Exhibit 157 : Photograph (top view) of outer package of transportation box.Exhibit 158 : Photograph of package of femur.

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Exhibit 159 : Photograph of package of bone fragments and molar tooth.

Exhibit 160 : Photograph of the sealed envelope containing blood sample. Exhibit 161 : Photograph of the previously opened inner packaging of femur.

Exhibit 162 : Photograph of the bone showing drill holes.Exhibit 163 : Photograph of the opened inner packaging of bone fragments.

Exhibit 164 : Photograph of the sealed envelope containing teeth. Exhibit 165 : Photograph (close up) of the molar tooth.

Exhibit 166 : Photograph of five FTA card each bearing blood spot. Exhibit 167 : Handing over memo of skeletal remains appearing to be of

Protul Deb to Dr. Sipra deb and Mrs. Shibani Deb. Exhibit 168 : Handing over memo of skeletal remains appearing to be of

Protul Deb to Dr. Sipra deb and Mrs. Shibani Deb. Exhibit 167 : F. I. R. registered by the C. B. I. after the investigation was

handed over to it. Exhibit 168 : Charge-sheet filed by the C. B. I.

Exhibit 169 : F. I. R. leading to registration of Katlicherra P. S. case no. 19/2004.

Exhibit 169 (sic): Supplementary charge-sheet dated 20.01.2006 filed against the accused Jamaluddin Majumdar @ Budul Mian.

Material Exhibits:-Material Ext. 1 : Golden colour ring corresponding to MR No. 1237/05.Material Ext. 2 : Golden colour ring corresponding to MR No. 1241/05.

Material Ext. 3 : Golden colour ring corresponding to MR No. 1242/05.Material Ext. 4 : Golden colour ring corresponding to MR No. 1238/05.

Material Ext. 5 : Golden colour ring corresponding to MR No. 1239/05.Material Ext. 6 : Blue colour ball pen corresponding to MR No. 1199/05.

Material Ext. 7 : A leather purse with some coins corresponding to MR No. 1200/05.

Material Ext. 8 : T-shirt, bottle green and blue in colour corresponding to MR No. 1202/05.

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Material Ext. 9 : Black full pant with black belt corresponding to MR No.

1203/05.Material Ext. 10 : pair of socks corresponding to MR No. 1206/05.

Material Ext. 11 : Elastic belt of the under wear corresponding to MR No. 1207/05.

Material Ext. 12 : Pair of slippers corresponding to MR No. 1208/05.Material Ext. 13 : Pair of black sweat shoes identified as belonging to the

victim late Sadhan Nath.Material Ext. 14 : Broken pieces of rifle recovered vide Ext. 83.

Material Ext. 15 : Packet of rifle recovered vide Ext. 83.Material Ext. 16 : Shirt with green and white strips corresponding to MR

no. 1204/05 identified as belonging to the victim late Sadhan Nath.

Material Ext. 17 : Light brown trouser identified as belonging to the victim late Sadhan Nath.

Material Ext. 18 : Brown socks identified as belonging to the victim late Sadhan Nath.

Material Ext. 47 : White coloured cloth put around Mat. Ext. 17.Material Ext. 49 : Packet containing elastic belts.

Material Ext. 50 : packet containing wooden toy gun.Material Ext. 51 : Pacemaker.

Material Ext. 52 : Tissue like material recovered with skeletal remains.Material Ext. 53 : Soil sample collected corresponding to MR no. 1209/05

from where skeletal remains were found.Material Ext. 54 : Polypack.

Material Ext. 55 : Plastic zipped envelope containing molar teeth.Material Ext. 56 : Plastic zipped envelope inside Material Ect. 54.

Material Ext. 57 : Molar teeth in Material Ext. 55.Material Ext. 58 : FTA cards of blood samples of Shrimati Shanti Bala Nath.

Material Ext. 59 : Poly bag inside Mat. Ext. 54.Material Ext. 60 : Continuity tag inside Mat. Ext. 59.

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Material Ext. 61 : Continuity tag inside Mat. Ext. 59.

Material Ext. 62 : Poly tube containing femur bone.Material Ext. 63 : Femur bone kept in Mat. Ext. 62.

Material Ext. 64 : Half of cross section of femur other half of which was utilised for DNA extraction.

Material Ext. 65 : Seal of CDFD, Hyderabad used for sealing packets sent therefrom to the P. W. 32.

Material Ext. 66 : Brown paper envelope containing seal of CDFD and fragments of bone.

Material Ext. 67 : Wax sal put by CDFD, Hyderabad.Material Ext. 68 : Dental X-ray of late Protul Chandra Deb tagged with Ext.

125(5).Material Ext. 69 : Dental X-ray of late Protul Chandra Deb tagged with Ext.



125(7).

Defence Witness :- None.

Defence Exhibits :- None.

Court Witness:- None.


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