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TMI Blog2005 (9) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 120B IPC. The two appellants who were sentenced to undergo imprisonment for life, filed separate appeals before the High Court of Patna and their conviction on all counts was confirmed. In the appeal preferred by Arnit Das, his conviction was confirmed but the sentence of death imposed on him was commuted to life imprisonment. 2. All these appellants were tried by the Sessions Court alleging that they entered into a conspiracy on 4.9.1998 to do away with one Abhishek. Deceased Abhishek, along with appellant Rohan Prakash, and two others, namely, Shweta and Anvesh, used to attend tuition classes at the residence of Prof. J.C. Banerjee from 5.00 p.m. to 6.00 p.m. and again from 7.00 p.m. to 8.00 p.m. Another student by name, Pallavi, used to get tuition from Prof. J.C. Banerjee from 6.00 p.m. to 7.00 p.m. Appellant Sidharth told appellant Arnit Das that appellant Rohan Prakash was in love with Pallavi but she was not responding and instead she had expressed her love towards deceased Abhishek and, therefore, he is to be killed. According to the prosecution, appellant Sidharth told appellant Arnit Das that all arrangements had been made to kill Abhishek and if appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome students of the college and this had caused some tension to him. 3. Based on the First Information Report given by appellant Rohan Prakash, a case was registered, the inquest report prepared and the 'Fardebeyan' recorded. The police could not get any clue regarding the murder and they suspected the involvement of appellant Arnit Das. On 13.9.1998, PW 21, the Investigating Officer raided the house of appellant Arnit Das. On interrogation by the police, appellant Arnit Das made a clean breast of the entire incident to the police. He showed the wearing apparels worn by him at the time of the incident and the cycle he had used to escape from the scene of occurrence. The pants, shirt and the cycle were taken into custody. Appellant Arnit Das was arrested and he was produced before the Chief Judicial Magistrate on the next day. PW 21, the Investigating Officer gave an application before the Chief Judicial Magistrate stating that appellant Arnit Das wanted to make a confession before the Magistrate. The Chief Judicial Magistrate directed PW7 Deepak Kumar Singh, the Judicial Magistrate to record the confession of appellant Arnit Das. PW-7 recorded the statement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age as on the date of the occurrence and therefore not entitled to the benefit of the Juvenile Justice Act, 1986. Appellant Arnit Das preferred an appeal against the order passed by the Juvenile Court before the Sessions Judge, Patna. The Sessions Judge, Patna dismissed the appeal and the appellant thereafter filed a Criminal Revision before the High Court of Patna. The High Court held that the appellant was above 16 years of age as on the date of occurrence, i.e., on 5.9.1998, and therefore not entitled to invoke the provisions of Juvenile Justice Act, 1986. The appellant thereafter preferred a Special Leave to Appeal (Criminal) No. 729 of 2000 (Criminal Appeal No. 496 of 2000) which was considered and this Court came to the following finding:- So far as the finding regarding the age of the appellant is concerned, it is based on appreciation of evidence arrived at after taking into consideration of the material available on record and valid reasons have been assigned for it. The finding arrived by the (earned A.C.J.M. has been maintained by the Sessions Court in Appeal and the High Court in Revision. We find no case having been made out for interfering therewith. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Justice Act 2000 also cannot be applied as he would not be a juvenile as defined under that Act. 9. As noticed earlier, the main evidence adduced by the prosecution is the confession made by appellant Arnit Das before PW 7 Judicial Magistrate as also the extra-judicial confession made by him before PW 8 Arko Pratim Bannerjee. The question before us is whether the confession made by appellant Arnit Das could be made use of against the other two appellants as a substantive evidence and what is the evidentiary value of that confession in view of Section 30 of the Evidence Act. The learned Counsel appearing for the State of Bihar submitted that the confession made by appellant Arnit Das, to a great extent, was admissible under Sections 10 and 30 of the Evidence Act. It was argued that there was a prima facie evidence of conspiracy against all the appellants, and as appellants Sidharth and Rohan Prakash were participants in this conspiracy, the confession made by appellant Arnit Das could be made use of against the other two appellants as well. 10. Before going into this question, it is to be considered whether the confession made by appellant Arnit Das is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded in the proceedings paper that two hours' time was given to accused Arnit Das for reflection. The learned Counsel for the appellant contended that it is incorrect and that the accused was not given any time for reflection and straightaway produced before the Magistrate to give the statement. The defence had adduced some evidence to show that the entry made in the register of the remand home would prove that the accused was not given enough time for reflection for making the confession before the Magistrate. This evidence of PW7, PW8 and PW9 was discussed in detail by the Sessions Court and it was found that the entries were not genuine and contained interpolations and the evidence of these witnesses was not sufficient to prove that the Magistrate had not given two hours time before the accused made the confession. 12. The learned Counsel for the appellant contended that even if two hours time was given to the accused it was not sufficient. He further contended that this Court in Sarwan Singh Rattan Singh v. State of Punjab, 1957CriLJ1014 had observed that accused person should at least be given 24 hours time to decide whether or not he should make a confessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kept the country-made pistol in the right side pocket of his jeans and covered the same by his T-Shirt. Accused Arnit Das left the house of Sidharth at about 6.00 p.m. on 5.9.1998 and reached the gate of the house of Prof. J.C. Banerjee at about 6.30 p.m. The house was shown to him by accused Sidharth. Deceased Abhishek had come to the house of Prof. J.C. Banerjee alongwith another boy. The wife of Prof. J.C. Banerjee was sitting in the verandah. Accused Arnit Das in his confession further stated that he was in two minds as to whether he should kill Abhishek or not. At that time, accused Sidharth came to him and told him that the boy who had come alongwith deceased Abhishek had returned and that he should now go, call Abhishek out and kill him. He was warned that if he did not kill him, he (Arnit) would be killed. Accused Arnit Das went to the house of Prof. J.C. Banerjee and asked Mrs. Banerjee about Abhishek. Deceased Abhishek and accused Rohan Prakash came out and accused Rohan Prakash pointed towards Abhishek. Accused Arnit Das then told Abhishek to come out for a minute as accused Sidharth was calling him. When Abhishek came out, he took him 10 to 12 steps away from the gate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer. 2. The evidence of PW-5 is also relevant. PW-5 BM Shahi is a teacher residing in the vicinity of the place of incident. He heard the sound of two rounds of firing and also the voice saying Arnit ab bhago . PW-6 is another witness who saw appellant Sidharth running away from the place of occurrence. He too heard the sound of firing. 3. Another important evidence which is consistent with the confession made by appellant Arnit Das is the evidence of Arko Pratim Banerjee, who was examined as PW-8. PW-8 is a friend of Arnit Das. On 5.9.1998, that is, on the date of the occurrence at about 7.30 P.M. he had gone to the house of appellant Arnit Das. He found Arnit Das in a state of nervousness and made enquiries. Arnit Das told him that he had committed the murder of Abhishek. He told him that he had fired a shot at Abhishek in front of the house of Prof. Banerjee. Then appellant Arnit Das showed a double barrel pistol and two cartridges and gave the cartridges to him and asked him to return the same on the next day. PW-8 could not believe this and he returned to his house. On the next day he read the newspaper and came to know that Abhishek had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He argued that the statements made in the confessions related to the past acts done by the accused and they were made after the object of conspiracy had been accomplished. It was argued that things said, done or written while the conspiracy was afoot are relevant as evidence of the common intention once reasonable ground has been shown to believe in its existence, but it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist, is admissible against the other party. Reliance was placed by the appellant's learned Counsel on the decision of the Privy Council in Mirza Akbar v. The King-Emperor, and also the decision of this Court in Mohd. Khalid v. State of W.B. , [2002]SUPP2SCR31 . The learned Counsel for the State on the other hand, relied on the decision in Ammini and Ors. v. State of Kerala, 1998CriLJ481 and also in State through Superintendent of Police, CBI/SIT, v. Nalini and Ors. , 1999CriLJ3124 . The confession made by appellant Arnit Das was made after the common intention of the parties was no longer in existence. There is some for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an assurance in support of its conclusion deducible from the said evidence. 20. Therefore, it is necessary to assess the evidentiary value of the confessional statement of Arnit Das in the light of other evidence adduced in this case. The complicity of the other two accused persons is to be ascertained from the other items of evidence. Apart from the confession, the complicity of accused Sidharth is borne out from the other independent evidence. The evidence of PW-6 Rajeev Ranjan clearly shows that accused Sidharth was present at the place of occurrence. PW-6 had seen him running away from there. At the time of his evidence, he deposed that he was in a perplexed condition. The counsel for the appellant pointed out that this was not stated by the said witness to the police. But, nevertheless, the evidence of PW-6 would show that appellant Sidharth was present at the place of occurrence and was escaping from there immediately after the firearm was shot. The evidence of PW-6 gets corroboration from the evidence of PW-18, the father of deceased Abhishek. PW-18 deposed that on 5.9.98, PW-6 informed him that while he was returning to his house after purchasing some good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled Abhishek out of Prof. Banerjee's house and shot him with the country made pistol and at that time saw Sidharth standing at a distance. Arnit has further stated that at quarter past eight on that day, Sidharth came to his house and told him that he had accomplished the job. On 7.9.1998 Sidharth sent his servant Lakshman to Arnit Das to tell him to go out of Patna, and that if Sidharth was implicated, he would shoot him (Arnit). Therefore, the confession made by appellant Arnit Das clearly supports the other items of evidence against Sidharth and his participation in the conspiracy and his role in the crime is fully established. 23. But as regards appellant Rohan Prakash, his conduct and behavior on the date of the occurrence were of highly suspicious nature. Appellant Rohan Prakash was present in the tuition class along with deceased Abhishek. Appellant Arnit Das came to the house of Prof. Banerjee at about 7.00 p.m. on 5.9.1998 and met Mrs. Rekha Banerjee and enquired about Abhishek. At that time, appellant Rohan Prakash and deceased Abhishek were attending the tuition classes. Appellant Arnit Das introduced himself as a friend of Abhishek to Mrs. Rekha Banerj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Sidharth has been proved to have actually participated in the conspiracy. There is independent evidence to prove that he made all the arrangements pursuant to the criminal conspiracy and induced appellant Arnit Das to commit the murder of deceased Abhishek. Sidharth was present at the scene of the occurrence and that fact is proved by the evidence of PW-6 corroborated by the evidence of PW-18. It is proved that Sidharth abetted the commission of the murder and as he was present at the scene of occurrence at the time of commission of the crime, Section 114 of the Indian Penal Code also would apply. Section 114 IPC provides that whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. The independent evidence adduced against appellant Sidharth is further corroborated by the confession made by appellant Arnit Das. The conviction of appellant Sidharth under Section 302 read with Section 120B and 34 IPC is only to be confirmed. Consequently, Criminal Appeal No. 688 of 2003 is liable to be di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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