Holding

Confessional statements recorded after a three‑hour reflection period are admissible if otherwise voluntary, and when corroborated by strong circumstantial evidence they support conviction and the death sentence.

Summary

In 1975 a nine‑year‑old boy, Sanjay, was kidnapped and murdered during a Holi festival in Tinsukhia, Assam. Henry Westmuller Roberts, Sunil Chandra Biswas and two others were arrested; all four made confessional statements before a Judicial Magistrate after being given only three hours for reflection. The trial court accepted the confessions and convicted all four, sentencing Henry to death and others to various terms. The Gauhati High Court rejected the confessions as involuntary, acquitted Sunil, Anil and Naresh, and upheld Henry’s conviction except for the conspiracy charge. The Supreme Court held that the three‑hour reflection period was not fatal to the voluntariness of the confessions, which were corroborated by extensive circumstantial evidence, and therefore upheld Henry’s conviction and death sentence, while confirming Sunil’s conviction for kidnapping under s.365 IPC and acquitting the remaining accused. The Court also clarified the law on the admissibility of confessional statements and the requirements for circumstantial evidence.

Issues considered

The voluntariness of confessional statements recorded after only three hours of reflection.
Whether the confessions can be admitted despite the High Court's finding of coercion.
The sufficiency of circumstantial evidence to sustain convictions for murder, kidnapping and related offences.
The applicability of s.120B IPC (conspiracy) against the accused.
The appropriate sentence, including the death penalty, for the murder of a child.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 313
Indian Penal Code, 1860s. 120B, s. 201, s. 302, s. 364, s. 365, s. 387

Subjects

confessional statementreflection periodvoluntary confessioncircumstantial evidencedeath penaltykidnappingmurderconspiracyIndian Penal CodeCode of Criminal Procedure

Judgment

533

fl

HENRY WESTMULLER ROBERTS, ETC. ETC.

v.

STATE OF ASSAM & ORS. ETC. B

March 27, 1985

[S. MURTAZA FAZAL ALI, A. VARADARAJAN AND SABYASACH!
MUKllARJ!, JJ.]
c
Code of Criniinal Procedure, 1973, s. J64-C011fessiona/ Statemet1t-Tin1e
for Reflection to the accused-Ifow muc:h sltould be given-Magistrate giving
only three hours to accus'l!dfor rcf/ectio11-Wluther it is insufficient and 111akcs
the state11ie11t inad1nissiblc in el'i:lcnce-Held, Confessional State1nent cannot be
rejected merely bec~use 011/y 3 hours', time is given for reflection if it is otherwise
acceptable.
D
The deceased-a boy of 9 was playing with the children in the
Pandal near a Shiva Temple on 26th March 1975 which was a day of 'Holi'
festival. The prosecution's case is thJt accused Nos. l and 2 kidnapped and
murdered the dece.ased with a view to c:-<tract ransom from his father. Accused
No.1 was arrest~d on 10th April 1975 and on 11.4.75 he showed the place
where the dead body of the deceased had been buried. His interrogation also
led to the arrest of other three accused Nos. 2, 3, and 4. AU the accused made E
their confessional st<itements on different dates before a Judicial Magistrate.
The four accused were subjected to test identification in the parade held by the
Second Class Magistrate, P.W. 2 on 30.4.1975 and 4.9.1975. Accused No. I
was identified by 12 witnesses without any mistake while accused No. 2 was
identified by six witnesse') without any mistake and accused No. 3 was identi·
fied by two witnesses without any mistake. In tlleir statements recorded under
s. 313 of the Code of Criminal Procedure all the accused retracted their con· F
fessional statements and denied all the circumstances appearing against them
in the evidence. The learned Sessions Judge, on a consideration of tho evidence
convicted all the four accused and sentenced accused No. 1 and accused No. 2 to
death under s. 302 read with section 341.P.C. for the murder of the deceased
and to imprisonment for life under s. 364 read withs. 341.P.C. and rigorous
imprisonment for seven years under s. 201 read Withs. 34 l.P.C. and those two
G
accused Nos. 3 and 4 to rigorous imprisoninent for five years ea:ch separately
under s. 1208 ands. 387 read withs. 341.P.C. The sentences awarded to all
the four accused were directed to run concurrently. On appeals by the
four accused, the High Court rejected the confessional statements of
the four accused as not being voluntary or acceptable and held that the circum·
stantial evidence against accused No. 1 taken cumulatively forms a chain so
cou:iptete that there is no escape .from the conclusion that the crime was commit- H
534 SUPREME COuRT REPORTS [L9S5] 3 s.c.R.
ted by him and none else and that each of th~ circumstances established against
A him is incriminating and they cumulatively prove the complicity of accused No.1
in the kidnapping and murder of the deceased. The High Court found that the
evidence is not satisfactory to prove the offence of conspiracy under s.120
I.P.C. against accused No-1 and acquitted him of that charge. but agreed with
the trial court in regard to the finding on the other charges and held him guilty
under ss.364, 387, 302 and 201 IP.C. The High Court thu' allowed the appeal
of accused No. 1 in part only las regard$ hi-s conviction under s. 120B I.P.C.
B
and dismissed it in other respects and accepted the death sentence confirmation
case against him and confirmed the sentenc~ of death as well as the other sen~
tcnces awarded to him by the trial court except under ~· 1208 1.P.C. As
regards accused No. 2, apart from the confession, which was rejected by the
High Court, it found that there was no other evidence except the evidence Jet
in to prove his pr.!sence with accused No. 1 in the ten1ple and the pandal in the
c morning and evening of 26.3.1975 and it held that it is not sufficient to sustian
hi5 conviction and that as r~garJ5 the other two accuscJ No. 3 and 4 there is
no evidence except their retracted confessions which were rejected by it ln that
-...4-
)

view, the High Court acquitt..:d accused Nos. 2, 3 and 4 of all the charges
framed against thcrn and rejected the death sentence confinnation ca5c against
accused No. 2.

D In appeals to this Court by accused No. 1 and the State and the father of
the deceased, the Court.

HELD : l. It ha5 to be noted that accu'i..:d No. 1 h1d not told the
Judicial Magistrate, P.W. 3 that he was beaten by the police for causing hin1 to
1nake a confessional sta~:m~nt. It is nJt po.::sibl~ to hold tl1at accuseJ No. 2's
confessional st1ten1ent, Ex. 7 was not voluntary fro1n the .mere fact that he had
E
on a prior occasion declined to make a confessional statement. The Judicial
Magistrate, P.W. 3 would have been well advised if he had given more time
for reflection to the accused than he has done. But it i'> not pos::1ible to reject
the confessional stetements m)rely because only three hours' time had been
given for reflection, if they are otherwise acc.!ptable. Therefore, it is necessary
to note what accused ~os. 1 and 2 have stated in their confessions to find out
whether intrinsically they are voluntary statement<; or tutored one;; made under
F coercion. A perusal of the confessional statements of accused Nos. I and 2
shows that they are more or less exculpatory of the maker, for accused No. 1
had attributed everything to accussed No . 2 and stated that he had done every~
thing at the instance of accu<;ed No. 2 while accus<;ed No. 2 had attributed the
in1portant role in the crime to accuo:;ed No. I. This would not normally be the
position if the confessions were the result of tutoring by the police. The con~
fessional statement of accused No. 1 is quite Jong while that of accused No. 2
G is much longer. As remarked by the learned Scssio.ns Judge these confe"i sions
are full of facts and minute details which would not be there normally if the
confessions are the result of tutoring or of compulsion. Pursuant to the con-
fessional statement, Ex. 33 (admissible portion) of accused No. 1 offering to
show the place where the dead body of the boy ha.d been buried, some skeletal
remains including the skull which have been later found to be that of a nine
or ten years old human being were recovered from a pit or hole situate by the
H
ii.w. ROBERTS v. ASSAM
side of a hillock io the Bapapung oil field area. There is no reason to dis- A
agree with the findings of the court-> below th3t the corpus de!ecti recovered
fron1 the place pointed out by accused No. 1 as per his confessional statement,
Ex. 33 has been proved to be that of the deceased who had disappeared from
the panda! at the temple in Tinsukhia town in the evening of 26.3.1975. The
circumstantial e\lidence relied upon by the trial court and the High Court
lend assurance to th: genuineness and voluntary nature of these confessions.
They have no doubt been retracted, but in view of the fact that they are gene· B
raJly corroborat~d by the drcumstantial evidence in a1np!e n1easure, there i:i
no satisfactory reason for the confessions not being accepted and acti.:d upon.
Jn these circumstances the learned Sessions Judge was right in holding that
the confessional statements of accused Nos. 1 and 2 are voluntary and can
be acted upon, together with the circumstantial evidence, for basing a
conviction. [552f-H; 55J A-Cl
c
2. The case rests purely upon circumstantial evidence, there being no
direct evidence about the kidnapping and oth:':r offences alleged. There is no
evidence against accused Nos. 3 and 4 except their retracti;:d confessions and
they may not be sufficient to prove any of the charges against the1n. There is
also no satisfactory reason to interfere with the conclusion of the learned
Judges ·of the l-ligh Court that the charge of conspiracy against all the four
accused and the other charges again'>t accu'>ed Nos. 1 and 2 have not been
proved satisfactorily.J553f;554D-El

3, (i) lhc circumstances found by the trial Court and the 1-ligh Court
aga.inst accusei.l No. l are very strong and can safely be relied upon, They
form a co111pletc chain pointing unerringly to the guilt of accu~ed No. I and
are inconsistent with his innocence. Accordingly, accussed No. 1 gliilt has };
been proved by the prosecution satisfactorily beyond all reasonable doubt in
respect of all the charges framed against hin1 except the one under s. J 20B
l.P.C. [547C-D]

3 (ii) The offences committed by accused No. 1, the oringinator or the
' idea of kidnapping children of rich people for extracting ransom, are very
heinous and pre-planned. He had been atteinpting to extract n1oney f1on1 the ]<'
unfortunate boy's fathl!r, P.W. 23 even after the boy had been murdered by
making the father to believe that the boy was alive and would be returned to
him if he paid the ransom. Therefore, this is one of the rarest of ran~ cases in
which th~ cxtr.!in~ pcJa:ty of d.!ltb h c1!lcd for the murder of the innocent
young boy, Saojay in cold blood after he had been kidnapped with promise to
be given sw..::ets. Therefore, the sentence of death and the other sentences
awarded to accu-;ed No. 1 by the High Court under ss. 302, 364, 201 and 387
1.P.C. arc confirmed and Criminal Appeal No. 545 of .1982 filed by him is G
dismissed.[559E'.Gl

3. (iii) As regards accussed No. 2, there is the evidence of P.Ws. 14, 15
and 21 about his Presence in the panda) at the Shiva temple in Tinsukhia
town in the forenoon and evening of 26.3.1975. There is no reason for not
accepting the evidence of these three witnesses, P.Ws. i4, 15 and 21 about the
H
sUrkE~il: couRt REPORtS (1985] 3s.c.it
A presence of accused No. 1 in the panda! at the Shiva temple in Tinsukhia
town on 26.3.1976 when the deceased was playing there with other boys,
P.Ws. 12 and 13. There is also ,no reason for not accepting the evid!!ncc of
P.W. 21 that accused No. 2 called the deceased when he was movin& away
aloiig with her back to the place saying he .would give him chocolates, that
he called accused No. 2 as 'Driver' a few minutes earlier and asked him to
get chocolates, and that P.W. 21 left the deceased behind as desired by him
B . and went away to her house at about 5.30 p.m. on the day of the decease's
disappearance. He has been identified by 6 witnesses in all without any
mistake. There is also the evidence of P.W. 41, the then officer in charge of
Sibasagar Police Station that be arrested accused No. 2 on 14.4. 1975 from a
house in Sibasagar town cremation ground after a long chase and that he was
untill then hunting for him in vain from 11.4.1975, He has stated that he
started to flee as soon as he saw him and that he succeeded in catching him
c after giving him a chase for 1t or 2 furlongs. In his confessional statement,
Ex. 7 accused No. 2 has admitted his presence with accused No. I in the
panda! at Tinsukhia on 26.3.1975 and his arrest from the cremation ground
on 14. 4. 1975. Then: are some other circumstances brought out in the cvi~
dence and his confessional statement extr~cted ·(supra) pointing to his guiJt
unrnistakably. But, there no sati5factory material on record to show that
accused No. 2 either did anything for killing the deceased or that he shared
D the intention of accused No. 1 to ki!l the boy. It appears that accused No.2's
intention as reflected in his confessional statement, Ex. 7 was only to kidnap
and keep the boy for two or three days and send him back after collecting
the ransom. Having regard to all the circumstances of the case the offence
proved against accused No. 2 is only kidnapping of Saajay with intent to
~ecretly and wrongfully confine him, an offence punishable under s. 365
l.P.C. [559B-H; 559A]
E
Therefore, Criminal Appeal No. 209 of 1983 filed by the father of tho
deceased, P.W. 23 against the acquittal of accused Nos. 2, 3 and 4 is allowed
in part and only accused No. 2, is convicted under s. 365 1.P.C. for having
kidnapped Sanjay in order to secretly ai~d wrongfully confine him and he is
sentenced him to undergo rigorous hnprisonn1ent for seven years and it is
disn1issed in other respects. Criminal Appeal No. 211 of 1983 is allowed as
F indicated in Criminal Appeal No. 209 of 1983 and Criminal Appeals No. 210,
212 and 213 of 1983 are dismissed, [559G-H ; 560AB]

CRIMINAL APPELLATE JURISl>JCTION : Criminal Appeal Nos.
545 of 1982, 209, and 210-213 of 1983.

G From the Judgment and Order dated 13.9.82 of the Gauhati
High Court in Cr!. Death Ref. No. 1/81 and Cr!. Appeal No.
19(j), 24 & 25 of 1981.

JD. Jain and Mrs. K. Kochar for the Appellants.

H SK. Nandy for the State of Assam.
H.W. ROBERTS v. ASSAM (Vai'adarajan, J.) 537

Rajendra Singh, M/s. M.L. Lalwty, VB.Joshi Hrishikesh Roy & A
K. Kathahzarika for the appellants in Criminal Appeal No. 209
of 1983.

CS. Vaidyanathan for the respondents.

SC. Patel for the complainatn in Criminal Appeal No. 545 of B
1982.

BP. Singh for the respondents in Criminal Appeal Nos.
210-213 of 1983.

The Judgment of the Court was delivered by c
VARADARAJAN, J. These appeals by special leave are against
the common judgment of a Division Bench of the Gauhati High
Court in Criminal Death Sentence Reference No. I of 1981 in
regard to two accused persons Henry Westmuller Roberts and
Sunil Chandra Biswas and Criminal Appeal No. 19 of 1981 filed by D
those two condemned pers6ns and Criminal Appeals Nos. 24 and
25 of 1981 filed by Narcsh Chandra Ghatani and Anil Chandra
Barua respectively. The Sessions Judge, Dibrugarh in Sessions
Case No. 33 (TSK) of 1978, convicted and sentenced Henry
Westmuller Roberts and Sunil Chandra Biswas (hereinafter re·
ferred to as Henry and Sunil respectively) to death under s. 302
read with s. 34 l.P.C. for the murder of a boy Sanjay), alias
Gettu Agarwala (hereinafter referred to as Sanjay), and to impri·
sonment for life under s. 364 read with s. 34 1.P.C. and rigorous
imprisonment for seven years under s. 201 read with s. 34 J.P.C.
and those two accused Henry and Sunil and accused Anil Chandra F
Barua and Naresh Chandra Ghatani (hereinafter referred to as
Anil and Naresh respectively) to rigorous imprisonment for five
years each separately under s. 120B and s. 387 read withs. 34
l.P.C. The sentences awarded to all the four accused were di-
rected to run concurrently. Henry, Sunil, Anil and Naresh were
accused I, 2, 3 and 4 respectively in the Sessions Court. G
The High Court allowed Criminal Appeals Nos. 24 and 25 of
1981 in full and acquitted Anil and Naresh and also allowed
Criminal Appeal No. 19 of 198 l in full as regards Sunil and acquit·
ted him and rejected the death sentence reference relating to him
and allowed the appeal of Henry in part as regards his conviction
uncler s. 120B 1.P.C. ancl qisn1issed his appeal in ot)\er respects H
538 SUPREME COURT REPORTS [1985] 3 S.C.R.

A and accepted the death sentence reference relating to him. The
result is that the High Court found Henry guilty under ss. 302, 364,
201 and 287 l.P.C. and not guilty under s. 1208 l.P.C. and main-
tained the sentence awarded to Henry by the Sessions Court
except in regard to the offence under s. 1208 I.P.C. and acquitted
the other three accused persons in full.
B
Henry has filed Criminal Appeal 545 of 1982 against his
conviction and sentence awarded to him under s. 302, 364, LOI
and 387 l.P.C. The deceased Sanjay's father Chabil Prasad
Agarwala has filed Criminal Appeal No. 209 of 19~3 against the
acquittal of Sunil, A .. il and Naresh in entirety. The State of
c Assam has filed Criminal Appeal No. 210 of 1983 against the
rejection of the death sentence reference in regard to Sunil and
Criminal Appeals Nos. 22, 212 and 213 of 1983 against the
acquittal of Sunil in Criminal Appeal No. 19 of 1981, Naresh in
Criminal Appeal No. 25 of 1981 and Ani! in Criminal Appeal
D No. 24 of 1981. Henry who had been acquitted by the High
Court under s. 120R T.P.C. is not a party to Criminal Appeal Nos.
209 to 213 of 1983.

The case of the prosecution is this :

E .In 1975 Henry, Sunil and Naresh were employees of the
Oil and Natural Gas Commission (ONGC) at Sibsagar in Assam.
Henry, an Anglo-Burmese was a Laboratory Attendant. Sunil,
a Bengali Hindu was a truck Driver. Naresh, a Nepalese was a
Black-smith. Anil, an Assamese was a Mohurrir under a con·
tractor of the ONGC at Sibsagar. These four accused entered
F into a conspiracy to kidnap minor children at Sibsagar, Dibru-
garh and Tinsukhia with a view to extract ransom. Chabil
Prasad Agarwala, P.W. 23 was doing business. in food-grains in a
shop at Siding Bazar, Tinsukhia situate in Dibrugarh district.
He was living in a dwelling house situate adjacent to his shop
with his wife Lilavati Agarwala, P.W. 19 and seveo children in-
G cluding Sumita Agarwala, P.W. 21 and the deceased Sanjay who
w:is nine years old and Studying in the Girls' Hindu School.

There was a day long 'Holi' (fagua) festival in Tinsukhia
town on 26.3.1975. The people belonging to the Marwari com-
munity of Siding B.izar had erected a panda! near a Shiva
H
(emplc in connection with the 'lfo!i' festival. On that day tliree
H.W. ROBERTS v. ASSAM (Varadarajan. J.) 539

persons who came to the temple fur darshan at 9 or 9.30 a.m. A
stayed on in the temple till about 12.30 p.m. Two of them have
been subsequently idenified as Henry and Sunil. A number of
children collected in the panda\ to participate in the festivities.
Sanjay was in the panda! at about 5 or 5.30 p.m. playing with
some children including Anil Kumar Chetri, P. W. 12 and Nirmal B
Kumar Jain, P.W. 13. One man, who has been subseqnently
identified as Henry, came and watched the play and remarked that
Sanjay was playing well. A little later he gave chocolates to P.W.
12 and Sanjay and asked them for the names of their fathers which
they readily mentioned. Soon thereafte' Sanjay's elder sister,
P.W. 21 aged about 10 or 11 years came to the panda\ in search c
of Sanjay as directed by her mother, P.W. 19 and called him to go
along with her. Then Henry who was in the panda! called Sunil,
who was present there, as 'Driver' and asked him to bring choco
late. When P.W. 21 and Saniay were moving away from the
panda! Henry called San jay by his name and asked him to come
saying tliat he would give him chocolates. Thereupon, Sanjay D
stayed behind after telling his sister, P.W. 21 that he would come
a little later.· Sunil brought chocolates which Henry distributed
to the children. Henry asked Sunil whether the car was ready
and he answered in the affirmative. P.W. 13 left the panda! a
little later while Henry, Sunil and Sanjay remained in the panda!
at about 6 or 6.30 p.m. E

Sa11jay did not rett1rn home. His father, P.W. 23 who came
home at about 7 p.m. on that day went out again and returned
home only at about 3 a.m. on 27.3.1975. P.Ws. 19 and 21 told
P.W. 23 that Sanjay Jiad not returned home. Thereafter, P.W. 23
and his men went out searching for Sanjay. Ramabatar Agarwala,
F
P.W. 20, an accountant in the partnership business of P.W. 23
and Hanuman Prasad Agarwala, P. W. 35 informed the Inspector
of Police, Tinsukhia Police Station, P.W. 42 at about 3.30 a.m.
on 27.3.1975 about Sanjay missing since the previous day. At
about 12 noon on 27.3.1975 when P.W. 23 and others including
P.W .42 were in P.W. 23's shop a message came over telephone No. G'
159 located at the shop demanding a ransom of Rs. 3 Jakhs for the
return of Sanjay. P.W. 23 informed P.W. 42 about this demand
then and there and later sent a written complaint, Ex. 17 to
Tinsukhia Police Station at about 4.30 p.m. on the same day. A
few minutes before P.W. 42. registered a case on the basis of that
report, Brahamadeo Rai, P. W. 29, a rickshawman, came to the ff
A 540 SUPREME COURT REPORTS [1985] 3 S.C.R.

Police Station and handed over a packet saying that it was left
behind by a passenger in his rickshaw who entered a market and
did not turn up. P.W. 42 opened the packet and found it to
contain a pair of a small boy's shorts, M. Ex. 26, two martons,
M. Ex. 28 and an envelope, M. Ex. 1 containing the letter, M. Ex.
B
2 written in English and addressed to "Shri Chabil Das, Siding"
and two other items. The letter written in capital letters read :
"C0me with Rs. 3 lakhs to Jewel Hotel tomorrow 6 p.m. (28).
Do not inform police. Come alone. If not I kill. If no money
take loan." The address on the envelope, M. Ex. 1 and the body
of the letter, M. Ex. 2 have been found by the hand-writing
CJ
expert, P.W. I on a comparison with the specimen hand-writing
and signatures taken from Henry to be in the hand-writing of
Henry. Sanjay's mother, P.W. 19 identified the shorts, M. Ex. 26
as those which were worn by San jay on the day of his disappea-
rance on which she had embroidered the alphabet "sha" in Mar-
wari script.
D
On 30.3.1975 P.W. 23 received the telegram, M. Ex. 13
addressed to "Chabin Das, Siding T.S." to the effect "I am not
satisfied by your performance. Last chance for transaction. If
you want your item wait instruction-Lal'', and he informed
P.W. 35 and others about it. Ex. 3 is original of that telegram
E seized by the police from the Post Master, Moran Post Office,
P.W. 9. On 31.3.1975 P.W. 23 received the bearing envelope,
M. Ex. 6 containing the letter, M. Ex 7 written in Hindi. The
hand-writing expert, P.W. I hos, on a comparison of M. Exs. 3
and 6 with the specimen hand writings of Henry found M. Exs. 3
and 6 to be in the hand-writing of Henry.
F
On 8.4.\975 P.W. 23 received a telephone call from Digboi
asking him whether he had received letter and telegram. When
'
P.W. 23 answered the caller in the affirmative he asked P.W. 23
to come to Digboi if he wanted back his son. P.W. 23 told the
'
caller that he could not pay such a huge amount. It was ulti-
G
mately agreed over the phone that P.W. 23 should pay a ransom
of Rs. 40,000/. The caller told P.W. 23 that he should come
to the Church gate situate behind Digboi Railway Station and act
according to a letter which would be found under a stone by the
side of one of the panels of that gate. P.W. 23 and others accor-
dingly went there and found a plastic cover underneath ~ stoqe
ff
fl. w. ROBERTS I'. ASSAM (Varadarajan, J.) 541

near the gate, conf_aining the letter, M. Ex. 5 written in English A
capital letters. The hrnd-writing expert, P.W. I has found M. Ex.
5, on a comparison with the specimen hand-writing of Henry to
be in the hand-writing of Henry.

The police had deployed some plain-clothed police personnel
at the Digboi public call office for arresting anyone coming to B
book a cail to Tinsukhia telphone No. 159. Henry went to that office
at about 7.30 or 8 p . m. on 10.4.1975 and booked a call to that
telephone number. After obtaining confirmntion about the booking
of the cail from the telephone o:Tice employee, Ajit Kumar Chakra-
borti, P.W. 33, the Town Sub-Inspector of Police, P.W. 24 with help
of two constables P. W.<. 26 and 34 ar.rested Henry near tint public
c
call office. When interrog1ted by the Investigating Officer,. P.W .
. 42 Henry made a statement, Ex. 33 offering to show the place where
the dead body of Sanjay had been buried.

On 11.4.1975 Henry took the police party including the Assis·
0

tant Political Officer and Magistrate, Kanta Das, P.W. 38 to a place D
situate by the side of a hillock in Bapapung. There was a mound
from which the earth had been disturbed at that place. Two bones
and three ribs were found near that mound and a big bone was
found in the bushes and 8 more bones and a jaw-bone with some
teeth were found nearby. When the mound was dug a human skull
with some hair sticking to it and seven bones were found.
E
At the Digboi Police Station, P.W- 38 obtained specimen
hand-writing and signatures from Henry, M. Exs. 11 to 14. The
Interrogation of Henry on 10.4 1975 led to the arrest of the other
-'--L-. three accused Sunil, Anil and Naresh on 11.4.1975 at Sibsagar. Exs.
~ 15 to 17 are the specimen hand-writings of Naresh obtained by the
F
Judicial Magistrate, P.W.3 on 27.5.1975. Ex.2 is the report of the
hand-writing expert, P .W. l submitted to the Chief Judicial Magis-
trate, Dibrugarh on 20.8.1975, containing his opinion about the
hand-writings.

The Investigating Officer, P. W. 43 who had taken over from 9
P.W.42 produced Henry before the Chief. Judicial Magistrate,
- Dibrugarh on 12.4.1975 for recording his confessional statement
which he was in'a mood to 'make, and it was recorded by th~ Judicial
Magistrate, P.W.3 on 12.4 1975 itself after giving him some time
for ref1ection. Sunil was arrested by the Inspector of Police, ff
542 SUPREME COURT REPORTS [1985} 3 S.C.R

A P.W.4l on 14.4.1975. Sunil, Anil and Naresh made their confes-
sional statements, Exs. 7, 8~and 9 on 18.4.124, 1975, 19.4.1975 and
21.4.1975 respectively before the Judicial Magistrate, P.W.3.

The medical Officer, P.W.37 packed the incomplete skeletal
rem.ains mentioned above in the presence of the Judicial Magistrate,
B P.'\)1.3 and sent them to the Forensic Science Laboratory, Gauhati
on.24.4.1975 under the direction of the Chief Judicial Maistrate,
Dibrugarh along with P.W.37's autopsy certificate.and two photo-
graphs ofSanjay. The Assistant Director, Biology Section, Forensic
Science Lab.oratory, Gauhti, P.W,27 obtained some more photo
graphs ofSanjay with their negatives and also a coat and a check-shirt
c of the boy from the Chief Judicial Magistarte, Dibtugarh. After a
study of the .skeletal remains P.W.27 found that they related to a
9 to 10 years old boy. By making super imposition P.W.27 concluded
thafthe skull in question could have been the skull of San jay as per
his enlarged photographs. Ex.26 is the report of P.W.27. The
D Scientmc Officer of tl)e photograph Section of the Forensic Science
Laboratory, Gauhati, P.W.28 performed the super-imposition
experiment of the photograph of the skull, M.Ex.48 and the photo-
graph of Sanjay, M.Ex. 59 and found them to be of the same per-
son. Ex.27 is the report of P.W.28.

E The four accused were subjected to test indentification in the
parade held by the Second Class Magistrate, P.W.2 on 30.4.1975
and 4.9.1975. In the parade held on 30.4.1975 Henry was indentified
by 12 witnesses without any mistake while Sunil was indentified by
6 witnesses without any mistake and Anil was indentified by two
witnesses without any mistake. Ex.5 is P.W.2's report relating to
F the proceedings of 30.4.1975. In the parade held on 4.9.1975
Henry was identified by Rajender Nath Sharma, P.W.9 and Jiten
Barua,P.W.25 without any mistake. Ex.3 is the report relating to
the proceedings of 4.9.1975.

Jn their statements recorded under s.313 of the Code of
Criminal Procedure all the four accused retracted their confessional
G
statements and denied all the circumstances appearing against them
in the edvidence.

The learned Sessions Judge, Dibrugarh, on a consideration of
the evidence convicted all .the four accused and sentenced them as
H mentioned above, accepting the confessional statements, Bxs. 6 to 9,
1H. w. ROBERTS v. ASSAM ( Varadarajan; J.)
543
of the four accused recorded by the Judicial Magistrate, P.W.3 and A
the other evidence in the case. The learned Sessions Judge has
considered these confessions in paras IOI to 110 of his judgment
'and has observed that there is nothing improbable. or unbelievable
in them, that they appear to be spontaneous and are ·studded with
I
' . vivid facts about the manner.of commission of the crimes, that they
receive assurance in several material particulars from the circum- B
stantial evidence let in by tho prosecution and that they are all
.. voluntary and reliable though it appeared from the cross-exami-
nation of the prosecution'witnesses and from the statements of the
accused recorded under s. 313 Cr.P.C. that they are retracted.

But the learned. Judges· of the High Court rejected all the
c
. confessions and the evidence of P.\Vs. 10, 11, lo and 25 regarding
the identification of the accused in the test identification parade.
They have considered the confession of Henry in paras 45,55,62 and
64 of their judgment and have o'iserved that the Judicial Magistrate,
P.W.3 had failed to act properly in giving only three hours to Henry D
for reflection before recording his confession, Ex.6 on_ 12.4.1975.
They have further observed that though it is difficult to lay any
hard and fast rule, in Serva Singh. Rattan Sing v. State of Punjab(')
it has been held by this Court. that generally speaking when an
accused is produced under police custody it is reasonable to. insist
upon giving him at least. 24 hours for reflection, They have held E
that Henry's confessional statement, Ex.6 has been obtained by
coercion and is not voluntary and that it suffers from serious infir·
mity and cannot be acted upon. They have considered Sunil's
confessional statement, Ex.7 in paras 74 and 76 of their judgment.
and found that he too had been given only_ three hours for reflec~ F
tion before his confession was recorded by the Judicial Magistrate,
P.W. 3 on 18.4.1975 al)d that it is not voluntary and therefore, it is
invalid in law. They have _considered the confession, Ex.8, of Anil
in paras 77!anrl 79 of their judgment and have observed that the
Judicial Magistrate, P.W.3 who recorded it on 19.4.1975 had failed
to see whether the accused was going to make the confession volun- G
tarily after comprehending the implications of his admission. They
have considered the confession, Ex. 9, of Naresh "r<:corded by the
Judicial Megistrate, P.W. 3 on 21.4.1975 in paras 84, 87 and 88 of
their judgmemt and found thai it has been made due to duress and

(I) AIR J 957 SC 637 H
544 SUPREMU COURT REPORTS (1985] 3 S C.R

A inducement by the police and is not voluntary and that it suffers
from serious infirmities and cannot be aeted upon.

On a consideration of the other evidence, the learned Judges
found that Sanjay had been kindnapped and murdered, and they
accepted the trial court's judgment that the corpus de/ecti has been
B correctly identified to be that of Sanjay ..They accepted the evidence
of P.Ws. 12 to 15 and 21 about the presence of Henry and Su nil
in the panda! at the temple before Sanjay had disappeared on
26.3.1975. They accepted the evidence of the rickshawman, P.W.
29 who has identified Henry in the test identification parade held
c by P.W.2 as the man wbo had left behind in his riskshaw the packet
containing S~njay's shorts, M.Ex.26 and certain other things
including the letter,M.Ex.2, enclosed in the envelope, M.Ex.l which
he had produced at the police station on 27.3.1975, and found on
the evidence of tlie hand-writing expert, P.W.l M.Ex.2 to be in the
hand-writing of Henry.
D
On the evidence of the Post Master, Moran, P.W.9 who has
identified .Henry in the test identification parade hold by P.W.2 as the
person who handed over the telegram, Ex. 3, copy whereof, Ex. 13
had been received by P.W. 23, the learned Judges fo.und that Henry
had given the telegram, Ex. 3. On the evidence of the hand-writing
E expert, P.W. I they found that Ex. 3 is in the hand-writing of Henry
and they held that Ex. 3 connects Henry with the crime.

The learned Judges found on the evidence of P.W. 23 that he
had received. a bearing letter, M. Ex. 7 written in Hindi on
31. 3.1975 enclosed in the envelope, M. Ex. 6, but held that it is not
F proved to be in the hand-writing of any of the accused though the
address written on the envelope, M. Ex. 6, of that letter is proved
by t~ hand-writing expert, P.W. I to be in the hand-writing of
Henry, and they rejected the evidence relating to that letter.

The learned Judges accepted the evidence of P.W. 23 about
G the telephonic conversation he had with some caller from Digboi at
about 8 or 8.30 p.m. on J.4.1975 when that caller demanded a ran-
som of Rs. 3 lakhs for the return of Sanjay and it was ultimately
agreed that P.W. 23 should pay Rs. 40,000 for the purpose. They
accepted the prosecntion evidence that in accordance with that
conversation P.W. 23 accompanied by some police personnel in
ff plain clothes who posted themselves at suitable places weQt near
li.'w. ROBERTS v. ASSAM (Varadarojan, J.) 545
A
the gate of the Church situate behind Digboi Railway Station on
9.4.1975 and found· the letter, Ex. 5 which has been found by the
hand-writing expert, P.W. I, to be in the hand-writing of Henry in
English capital letters and they held that this was a strong piece of
cirucmstantial evidence against Henry.
B
. The learned Judges found that Henry attempted to run away
when he was pointed out by P.W.33 while he was standing near a
pan-shop in front of the public telephone call office at Digboi on
I0.4.1975, waiting for the trunk-call booked by him. at about 7 or
7.30 p.m on that day to Tinsukhia telephone No. 159 to mature
and that he bit the constable, P.W.34 and tried to escape from his c
hold and that the circumstances under which he was arrested and
his conduct at that time~unerringly point to his guilt.

The learned Judges accepted the evidence of P.Ws. 14, 15 and
21 about the identification of Henry and Sunil in the test identi-
fication parade held by the Judicial Magistrate, P.W.2 as the persons D
who were present in the panda! before the disappearance of Sanjay
on 26.3.1975, observing that these three witnesses had seen the sus-
. peels in broad-day light and were in a position to notice their physi-
cal features correcty.

The learned Judges accepted · the prosecution evidence that E
skeletal remains were recovered at the instance of Henry and pur-
suant to his confessional statement, Ex. 33 (admissible portion) and
found that the evidence of P.Ws.27, 28 and 37, agreeing with the
trial court, that the skull bone recovered pursuant to Ex. 33 is that
of Sanjay and they have observed that the recovery of the skull bone
of Sanjay at the instance of Henry is an important piece of evidence F
pointing unerringly to his guilt.

The learned Judges accepted the evidence of the witnesses
who had identified Henry in the test identification parade held by
the Judicial Magistrate,P.W.2 except the evidence of P.Ws. 10, ll,
G
16 and. 25 on the ground that the photographs of Henry had been
shown to P. Ws.10, 11 and 25 before the identification and P.W. 16
could not identify Henry in the court during the trial.

The learned Judges noticed the law relating to circumstantial
evidence in para 19 of their judgment thus: H
546 SUPREME COURT REPORTS [1985}:; S.C.R·
A
"The law regarding circumitantial evidence is well
settled. When a case rests upon circumstantial evidence,
such evidence must satisfy three tests:

(i) the circumstances from which an inference of guilt is
B sought to be drawn must be cogently and firmly esta-
blished; (ii) those circumstances should be of definite
tendency unerringly pointing towards the gujlt of the
accused; and (iii) the circumstances taken cumulatively
should form a chain so complete that there is no escape
from the conclusion that within all human probability
c the crime was committed by the accused and none else.
The circumstantial evidence in order to sustain (a) con-
viction must be complete and incapable of explanation
on any other hypothesis than that of the guilt of the
accused. The circumstantial evidence should not only
be consistent with the guilt of the accused but should
D be inconsistent with his innocence.

After thus taking note of the law relating to circumstantial evi-
dence the learned Judges have held in para 146 of their judgment
that the circumstantial evidence against Henry taken cumulatively
forms a chain so complete that there is no escape from the conclu-
sion that the crime was committed by him and none else and that
E each of the circumstances established against him is incriminating
and they cumulatively prove the complicity of the Henry in the kid-
napping and murder of Sanjay. They found that the evidepce is
not satisfactory to prove the offence of conspiracy ~under s. 120B
I.P.C. against Henry and acquitted him of that charge, but agreed
with the trial court in regard to the finding on the other charges
F
and held him guilty under ss. 364, 387, 302 and 201 I.P.C. They
thus allowed his appeal in part only as regards his conviction under
s. 120B J.P.C. and dismissed it in other respects and they accepted
the death sentence confirmation case against him and confirmed
the sentence of death as well as the other sentences awarded to him
G by the trial court except under s. 120B I.P.C.

As regards Sunil, apart from the confession, Ex.7 which has
been rejected by the learned Judges they found that there was no
other evidence except the evidence let in to prove his presence
H with Henry in the temple and the panda! in the morning and even-
H.w. ROBERTS v. A~SAM (Varadarajan, J.) 547
A
ing of 26.3.1975 and they held that it is not sufficient to sustain his
conviction and that as regards the other two accused, Anil and
Naresh there is no evidence except their retracted confessions, Ex.8
and 9 which have been rejected by them. In that view they acqui-
tted three accused, Sunil, Anil and Naresh of all the charges framed
against them and rejected the death sentence confirmation case B
aginst Sunil. ·

The trial court acted upon the judicial confessional statements,
' Exs. 6 to 9 of all the four accused as being voluntary and reliable.
But the learned Judges of the High Court rejected all of them
as not being voluntary or acceptable. They have held that Henry's c
confession, Ex.6 has been obtained by coercion and suffers from
serious infirmity. As regards Anil's confession, Ex. 8 they have
observed that the Judicial Magistrate, P.W.3 who had recorded it
on 19.4.1975, had failed to see whether Anil was going to make
the confession voluntarily after comprehending the implications
of his admission. As regards Naresh's confession, Ex.9 they have
held tilat it has been made due to duress and inducement by the D
police and that it suffers from serious infirmities. In the view we
are taking as regards Anil and Naresh, it is not necessary to consi
der which of the two views, whether of the trial court or of the High
Court is correct in regard to their confessional statements, Ex.8
and 9. The acceptability or otherwise of the confessional statements
of the other two accused, Henry and Sunil, has to be considered in E
detail.

The Judicial Magistrate, P. W. 3 who had recorded Exs.6 and
7 on 12.4.1975 and 18.4.1975 respectively had. admittedly given
only three hours time for reflection before he recorded them. ·He
has stated in his evidence that after Henry was produced before F
him by constable Hadi Hussein at ll a.m. on 12.4.1975 he told
Henry that he is a Judicial Officer and no other person was present
inside the court and nobody would harm if he showed any reluc-
tance to confess and that he was not bound to make any confessional
statement but if he made one it would be used against him. He bas
G
stated that after Henry told him that .his mind was clear from the
time of his arrest and that he wanted to confess out of repentance
for what he had done be gave him three hours time for reflection
and put him in the custody of a peon of the Chief Judicial Magis-
trate, Dibrugarh in his own chamber and saw to it· that no police
officer was allowed to enter the court .until the recording of the H
548 SUPREME COURT REPORTS [i985] 3 S.C.R.

A confessional statement of Henry was over. He was stated that
after Henry was brougl1t before him from his chamber after the
said interval he cautioned him as above and that after being satis-
fied that Henry was going to confess voluntarily he recorded his
statement in Ex.6. As regards Sunil also, P.W.3 has stated that be
administered the caution as he did in the case of Henry ·when be
B
was produced before him at 11.30 a.m. on 18.4.1975 and that Sunil
told him that he wanted to confess because be was repentant for
what he had. done and that he replied in the negative when he
asked him if he had been threatbened by the police. He has stated
that after giving him three hours time for reflection he repeated
c the aforesaid warning to Sunil 'and that he expressed his willingness
to make the confessional statement and he recorded it in Ex.7 after
he was satisfied that Sunil was going to confess voluntarily. It
appears that Henry had some injury on his person when he was
produced before P. W.3 and that on an earlier occasion .%nil had
expressed his unwillingness to make any confessional statement.
The injury found on Henry, according to the entry, Ex. Kai in
J) the jail register was this: "Both hands on the back slight swelling,
complains of pain in both legs". The injury was not serious enough
to force Henry to make a false confessional statement. It must be
remembered that Henry had attempted to run away when the postal
employee, P.W.33 pointed him to the police personnel in plain-
clothes and that after he was caught by the consables, P.Ws.26 and
E
34 as directed by the Sub-Inspector of Police, P. W.24 he bit the
hand of P.W.34 (according to P.W.26) before he was put in a police
vehicle and taken to the police staiion. It was suggested to. P. W.
34 in cross-examination that Henry was beaten by the police on or
after 10.4 .1975, which has no doubt been denied by him. It is not
F improbable that Henry was roughed up and given some beating by
the police when he tried to escape from the hold of P.Ws. 26 and
34 before he was forcibly put into the police vehicle and taken to
the police station, resulting in some injury to his person. It has to ·
be noted that Henry had not told the Judicial Magistrate, P.W.3
that he was beaten by the police for causing him to make a confes-
G sional statement. It is not possible to hold that Sunil's confessional
statement, Ex.7 was not voluntary from the mere fact that he had
a prior occasion declined to make a confessional statement. The
Judicial Magistrate, P.W.3 would have been well advised if he. bed
given more time for reflection to the accused than he has done. But
it is not possible to reject the confessional statements merely beca-
H use only three hours time had been given for reflection, if they are
ii.I\'. ROBERTS v. ASSAM (Varadara}an, J.) ,549
otherwise acceptable. Therefore, it is necessary to note what Henry A
and Sunil have stated in their confessions to find out whether
intrinsically they arc voluntary statements or tutored ones made
under coercion. We will state in our own words what Henry and
Sunil have stated in their confessional statements. Henry has
stated in his C< nfcssion thus:
B
"I was arrested at Digboi at 7.30 p.m. on 10.4.1975. On
26.3.1975 I and Sunil !and Anil went from Dibrugarh to
Tinsukbia. Boys were playing in a big panda! in Tinsukhia.
l was waiting a little away from the panda!. Sunil went
near the panda! and called a boy and after asking him for
his father's name he brought the boy to me. Sunil offered c
sweets to the boy and asked him io follow me, saying' that
I would give him many things. I took the boy in a
rickshaw and proceeded a furlong and Sunil brought
a Taxi. The boy mentioned his name as Sanjay Agarwala.
Sunil told me tliat the boy could be confined in an
abandoned house in Bapapung, and we went there. l D
was proceeding ahead of Sunil and the boy. When
we were proceeding towords the Bapapung oil field area
·I heard moaning sound. I looked back and found that
Sunil had caught hold of the boy's neck and puHed
him down. Sunil pressed the chest of the boy with his
knee and also pressed his mouth. · Ultimately Sunil E
strangled the boy to death. There was a: bole which
looked like a foxhole. Sunil kept the dead body of the
boy inside the hole and filled it up with· earth. Sunil tore
off the sh'irt and pants of the boy and took them with him.
After the murder we came to Digboi. Next n;iorning
I and Sunil came to Tinsukia. · I rang up the father of the F
deceased to demand a ransom of Rs. 3 lakbs. Then at 3
p.m. we sent the p:mts and the shirt of the deceased to
his father through a rickshaw-wallah. We sent a letter
along with the clothes. The letter was written by me in
English. In the letter I mentioned that iftbe farther.wanted
G
the boy back he would have to give three lakhs of rupees.
The father was directed to give the money at the Jewel
Hotel, Dibrugarh. On 29.3.1975 I sent a telegram to the
father of the boy from Moran Post Office directing him to
wait for our instructions. On 7.4.1975 I and Sunil went to
H
55() SUPREME COURT REPORTS [1985] ~ s.c.R.

Dibrugarh and spent the night there. . On the next day I
A
booked a call to the father of the boy. When the bell rang
Sunil held the receiver and demanded the money to be
given positively on the next day, but the father did not
turn up. On 10.4.1975 Sunil asked me to book a call. I
held the receiver in a public phone-booth and asked the
B exchange to book a call to Tinsukhia telephone No. 159.
In the mean time Sunil suspected something and asked me
to leave the place and he disappeared. When I entered the
sweepers line, two plain-clothed cyclists stopped me and
took me to .the police station. On my asking the de~eased
mentioned the name of his father as Chabil Das Agarwala
c or something like that. I have done all this at the instiga-
tion of Sunil."

Sunil has stated in his confessional statement thus :

D "About one and a half months ago I went to Naresh's
shop to buy provisions as at fair price. Then Henry came
there and said that we had not achieved anything in life
by work and that if I follow the line shown by him I would
get a lot of money overnight. When I asked him what the
line was, he said that we should kidnap sons of rich
E people and keep them for two or three days and demand
money and return them after getting the money. There-
after, on 25.3.1975 I, Henry and Anil went to Naresh's
shop where Henry said that we should kidnap boys at
Dibrugarh and he would bear all the expenses. We went
to Dibrugarh on that day at 5 p.m. and stayed in Kusum
F Hotel. On the next day we went to Tinsukhia and spent
the night in the railway station platform. After hunting
the whole of next day Henry managed to take away a boy
by inducement from a panda! at Tinsukhia and
put him in a rickshaw and I followed them in another rick-
shaw. Henry sent Anil for a taxi and when it was brought
I and Henry boarded it along with the boy near Shivadam,
G and Anil went away. We got down near the gate of Bapa-
pung oil field. While getting down Henry made the boy to
stand up leaning against his own body. When the taxi left
Henry took up the boy in his arms. As the boy,s hands
were hanging loose I asked what had happened. Henry
H told me that the boy had gone to sleep for ever and he .
H.W. RORERTS v. ASSAM (Varadarajan, J..) 551

had finished him off. Looking closely I found a length of A
string tied round the boy's neck. Then Henry said that
the boy's disposal should be arranged. Taking the boy
we went to the cremation ground at Bapapung. Finding a
hole there, Henry took off the boy's pants and shirts and
pushed the boy into it. I and Henry completed the burial
by putting earth over the ·body. Next morning we went B
• to Tinsukhia by train. In the platform Henry wrote a
lett~r and placed the boy's pants with the letter and asked
a rickshaw puller to deliver the packet to Chabil Marwari.
Before kidnapping the boy Henry stated that after kidnap-
ping he would demand three lakhs of rupees from his G
father. While getting down at Namrup, Henry said that I
would have to go to Moran on the next day with Ghatani.
After reaching Sibsagar I went to Moran with Chatani on
27.3.1975 and we met Henry and Anil. While I was
taking tea in a hotel Henry sent a telegram from the post
office to Chabil Agarwala informing him that he would let
him know when and where the money should be delivered. 0
Only then Henry said the boy was Sanjay and his father
was Chabil Agarwala. In the Kusum Hotel Henry siad
that Chabil would deliver the money at the Jewel Hotal.
Henry went into the Jewel Hotel and came back and said
that it would not be convenient and that we should move E
off. On 6.4.1975 I and Henry went to Digboi and stayed
there for the night. At 6 p.m. on the next da} Henry tele-
phoned Chabil Marwari from the Digboi main post office,
informing him that on 8.4.1975 he would leave a letter at ·
the gate of the Church situate behind the railway station
and that he sho_uld collect that letter after leaving a sum F
of Rs. 3 lakhs. At 3 p.m. Chabil came by car and collected
the letter and left a letter written in Hindi at the gate.
On 9.4.1975, or 10.4. 1975 Henry wanted to telephone once
again and at 6 p.m., I and Henry went to Digboi Post
Office. While I waited near a pan shop Henry booked a
call from that post office. The Post Master said that it G
would take about ten minutes to put the call tbro·ugh. Four
or five policemen in plain clothes arrested and took away
Henry. I hid myself in the cremation ground from where
the police found me and arrested me."
H
552 SiJPREME COURTS REPORTS [!98S] j S.C.R.

A A perusol of these confessional statements, Bxs. 6 and 7 shows
that they are more or less exculpatory of the maker, for Henry had
attributed everything to Sunil and stated tl1at he had done every-
thing at the.instance of Sunil while Sunil had attributed the impor-
tant roll in the crime to Henry. As pointed out by Mr. Rajender
Singh, Senior Counsel appearing for complai 'Jallt, P. W. 23, this
would not normally be the position if the confessoim were the result.
of turoring by the police. The confessional statement of Henry is
quite long while that of Sunil is much longer. As remarked by the
learned Sessions Judge these confessions arc full of facts and minute
details which would not be there normally if the confessions arc the
result of tutoring or of compulsion. The circumstantial evidence
c relied upon· by the trial court and the High Court lend assurance to
the genuineness and voluntary nature of these confessions. They
have no doubt been retracted, but in veiw of tlie fact that they are
generally corroborated by the circumstantial evidence in ample
measure, there is no satisfactory reason for the confessions not be-
0 ing accepted and acted upon. In these circumstances, we agree
with the learned Sessions Judge that the confessional statements
of Henry and Snnil, Exs. 6 and 7, are voluntary and can be acted
upon, together with the circumstantial evidence, for basing a
conviction.

E We agree with the courts below that the corpus delecti has
been correctly established by the prosecution to be that of Sanjay.
The letter M.Ex. 2 (enclosed in the envelope, M.Ex.1) was found
in the paper packet delivered by the rickshawman, P. W.29 at the
Tinsukhia Police Station on 27.3.1975. The packet Contained
inter a/ia the pair of shorts, M.Ex 26 which have been identified
F by Sanjay,s mother, P.W.19 as those which he was wearing on the
day of his disappearance. In that letter, M.Ex.2 addressed to
"Shri Chabil Das, Siding"; it stated that if the ransom of Rs.3
lakhs is not paid by 6 p.m. on 28.3.1975 at the Jewel Hotel the
person who wrote that letter would "kill". No doubt it is not
mentioned in that letter as to who would be killed if the money
G was not paid within the time. The amount which was finally
settled at Rs.40,000 in the telephonic converfation which P.W.23
had from some caller from Digboi on 8.4.1975 had not been paid.
In the confessional statements, Exs. 6 and 7 it is stated that Sanjay
was killed though the manner, the place and the hands which I<;illed
him are mentioned differently. Pursuant to the confessional
H
H.W. ROBERTS v. ASSAM (Varadilrajan, J.) 553

statement, Ex.33 (admissible portion) of Henry offering to show the A
place where the dead body of the boy · had been buried some·
skeletal remains including the skull which have been later found to.
be that of a nine or ten years old human being were recovered
from a pit or hole situate by the side of hillock in the Bap'apung'
oil field area. Those skeletal remains were sent by the Medical
B
Officer, P.W.37 duly packed in the presence of the Judicial
Magistrate, P.W.3 to the Forensic Science Laboratory, Gauhati. ·
The Assistant Director, Biology Section of that laboratory, P.W.
27 obtained some photographs of Sanjay with their negatives from,
the boy's family through the police. After performing the super-
imposition test with Sanjay's enlarged photograph, M.Ex.59 the c
Scientific Officer of the Photography Section of that laboratory,.
P.W.28, found the skull, M.Ex. 48 and the phtograph, MEx. 59 of
Sanjay to be of the same person. Ex.27 is his report. In these
circumstances, we think that there is no reason to disagree ·with the
findings of the courts below that the corpus delecti recovered from·
the place pointed out by Henry as per his confessional statement,· D
Ex.33 has been proved to be that of Sailjay who had disappeared
from the panda! at the te1nple in Tinsukhia town in the evening of ·
26.3.1975. We agree with the courts below and find that the
prosecution has proved beyond all reasonable doubt that Sa~jay,
who was about nine years old at the time of his disappearance,
had been kidnapped and murdered. E

The case rests purely upon circumstantial evidence, there
being no direct evidence about the kidnapping and other offences
alleged. . The case of the prosecution is that all the four accused
stayed at the Kusum Hotel on 24.3.1975 as shown by the entries
,..~~,"in the register of that hotel, M.Ex.10 and that Henry ·and Sunil F
l were together in the pandal at the Shiva temple in Tinsukhia town
in the forenoon and evening of 26.3.1975. On the basis of this
circumstance aud the confessional statements the prosecution has
sought to establish its case of conspiracy ·against the accused. In
his confessional statement, Ex.7 Sunil had stated that when he went
to Naresh's shop about one and a half months· prior to 18.4.1975 G
for buying provisions at fair price Henry camo there and told him
that they had not achieved anything in life by work and that if
he would follow the line shown by him he would get a lot of money
overnight, that when he asked Henry about what that line was he
told him that they should kidnap sons of rich people and keep them H
for two or three days and demand ;noney as ransom and return . ·
554 SUPREME COURTS REPORTS [1985] 3 s.c.R.

A them after getting the money, and that thereafter on 25.3. 1975 he
went along with Henry and Sunil to Naresh's shop where Henry
stated that they should kidnap boys at Dibrugarh and he would
meet all the expenses. He has also stated that Henry told him at
the Kusum Hotel that Chabil (P. W. 23) would d Jliver the money
8 at the Jewel Hotel. He has mentioned about the presence of Anil
and Naresh on some other occasions also in his confessional state-
ment. fo his confessional statement, Ex. 6 Henry has made
repeated reference to Sunil but only once to Anil and that is that he
went along with Sunil and Anil from Dibrugarh to Tinsukhia on
26.3.1975. There is no other evidence about the conspiracy. We
c agree with the High Court that the e.vidence adduced by the prose-
cution is not sufficient to prove that charge. Mr. Rajender Singh,
learned Senior Counsel who appeared for the complainant did not
advance any argument regarding the charge of conspiracy. He
admitted that there is no evidence against Anil and Naresh except
D
their retracted confessions and that they may not be sufficient to
prove any of the charges against them. In these cirumstances, we
find no satisfactory reason to interfere with the conclusion of the
learned Judges of the High Court that the charge of conspiracy
against all the four accused and the other charges against Anil and
Naresh have not been proved satisfactorily.

E The circumstances found by the trial court and the learned
Judges of the High Court to have been proved satisfactorily against
Henry are these :

(\) His presence along with Sunil in the panda! at the
Shiva temple in Tinsukhia town in the forenoon and
F afternoon of 26.3.1975 his offer of sweets to San jay and
other boys, P.Ws. 12 and 13, during that time ; his
calling Sanjay when he :was moving away from the
panda! with his sister, P.W. 21 with an offer of more
sweets to him; and his continued stay in the panda!
along with Sunil and Sanjay even after P.Ws. 12, 13 and
G 21 left the placc,the last of them at about 5.30 p.m.

(2) Receipt at the Tinsukuia Police Station on 27.3.1975,
of the packet containing inter a/ia the pair of shorts,
M.Ex. 26 and the letter, M.Ex. 2 written in English
and addressed to "Shri Chabil Das, Siding," demand-
inii a ransom of Rs. 3 lakhs for the return of Sanjay

"
H.W. ROBERTS v. ASSAM (Varadarajan, J.) 555

by 6 p. m. on the next day at the fixed place on pain .A
of murder of the boy in case of default. The shorts,
M. Ex. 26 have b!en identified by S anjay's mother,
P.W. 19 to be those which S1njay was wearing
on the day of h;s disappearance. The hand-writing
expert, P.W. 1 has opined in his report, Ex. 2, on a
comparison of _the hand-writing contained in M. Ex. 2 B.
with the speciman hand-writing and signatures of
Henry, M.Exs. 11to14 obtained by P.W. 38 at Digboi
Police Station that M.Ex. 2 is in the hand-writing of
Henry.

(3)' Receipt 'of the telegram, M.Ex 13 by P. W.23 on 30.3. c
1975 to the effect "I am not satisfied _with yonr perfor-
. mance. Last chance for transaction. If you want
your item await instructions." M.Ex.3 the original
telegram was handed over to the Post Master, Moran,
P.W.9 on 29.3.1975 by Henry who has been identified
by P.W .9 in the test identification parade held by P.W. D•
2 as well as in the court during the trial. The hand-
writing expert, P_.W.1 has found M.Ex.3 to be in the
hand-writing of Henry in his.report, M. Ex. I.

(4) On 31.3.1975 P.W.23 had received the bearing envelope,
M.Ex.6 containing the letter, M.Ex.7 written in :ii
Hindi. The Hindi writing in Ex.M.7 has not been
proved to be in the hand-writing of any of the accused
but the hand-writing expert, P.W.1 has found the
address on the envelope, M.Ex.6 to be in the hand-
writing of Henry in his report, M.Ex.2.
F
(5) On 8.4.1975 P.W. 23 had received a telephone call
from Digboi asking him if he had received the letter
and when he answered in the affirmative he was asked
by the caller to come to Digboi if he wanted his son
back. In that conversation the amount to be paid by
P.W. 23 as ransom for return of his son was fixed at G
Rs. 40,000 and he was told by the caller that he
should come to the gate of the Church at Digboi where
he would find a letter underneath a stone and that he
should act according to the contents of that letter.
Accordingly, P.W. 23 and others went by a car, and

"
556 SUPREME COURT REPORTS [1985] 3 S.C.R.

P.W. 23 proceeded towards the gate of the Church
A
alone and found the letter, M.Ex. 5 written in English
·capital letters. That letter which has been recovered by
the police has been found by the hand-writing expert,
· P.W .. l to be in the hand-wriing of Henry in his report,
M.Ex. 2.
B
(6) On 10.4.1975 at about 7 or 7.30 p.m. Henry had booked
a call from Digboi Public call office to Tinsukhia
telephone No. 159 relating to P.W. 23 and was waiting
outside for the call to materialise. Then he was point-
ed out by the public telephone call office employee,
c • P.W~ 33 to the police who were keeping a watch· in
plain clothes. At the instance of the Sub-Inspector of
. police, P.W. 24 the constables, P. Ws. 26 and 34
cought hold of Henry when he tried to run away from
the place. In the pr0cess he kicked P. W. 34 and
bit one of his fingers. However, he was over-powered
and apprehended. As soon as P.W. 26 grabbed him he
said "I do not know about this matter." He was taken
from there by a police vehicle to the police station.
This is suspicious conduct on the part of Henry.

(7) On I0.4.1975!when interrogated by the Investigating
E Officer, Henry made a statement, Ex. 33 (admissible
portion) offering to show the place where the dead
body of the boy had been buried. On the next
day Henry took the police party and others inclu-
. ding the Political Officer and Executive Magistrate,
F P.W. 38 to a place situate by the side of a hillock in
the ONGC oil field area of Bapapung. From a mound
from which earth bad been disturbed and from
the surrounding area some skeletal remains including
'the skull bone, M.Ex. 48 were recovered by the police.
The skull bone, M.Ex. 48 has been found by the super-
G imposition test conducted by the experts, P.Ws. 27 and
28 of the Forensic Science Laboratory, Gauhati to be
the skull bone of Sanjay as per P. W. 28's report, Ex.
27.

(8) Henry has been idetificd in the test identification parade
ff ]leld by the Judicial Ma~istrate, P.W, 2 on 30.4.!97~
H.W. ROBERTS v. ASSAM (Varadarafan, J.) . 557.

by I 2 witnesses without any mistake and on 4.4.197.5
A
by the Post Master, Moran, P.W. 9 without any
mistake. Some of the witnesses who identified Henry
in the test identification parade as well as in the court
are P.Ws. 10, 14, 15, 17, 18, 26 and 29.
B
The _above are very strong circumstances which can safely
be relied upon. They form a complete chain pointing unerringly to '·'

the guilt of Henry and are inconsistent with his innocence: · We
were taken through the evidence by the learned Counsel for the
parties and we also perused the summary of the evidence given by
the learned Sessions Judge in paras 13 to 13 (43) of his judgment
We do not think it necessary to deal with the evidence of the wit- C
nesses in detail as we agree with the .courts below in regard to
these circumstances. Accordingly, we agree with the courts below
that Henry's guilt has been proved by the prosecution satisfactorily
beyond all reasonable doubt in respect of all the charges framed
against him except the one under s. 1208 l.P.C.
D
As regards Sunil, there is the evidence of P.Ws. 14, 15 and 21
about his presence in the panda! at the Shiva temple in Tinsukhia
town in the forenoon and evening of26.3.1975. The pujari of the·
temple, P.W. 14 has identified Henry and Sunil as the persons who
were present in the panda! on 26.3. 1975 correctly both in the test
identification parade held by the Judicial Magistrate, P.W. 2 and E
in the court. P.W. 15, a businessman of Tinsukhia, who had gone
to the temple on 26.3.1975 also has identified Henry and Sunil both I
in the test identification parade held by P~W. 2 as well as in the·
court as the men who were standing· near a bamboo post of the,
panda! when Sanjay and other boys were playing nearby. He learnt F
on the next day about Sanjay missing. Sanjay's elder sister, P.W.
21 who went to fetch him from the panda! at about 5 or 5.30 p.m,
on 26.3.1975 'has stated in her evidence that Henry and Sunil, both
of whom she has identified correctly in the test identification parade
held by P.W. 2 as well as in the court, were present in the panda!
when Sanjay and other boys including P.W. 12 and 13 were playing. G
When she called Sanjay to go home with her one of those two men
called the other a• 'Driver' and asked him to get chocolates. Then
P.W. 21 left the place along with Sanjay, but after they. had covered
some distance one of the men called Sanjay by his name and said
that be would give him chocolates. Then Sanjay asked P.W, 21
to i:o aheaq and inform his ll)Other that i\e woqld 9ame in a short Q
558 SUPREME COURT REPORTS (1985] 3 S.C.R,

r while. So P.W. 21 had left the place leaving Sanjay behind. She
A has pointed out that it was Henry who sent.Sunil to fetch chocolates.
There is no reason for not accepting the evidence of these three
witnesses, P.Ws.· 14, 15 and 21 about the presence of Sunil along
· with Henry in the panda! at the Shiva temple in Tinsukhia town
on 26.3.1975 when Sanjay was playing there with other boys, P.Ws.
B 12 and 13. There i's also no reason for not accepting the evidence
of 1' .W. 21 that Henry called Sanjay when he was moving away
along with her back to the place saying he would give him choco-
lates, that he called Sunil as 'Driver' a few minutes earlier and
asked him to get chocolates, and that P.W. 21 left Sanjay behind
as desired by him and went away to her house at about 5.30 p.m.
c on the day of Sanjay's disappearance.

Sunil has been identified by 6 witnesses in all without any
mistake. There is also the evidence of P.W.41, the then officer in
charge of Sibsagar Police Station that he arrested Sunil on
14.4.1975 from a house in Sibsagar town cremation ground after a
D long chase and that he was until then hunting for him in vain from
11.4.1975. He has ~lated that Sunil started to flee as soon as he
saw him and that he succeeded in catching him after giving him a
chase It or 2 furlongs. In his confessional statement, Ex.7 Sunil
has admitted his presence with Henry in the panda! at Tinsukhia
on 26.3.1975 and his arrest from the cremation ground on 14 4.1975.
There are some other circumstances brought out in the evidence
E and his confessional statement extracted supra pointing to his guilt
unmistakably. Mr. Rajender Singh, learned Counsel for the
complainant submitted that circumstantial evidence against Sunil is
practically the same as in the case of Henry except that no recovery
has been made at his instance and that there is nothing on record
by way of his hand-writing unlike the case of Henry. Mr .. C.B.
F
Singh, learned Counsel who appeared for Sunil as amicus curiae
submitted· that having regard to Henry's letter, Ex. 2 in which he
had stated that he would kill (the victim) if the ransom amount is
• not paid by 6 p.m. on the next day it is probable thal Henry might
G have killed· Sanjay. He. submitted that there is no satisfactory
material on record to show that Sunil either did anything for
killing San jay or that he shared the intention of Henry to kill the
boy: He further submitted that Sunil's intention as reflected in
his confessional statement, Ex. 7 was only to kidnap and keep the
• T boy for two or three days and send him back after collecting the
ff
H.w. ROBERTS v. ASSAM (Varadarajan, J.) SS9
ransom. Having regard to all the circumstances OJ the case we
are inclined to accept this submission ot ·Mr. Singh as being most
probable and reasonable. We hold that the offence proved
against Sunil is only kidnapping of Sanjay with intent to secretly
and wrongfully confine him, an offence punishable under s. 3(!5 I.P,C.
8
Henry had nothing to say when he was examined by the
the learned Sessions Jtijge on the question of the sentences to be
awarded to him except that he intended to file an appeal in the
High Court. The learned Sessions Judge has observed that the
·crimes committed by Henry are heinous and he had held Sanjay
for ransom and that 1t is a fit case in which the extreme. penalty of C
the law is called for as regards Henry. Accordingly, he sentenced
Henry to death under s.302 read with s 34 I.P.C., imprisonment
for life under s. 364 read with s.34 l.P.C., rigorous imprisonment
for seven years under section 201 read with s.34 I.P.C., Land
rigorous imprisonment for five years under s. 387 read with s. 34
LP .C., and directed the sentences to run concurrently. The
learned Judges of the High Court have agreed completely with
reasons given by the learned Session~ Judge for awarding the
sentence of death to Henry an:! they have confirmed all the
sentences awarded to him and accepted the death sentence
reference relating to him as mentioned above. We are of the
opinion that the offences committed by Henry, the originator of the E
idea of kidnapping children of rich people for extracting ransom,
are very heinous and pre-planned. He had been attempting to
extract money· from the unfortunate boy's father, P. W. 23 even
after the boy had been murdered by making the father to believe
that the boy was aliv• and would bo returned to him if he paid the
ransom. In our opinion, this is one of the rarest of rare cases in
which the extreme penalty of death is called for the murder of the F
innocent young boy, Sanjay in cold blood after he had been kid-
napped with promise to be given sweets. We, therefore, confirm the
sentence of death and the other sentences awarded to Henry by the
High Court under ss. 302, 364, 201 and 387 I.P.C. and dismiss
Criminal Appeal No. 545 of 1982 filed by him. We allow Criminal G
Appeal No. 209 of 1983 filed by Chabil Prasad Agarwala, P.W. 23
against the acquittal ofSuoil, Anil and Naresh in part and convict only
Sunil under s.365 I.P.C. for having kidnapped Sanjay in order to sec-
retly and wrongfully confine him and sentence him to nndergo rigo-
rons imprisonment for seven years and dismiss that appeal in other
respects. We reject Criminal Appeal No.210 of 1983 filed by the ff
SUPREME COURT REPORTS .(1985] 3 $.C.R.
State of Assam against the rejection of the death sentence
A , reference in regard to Sunil and dis.iiiss Criminal Appeals Nos.
212 'and 213 of 1983 filed by the State of Assam against the
acquittal of Naresh in Criminal Appeal No.25 of 1981 and of
Anil in Criminal Appeal No. 24of1981, both on the file of the
High Court, and allow Criminal Appeal No.211 of 1983 filed by
. the State of Assam against the acquittal of Sunil in Crimina1
B Aopeal No: 19 of 1981 on the file of the High Court as indicated
in Criminal Appeal No.20~, of 1983 and dismiss it in other
respects. The sentences of imprisonment awarded to Henry by
the triai court and confirmed by the High Court and by us shalr
·run concurrently an·d merge with the sentence of death.
c

M.L.A Criminal Aprea/ Nos. 545/82, 210/83,
212-13/83 disnnssed and Criminal
Appeal No. 209 Allowed.

I .