Judgment

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. 1 of 1981 in regard to two accused persons Henry Westmuller Roberts and Sunil Chandra Biswas and Criminal Appeal No. 19 of 1981 filed by those two condemned persons and Criminal Appeals Nos. 24 and 25 of 1981 filed by Naresh 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 referred to as Henry and Sunil respectively) to death under S. 302 read with S. 34 I.P.C. for the murder of a boy Sanjay alias Gettu Agarwala (hereinafter referred to as Sanjay), and to imprisonment for life under S. 364 read with S. 34 I.P.C. and rigorous imprisonment for seven years under S. 201 read with S., 34 I.P.C. and those two accused Henry and Sunil and accused Anil Chandra 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 with S. 34 I.P.C. The sentences awarded to all the four accused were directed to run concurrently. Henry, Sunil, Anil and Naresh were accused 1, 2, 3 and 4 respectively in the Sessions Court.

2. 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 1981 in full as regards Sunil and acquitted him and rejected the death sentence reference relating to him and allowed the appeal of Henry in part as regards his conviction under S. 120B I.P.C. and dismissed his appeal in other respects 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 387 I.P.C. and not guilty under S. 120B I.P.C. and maintained the sentence awarded to Henry by the Sessions Court: except in regard to the offence under S. 120B I.P.C. and acquitted the other three accused persons in full.

3. Henry has filed Criminal Appeal 545 of 1982 against his conviction and sentence awarded to him under Ss. 302, 364, 201 and 387 I.P.C. The deceased Sanjays father Chabil Prasad Agarwala. has filed Criminal Appeal No. 209 of 1983 against the acquittal of Sunil, Anil and Naresh in entirety. The State of 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. 221, 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 Anil in Criminal Appeal No. 24 of 1981. Henry who had been acquitted by the High Court under S. 120B I.P.C. is not a party. to Criminal Appeals Nos. 209 to 213 of 1983.

4. The case of the prosecution is this:

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 contractor of the ONGC at Sibsagar. These four accused entered into a conspiracy to kidnap minor children at Sibsagar, Dibrugarh 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 seven children including Sumita Agarwala, P.. W. 21 and the deceased Sanjay who was nine years old and studying in the Girls Hindi School.

5. There was a day long Holi (fagua) festival in Tinsukhia town on 26-3-1975. The people belonging to the Marwari community of Siding Bazar had erected a pandal near a Shiva temple in connection with the Holi festival. On that day three persons who c