Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELH I
% Judgment delivered on: 02.04.2009
+ CRIMINAL APPEAL NO. 136 of 1994
RAGHUBIR SINGH ..... Appellant
- versus -
STATE .....Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Anurag Jain
For the Respondent : Mr. M.N. Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE P.K. BHASIN
1. Whether Reporters of local papers may be allowed to see
the Judgment?(Yes)
2. To be referred to the Reporter or not?(Yes)
3. Whether the judgment should be reported in the digest?(Yes)
BADAR DURREZ AHMED , J (ORAL)
1. This appeal is directed against the judgment of the learned Additional
Sessions Judge dated 13.05.1994 delivered in Sessions Case No. 23/92. The
case relates to FIR No. 466/91, registered under Sections 364/387/302/201
read with 34 of the Indian Penal Code (hereinafter referred to as „IPC‟) at
Police Station Rajouri Garden. Initially, two persons were sent up for trial,
including the appellant. The other person was his wife Ram Betti. The trial
court came to the conclusion that the prosecution did not establish any case
against the accused persons under Sections 364 and 387 read with Section 34
IPC. Consequently, both the accused persons, including the present appellant
were acquitted of the said charges. The trial court also came to the
conclusion that the prosecution failed to establish the charge against co-
Crl.A. 136/1994 Page 1 of 14
accused Ram Betti under Sections 302/201 IPC. Consequently, she was
acquitted of these charges also. However, the trial court found the present
appellant, Raghubir Singh, to be guilty of having committed the murder of a
boy named Suraj and he was convicted under Section 302 IPC as well as
Section 201 IPC. Thereafter, by a separate order on the point of sentence,
passed on the same day, the trial court sentenced the appellant to undergo
rigorous imprisonment for life under Section 302 IPC and to pay a fine of Rs.
3,000/- and in default thereof to undergo rigorous imprisonment for a period
of one year. For the offence under Section 201 IPC, the appellant was also
sentenced to undergo rigorous imprisonment for a period of five years and to
pay a fine of Rs. 1,000/- and in default thereof to suffer rigorous
imprisonment for a period of four months. All the sentences were directed to
run concurrently.
2. Being aggrieved by the impugned judgment and order on sentence, the
present appeal has been preferred by the appellant. The learned counsel for
the appellant submitted at the outset that though initially charge was also
under Section 364/387 IPC, the trial court had acquitted the parties of those
charges and the appellant has only been convicted under Sections 302/34/201
IPC. The learned counsel submitted that this was a case based purely on
circumstantial evidence and importantly this was a case where the dead body
of the deceased Suraj has not been recovered. He submitted that the four
circumstances which were put forth by the prosecution were:-
(I) The last seen evidence of PW12, Subhash;
Crl.A. 136/1994 Page 2 of 14
(II) The extra judicial confession allegedly made by
the appellant to PW8, Sohan Lal;
(III) The recovery of one pajama and a bali allegedly
belonging to the deceased Suraj from the house of the
appellant at his instance; and
(IV) The motive of extortion.
3. The learned counsel appearing on behalf of the appellant pointed out
that the trial court has not believed the testimony of PW12 Subhash. In this
connection, he drew our attention to paragraph 22 of the judgment where the
trial court was of the view that the behavior of the said witness i.e., PW12
Subhash was quite unnatural. The trial court concluded that it would not
have been possible for the said witness to identify either the accused persons
or the photographs of the boy and, therefore, it would not be safe to place
reliance on his testimony.
4. Insofar as the question of extra judicial confession made to PW8 Sohan
Lal is concerned, the learned counsel pointed out that PW8 Sohan Lal turned
hostile and consequently his testimony was discarded by the trial court. As
regards the motive of extortion, the learned counsel for the appellant
submitted that inasmuch as the appellant as also his co-accused have been
acquitted of the charges under Sections 364 and 387 IPC, there is no question
of there being any motive behind the alleged kidnapping for the purposes of
extortion of money. The learned counsel submitted that the only
Crl.A. 136/1994 Page 3 of 14
circumstance taken into consideration by the trial court for convicting the
present appellant was the circumstance of recovery of one pajama and a bali
belonging to the deceased Suraj from the house of the appellant at the
instance of the appellant. The learned counsel for the appellant also
submitted that the most vital and important aspect of the case is that the dead
body of Suraj has not been recovered and there is no circumstance on record
which would enable us to infer that Suraj is dead. He submitted that it is not
one thing that the body is not discovered and it is quite another thing that the
factum of death itself is not established. He submitted that unless and until
the factum of death is established either by direct evidence or by
circumstantial evidence, no case under Section 302 IPC can be made out. He
placed reliance on a recent decision of the Supreme Court in the case of K.T.
Palanisamy Vs. State of Tamil Nadu : (2008) 3 SCC 100 , wherein it has been
observed in the context of the case before the Supreme Court as under:-
“In this case, corpus delicti has not been proved. The
same need not be but the death as a fact must be proved.
Even death has not been proved in this case”
5. The learned counsel for the appellant also submitted that the alleged
recovery of pajama and bali allegedly belonging to Suraj is also not free
from doubt. He pointed out that first of all the recovery was made after three
months of the alleged date of the incident. The alleged incident took place on
13.06.1991 whereas the alleged recovery was on 06.09.1991. Secondly, he
pointed out that though the recovery was from village Sonamai, P.S. Jawa,
District Aligarh, UP which is outside the territory of Delhi, yet no local
Crl.A. 136/1994 Page 4 of 14
police involvement has been shown nor any independent witness has been
produced with regard to the recovery. Thirdly, it was submitted that the
appellant was available at all points of time and had not disappeared. He
submitted that in fact the appellant‟s house had already been searched
thoroughly much prior to the recovery. On this aspect of the matter, the
learned counsel made a reference to the testimony of PW4 Bankey Lal (father
of the boy, Suraj) where he stated that 2 ½ months after the incident, the
house of the appellant was searched. The said witness also stated that he
went to the village Sonamai twice and that the accused/appellant met him
only once and not the other time. In his testimony, the said witness has also
stated that on the first date when the house was searched, the
accused/appellant was present. The learned counsel submitted that from this
it can be inferred infers straightaway that on the date of the alleged recovery
i.e., on 06.09.1991, the accused was not present at the time of the recovery.
He also referred to the testimony of PW4 Bankey Lal to indicate that all the
writing work with regard to the recovery of pajama and bali was done at the
Chowki and not at the place of recovery. Therefore, the learned counsel for
the appellant submitted that the factum of the recovery itself is not free from
doubt.
6. The learned counsel for the appellant supported the judgment and
order on sentence. He submitted that it is not necessary that the dead body
must be recovered i.e., there must be corpus delicti . He submitted that even
where the dead body is not recovered, if it can be established from the
Crl.A. 136/1994 Page 5 of 14
circumstances that the death has taken place then that would be sufficient to
convict a person provided the other circumstances prove the guilt of the
accused. He placed reliance on a decision of the Supreme Court in the case
of Mani Kumar Thapa Vs. State of Sikkim: AIR 2002 SC 2920. In
particular he referred to paragraph (4) four of the said decision, where the
Supreme Court held as under:-
“It is a well-settled principle in law that in a trial for
murder, it is neither an absolute necessity nor an essential
ingredient to establish corpus delicti. The fact of the
death of the deceased must be established like any other
fact. Corpus delicti in some cases may not be possible to
be traced or recovered. There are a number of
possibilities where a dead body could be disposed of
without trace, therefore, if the recovery of the dead body
is to be held to be mandatory to convict an accused, in
many a case the accused would manage to see that the
dead body is destroyed which would afford the accused
complete immunity from being held guilty or from being
punished. What is therefore required in law to base a
conviction for an offence of murder is that there should
be reliable and plausible evidence that the offence of
murder like any other factum of death was committed
and it must be proved by direct or circumstantial
evidence albeit the dead body may not be traced.”
The Supreme Court placed reliance on its earlier decision in the case of
Sevaka Perumal and another v. State of Tamil Nadu : 1991 (3) SCC 471.
7. Mr. Dudeja, the learned additional public prosecutor, who appeared for
the State also placed reliance on a decision of the Division Bench of the
Gujarat High Court in Kantu Chhagan Vs. State of Gujarat: 1982 Crl. L. J.
1110. In that decision, several decisions of the Supreme Court were referred
to including Raghav Prapanna Vs. State of U.P.: AIR 1963 SC 74 and
Crl.A. 136/1994 Page 6 of 14
Rama Nand Vs. State of Himachal Pradesh: AIR 1981 SC 738 . After
referring to the said decisions, the Division Bench of the Gujarat High Court
came to the conclusion that:-
“Therefore, it seems to be well settled that where the
inference of guilt of an accused person is to be drawn
from circumstantial evidence alone, those circumstances
must be established beyond reasonable doubt and they
should point towards the guilt of the accused, meaning
thereby that the totality of the circumstances must
unerringly lead to the conclusion that within all human
probability the accused and none else had committed the
crime in question.”
8. While coming to this conclusion, the Division Bench of the Gujarat
High Court had also set out at length what had been stated in the Supreme
Court‟s decision in Rama Nand ( supra ). The Supreme Court in that decision
had taken the view that the traditional provision where the discovery of a
dead body was a must and that it was the only mode of proving corpus delicti
in a murder had to be come up in view of the circumstance of the change in
law. Earlier, according to the Supreme Court, this had to be observed as
execution was the only punishment for murder and the need for adhering to
this cautionary rule was greater. However, since the punishment now can
also be life imprisonment, the Supreme Court observed that a blind adherence
to this old doctrine would open the door wide open for many a heinous
murderer to escape with impunity simply because he was cunning and clever
enough to destroy the body of the victim. The Supreme Court was of the
view that where a dead body of the victim in a murder case is not found,
other cogent and satisfactory proof of the homicidal death of the victim must
Crl.A. 136/1994 Page 7 of 14
be adduced by the prosecution. Such proof may be by the direct ocular
account of an eye-witness or by circumstantial evidence, or by both. The
Supreme Court further observed that where the fact of corpus delicti , i.e.,
„homicidal death‟ is sought to be established by circumstantial evidence
alone, the circumstances must be of a clinching and definitive character
unerringly leading to the inference that the victim concerned has met a
homicidal death. The Supreme Court, however, further observed that even
so, this principle of caution cannot be pushed too fact as requiring absolute
proof. Perfect proof is seldom to be had in this imperfect world and that
absolute certainty is a myth.
9. Relying on these decisions, Mr. Dudeja submitted that the fact that
PW12 had last seen the boy Suraj in the company of the appellant and his co-
accused and then had also seen the appellant and co-accused together in the
absence of Suraj meant that they had done away with Suraj and that it can be
inferred from this fact coupled with the factum of the recovery of the pajama
and the bali . Mr. Dudeja also submitted that there was no doubt about the
recovery as the pajama as well as the bali were in fact recovered from the
house of the appellant at his instance. He also submitted that another
important circumstance was the testimony of the photographer PW5
Madanlal Senger. He submitted that though this witness had turned hostile,
the first portion of his testimony can be relied upon where he stated that he
had seen the photograph of the boy which was Ex. P-11 and he admitted that
he had taken this photograph. Mr. Dudeja submitted that photographer PW5
Crl.A. 136/1994 Page 8 of 14
was at Kasganj, District Etah, UP and the boy Suraj was a resident of Delhi.
The very fact that the photograph of the boy was taken at Kasganj, District
Etah, UP meant that the boy had been taken there and had been
photographed. This coupled with the fact that PW12 Subhash had last seen
the boy Suraj in the company of the appellant and co-accused establishes the
factum of the death of Suraj and that too at the hands of the appellant.
10. We may note that the prosecution case is that on 13.06.1991, one Beer
Singh S/o Shiv Charan: resident of B-142, Raghbir Nagar, New Delhi came
to the Police Post and made a report that Suraj, son of his brother PW4
Bankey Lal, aged about four years, who had wheatish complexion and was
about 2 ½ feet in height with stout body, round face and curly hair, who was
wearing a cream coloured kurta pajama with a golden bali in his left ear had
gone to play in the park at about 8.00 a.m. but had not returned since.
Thereafter, a search had been conducted and the report of the missing of the
boy was recorded. On the next date i.e., on 14.06.1991, PW4 Bankey Lal,
father of the said boy Suraj came to the Police Post and lodged a similar
report stating that he had made efforts to trace out his son but he was not
traceable. He had expressed his suspicion that somebody had kidnapped his
son. Consequently, the police registered a case, initially, under Section 363
IPC. In the course of the investigation on 16.06.1991, PW4 Bankey Lal
produced a letter which he had allegedly received through post and through
which a payment for ransom of Rs. 60,000/- was made in default of which it
was stated that the boy would be killed. Thereafter in the course of the
Crl.A. 136/1994 Page 9 of 14
investigation, the accused persons were arrested and the present appellant
Raghbir Singh is said to have made a disclosure statement on 03.09.1991.
Thereafter the offences punishable under Sections 302/201 IPC were added.
After completing the investigation, the challan was put up. In all, thirteen
prosecution witnesses were examined and after going through the entire
evidence on record, the trial court acquitted the co-accused Ram Betti of all
charges and convicted the present appellant under Sections 302/201 IPC.
11. We have also indicated the main points of challenge by the learned
counsel for the appellant. The first point to be addressed in this case is
whether the factum of death of the boy Suraj has been established by the
prosecution either through direct evidence or circumstantially. We may note
that as far back as in 1962 when the Supreme Court was confronted with a
similar question in the case of Raghav (supra) , the Court took the view that
the mere fact that person was missing was not sufficient for holding that the
person must have been murdered. In that case, two persons named Kamla
and Madhusudan were missing, the Supreme Court observed that the fact that
Kamla and Madhusudan had not been seen since the evening of 05.04.1961
and that blood stains, not proved to be of human origin, were found in a
room, were not sufficient for holding that they must have been murdered,
however strongly one may suspect it in view of the unlikelihood of their
having left the house for any other place. Since then several decisions of the
Supreme Court have pointed towards the fact that although it is not essential
that a dead body must be recovered for returning a conviction for the offence
Crl.A. 136/1994 Page 10 of 14
of murder, it must be proved a fact that homicidal death has taken place. The
proof of homicidal death may be through direct evidence or it may be
through circumstantial evidence, but death as a fact has to be established. In
this case, we find that the only circumstances which the prosecution has been
able to point out, which according to them lead to the inference that
homicidal death has been taken place, are:-
(I) Suraj is missing;
(II) He was last seen in the company of the appellant
and his wife by PW12 Subhash;
(III) One pajama and bali are said to have been
recovered from the house of the appellant at his pointing;
and
(IV) That the boy was photographed at Kasganj by the
photographer PW5.
12. With regard to the alleged recovery from the testimony of PW4 itself,
we find that PW4 Bankey Lal had gone to the appellant‟s house at his village
Sonamai on two occasions. He stated that on the first occasion, the appellant
was present and that on that occasion itself which was roughly about 2 ½
months after the incident, the house was searched. At that point of time,
neither the pajama nor the bali were discovered or recovered. The said
witness further stated that out of his two visits to the appellant‟s house at
village Sonamai, it is only on one occasion that he met the appellant. Since
this witness has already stated that he met the appellant on the first visit, it
Crl.A. 136/1994 Page 11 of 14
can be inferred that on his second visit when the alleged recovery is said to
have taken place i.e. 06.09.1991, the appellant was not present. This
circumstance in itself makes the recovery doubtful.
13. In the absence of the factum of recovery having been established, we
are left now with the other two circumstances, namely, that PW12 is said to
have seen the boy in the company of the appellant and his wife on 17.06.1991
near the bridge on the way to Kasganj and the other circumstance being the
photographs taken by the photographer PW5. If we examine the testimony of
PW12 in detail, we find that he stated that he along with his brother were en
route to Kasganj from his village in District Bulandshehar. On the way they
stopped at the bridge near the two canals and he observed the appellant and
his wife to be sitting near the canal and that the boy Suraj was with them. He
stated that for five or seven minutes, the three of them continued to be sitting
near the canal and thereafter they left. He further stated that about 45
minutes later, the appellant and his wife returned minus the boy Suraj. Of
course this witness did not think this incident to be of much importance
inasmuch as he never reported the same. The said witness has further stated
that after 17.06.1991 he had been to Kasganj two or three times and once in
the month of September he had again seen the appellant and his wife with the
police on the same bridge where he had earlier seen them with the child. It is
only thereafter that this witness is supposed to have come forward and that he
disclosed that he had seen the appellant and his wife in the company of the
child Suraj on 17.06.1991. We may observe that first of all, the mere fact
Crl.A. 136/1994 Page 12 of 14
that PW12 allegedly saw the missing boy Suraj in the company of the
appellant and his wife does not lead to the conclusion that Suraj is dead. The
mere fact that at one point of time he saw them together and 45 minutes later
he only saw the appellant and his wife minus the child does not mean that the
child had been disposed of or murdered or that the child had died in any other
manner. Apart from this fact, we find it a little surprising that the same
witness at two different points of time, happened to be at the same bridge
when in the first instance i.e. on 17.06.1991 he saw the appellant and his wife
in the company of Suraj and on the second instance of September, 1991 again
he saw the appellant, but this time in the company of the police. The
probability of this co-incidence is infinitesimally small.
14. If we consider the testimony of PW5 to be truthful to the extent that he
did photograph the boy, it is not established as to on which day he had
photographed the boy. There is every possibility that the boy could have
been photographed after 17.06.1991. It cannot be ruled out that the
photographs could have been taken either before 17.06.1991 or after
17.06.1991. Once we come to such conclusion, we cannot rule out the fact
that even the testimony of PW12 cannot be regarded as the last seen
evidence. If the boy had been photographed after 17.06.1991, then the
testimony of PW12 loses relevance insofar as the question of establishing the
factum of death of Suraj is concerned.
15. For all these reasons, we are of the view that the death of Suraj has not
Crl.A. 136/1994 Page 13 of 14
been established as a fact either directly or even circumstantially. That being
the position, the appellant cannot be convicted for the offence punishable
under Section 302 IPC as also under Section 201 IPC. We may also note that
even if we assume that the recovery has been established that by itself would
not establish the death of Suraj. We may note that in K.T. Palanisamy Vs.
State of Tamilnadu (supra), the Supreme Court was confronted with a
similar situation and the only circumstance was the recovery of golden chain
coupled with the last seen evidence. The Supreme Court observed that if
assuming that the golden chain has been recovered at the instance of the
appellant therein, the same by itself, in their considered view, would not be
sufficient for upholding the conviction under Section 302 IPC. Under similar
circumstances, we feel that even if we assume the recovery to be made as
alleged by the prosecution that by itself would not be a circumstance
sufficient enough to convict the appellant under Section 302/201 IPC.
15. As such, we are of the view that the appellant is entitled to an order of
acquittal. Consequently, we set aside the impugned judgment and order on
sentence and acquit the appellant of all charges. The bail bond stands
cancelled and the sureties stand discharged. This appeal is allowed and
stands disposed of.
BADAR DURREZ AHMED, J
APRIL 02, 2009/sb P.K. BHASIN, J
Crl.A. 136/1994 Page 14 of 14
% Judgment delivered on: 02.04.2009
+ CRIMINAL APPEAL NO. 136 of 1994
RAGHUBIR SINGH ..... Appellant
- versus -
STATE .....Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Anurag Jain
For the Respondent : Mr. M.N. Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE P.K. BHASIN
1. Whether Reporters of local papers may be allowed to see
the Judgment?(Yes)
2. To be referred to the Reporter or not?(Yes)
3. Whether the judgment should be reported in the digest?(Yes)
BADAR DURREZ AHMED , J (ORAL)
1. This appeal is directed against the judgment of the learned Additional
Sessions Judge dated 13.05.1994 delivered in Sessions Case No. 23/92. The
case relates to FIR No. 466/91, registered under Sections 364/387/302/201
read with 34 of the Indian Penal Code (hereinafter referred to as „IPC‟) at
Police Station Rajouri Garden. Initially, two persons were sent up for trial,
including the appellant. The other person was his wife Ram Betti. The trial
court came to the conclusion that the prosecution did not establish any case
against the accused persons under Sections 364 and 387 read with Section 34
IPC. Consequently, both the accused persons, including the present appellant
were acquitted of the said charges. The trial court also came to the
conclusion that the prosecution failed to establish the charge against co-
Crl.A. 136/1994 Page 1 of 14
accused Ram Betti under Sections 302/201 IPC. Consequently, she was
acquitted of these charges also. However, the trial court found the present
appellant, Raghubir Singh, to be guilty of having committed the murder of a
boy named Suraj and he was convicted under Section 302 IPC as well as
Section 201 IPC. Thereafter, by a separate order on the point of sentence,
passed on the same day, the trial court sentenced the appellant to undergo
rigorous imprisonment for life under Section 302 IPC and to pay a fine of Rs.
3,000/- and in default thereof to undergo rigorous imprisonment for a period
of one year. For the offence under Section 201 IPC, the appellant was also
sentenced to undergo rigorous imprisonment for a period of five years and to
pay a fine of Rs. 1,000/- and in default thereof to suffer rigorous
imprisonment for a period of four months. All the sentences were directed to
run concurrently.
2. Being aggrieved by the impugned judgment and order on sentence, the
present appeal has been preferred by the appellant. The learned counsel for
the appellant submitted at the outset that though initially charge was also
under Section 364/387 IPC, the trial court had acquitted the parties of those
charges and the appellant has only been convicted under Sections 302/34/201
IPC. The learned counsel submitted that this was a case based purely on
circumstantial evidence and importantly this was a case where the dead body
of the deceased Suraj has not been recovered. He submitted that the four
circumstances which were put forth by the prosecution were:-
(I) The last seen evidence of PW12, Subhash;
Crl.A. 136/1994 Page 2 of 14
(II) The extra judicial confession allegedly made by
the appellant to PW8, Sohan Lal;
(III) The recovery of one pajama and a bali allegedly
belonging to the deceased Suraj from the house of the
appellant at his instance; and
(IV) The motive of extortion.
3. The learned counsel appearing on behalf of the appellant pointed out
that the trial court has not believed the testimony of PW12 Subhash. In this
connection, he drew our attention to paragraph 22 of the judgment where the
trial court was of the view that the behavior of the said witness i.e., PW12
Subhash was quite unnatural. The trial court concluded that it would not
have been possible for the said witness to identify either the accused persons
or the photographs of the boy and, therefore, it would not be safe to place
reliance on his testimony.
4. Insofar as the question of extra judicial confession made to PW8 Sohan
Lal is concerned, the learned counsel pointed out that PW8 Sohan Lal turned
hostile and consequently his testimony was discarded by the trial court. As
regards the motive of extortion, the learned counsel for the appellant
submitted that inasmuch as the appellant as also his co-accused have been
acquitted of the charges under Sections 364 and 387 IPC, there is no question
of there being any motive behind the alleged kidnapping for the purposes of
extortion of money. The learned counsel submitted that the only
Crl.A. 136/1994 Page 3 of 14
circumstance taken into consideration by the trial court for convicting the
present appellant was the circumstance of recovery of one pajama and a bali
belonging to the deceased Suraj from the house of the appellant at the
instance of the appellant. The learned counsel for the appellant also
submitted that the most vital and important aspect of the case is that the dead
body of Suraj has not been recovered and there is no circumstance on record
which would enable us to infer that Suraj is dead. He submitted that it is not
one thing that the body is not discovered and it is quite another thing that the
factum of death itself is not established. He submitted that unless and until
the factum of death is established either by direct evidence or by
circumstantial evidence, no case under Section 302 IPC can be made out. He
placed reliance on a recent decision of the Supreme Court in the case of K.T.
Palanisamy Vs. State of Tamil Nadu : (2008) 3 SCC 100 , wherein it has been
observed in the context of the case before the Supreme Court as under:-
“In this case, corpus delicti has not been proved. The
same need not be but the death as a fact must be proved.
Even death has not been proved in this case”
5. The learned counsel for the appellant also submitted that the alleged
recovery of pajama and bali allegedly belonging to Suraj is also not free
from doubt. He pointed out that first of all the recovery was made after three
months of the alleged date of the incident. The alleged incident took place on
13.06.1991 whereas the alleged recovery was on 06.09.1991. Secondly, he
pointed out that though the recovery was from village Sonamai, P.S. Jawa,
District Aligarh, UP which is outside the territory of Delhi, yet no local
Crl.A. 136/1994 Page 4 of 14
police involvement has been shown nor any independent witness has been
produced with regard to the recovery. Thirdly, it was submitted that the
appellant was available at all points of time and had not disappeared. He
submitted that in fact the appellant‟s house had already been searched
thoroughly much prior to the recovery. On this aspect of the matter, the
learned counsel made a reference to the testimony of PW4 Bankey Lal (father
of the boy, Suraj) where he stated that 2 ½ months after the incident, the
house of the appellant was searched. The said witness also stated that he
went to the village Sonamai twice and that the accused/appellant met him
only once and not the other time. In his testimony, the said witness has also
stated that on the first date when the house was searched, the
accused/appellant was present. The learned counsel submitted that from this
it can be inferred infers straightaway that on the date of the alleged recovery
i.e., on 06.09.1991, the accused was not present at the time of the recovery.
He also referred to the testimony of PW4 Bankey Lal to indicate that all the
writing work with regard to the recovery of pajama and bali was done at the
Chowki and not at the place of recovery. Therefore, the learned counsel for
the appellant submitted that the factum of the recovery itself is not free from
doubt.
6. The learned counsel for the appellant supported the judgment and
order on sentence. He submitted that it is not necessary that the dead body
must be recovered i.e., there must be corpus delicti . He submitted that even
where the dead body is not recovered, if it can be established from the
Crl.A. 136/1994 Page 5 of 14
circumstances that the death has taken place then that would be sufficient to
convict a person provided the other circumstances prove the guilt of the
accused. He placed reliance on a decision of the Supreme Court in the case
of Mani Kumar Thapa Vs. State of Sikkim: AIR 2002 SC 2920. In
particular he referred to paragraph (4) four of the said decision, where the
Supreme Court held as under:-
“It is a well-settled principle in law that in a trial for
murder, it is neither an absolute necessity nor an essential
ingredient to establish corpus delicti. The fact of the
death of the deceased must be established like any other
fact. Corpus delicti in some cases may not be possible to
be traced or recovered. There are a number of
possibilities where a dead body could be disposed of
without trace, therefore, if the recovery of the dead body
is to be held to be mandatory to convict an accused, in
many a case the accused would manage to see that the
dead body is destroyed which would afford the accused
complete immunity from being held guilty or from being
punished. What is therefore required in law to base a
conviction for an offence of murder is that there should
be reliable and plausible evidence that the offence of
murder like any other factum of death was committed
and it must be proved by direct or circumstantial
evidence albeit the dead body may not be traced.”
The Supreme Court placed reliance on its earlier decision in the case of
Sevaka Perumal and another v. State of Tamil Nadu : 1991 (3) SCC 471.
7. Mr. Dudeja, the learned additional public prosecutor, who appeared for
the State also placed reliance on a decision of the Division Bench of the
Gujarat High Court in Kantu Chhagan Vs. State of Gujarat: 1982 Crl. L. J.
1110. In that decision, several decisions of the Supreme Court were referred
to including Raghav Prapanna Vs. State of U.P.: AIR 1963 SC 74 and
Crl.A. 136/1994 Page 6 of 14
Rama Nand Vs. State of Himachal Pradesh: AIR 1981 SC 738 . After
referring to the said decisions, the Division Bench of the Gujarat High Court
came to the conclusion that:-
“Therefore, it seems to be well settled that where the
inference of guilt of an accused person is to be drawn
from circumstantial evidence alone, those circumstances
must be established beyond reasonable doubt and they
should point towards the guilt of the accused, meaning
thereby that the totality of the circumstances must
unerringly lead to the conclusion that within all human
probability the accused and none else had committed the
crime in question.”
8. While coming to this conclusion, the Division Bench of the Gujarat
High Court had also set out at length what had been stated in the Supreme
Court‟s decision in Rama Nand ( supra ). The Supreme Court in that decision
had taken the view that the traditional provision where the discovery of a
dead body was a must and that it was the only mode of proving corpus delicti
in a murder had to be come up in view of the circumstance of the change in
law. Earlier, according to the Supreme Court, this had to be observed as
execution was the only punishment for murder and the need for adhering to
this cautionary rule was greater. However, since the punishment now can
also be life imprisonment, the Supreme Court observed that a blind adherence
to this old doctrine would open the door wide open for many a heinous
murderer to escape with impunity simply because he was cunning and clever
enough to destroy the body of the victim. The Supreme Court was of the
view that where a dead body of the victim in a murder case is not found,
other cogent and satisfactory proof of the homicidal death of the victim must
Crl.A. 136/1994 Page 7 of 14
be adduced by the prosecution. Such proof may be by the direct ocular
account of an eye-witness or by circumstantial evidence, or by both. The
Supreme Court further observed that where the fact of corpus delicti , i.e.,
„homicidal death‟ is sought to be established by circumstantial evidence
alone, the circumstances must be of a clinching and definitive character
unerringly leading to the inference that the victim concerned has met a
homicidal death. The Supreme Court, however, further observed that even
so, this principle of caution cannot be pushed too fact as requiring absolute
proof. Perfect proof is seldom to be had in this imperfect world and that
absolute certainty is a myth.
9. Relying on these decisions, Mr. Dudeja submitted that the fact that
PW12 had last seen the boy Suraj in the company of the appellant and his co-
accused and then had also seen the appellant and co-accused together in the
absence of Suraj meant that they had done away with Suraj and that it can be
inferred from this fact coupled with the factum of the recovery of the pajama
and the bali . Mr. Dudeja also submitted that there was no doubt about the
recovery as the pajama as well as the bali were in fact recovered from the
house of the appellant at his instance. He also submitted that another
important circumstance was the testimony of the photographer PW5
Madanlal Senger. He submitted that though this witness had turned hostile,
the first portion of his testimony can be relied upon where he stated that he
had seen the photograph of the boy which was Ex. P-11 and he admitted that
he had taken this photograph. Mr. Dudeja submitted that photographer PW5
Crl.A. 136/1994 Page 8 of 14
was at Kasganj, District Etah, UP and the boy Suraj was a resident of Delhi.
The very fact that the photograph of the boy was taken at Kasganj, District
Etah, UP meant that the boy had been taken there and had been
photographed. This coupled with the fact that PW12 Subhash had last seen
the boy Suraj in the company of the appellant and co-accused establishes the
factum of the death of Suraj and that too at the hands of the appellant.
10. We may note that the prosecution case is that on 13.06.1991, one Beer
Singh S/o Shiv Charan: resident of B-142, Raghbir Nagar, New Delhi came
to the Police Post and made a report that Suraj, son of his brother PW4
Bankey Lal, aged about four years, who had wheatish complexion and was
about 2 ½ feet in height with stout body, round face and curly hair, who was
wearing a cream coloured kurta pajama with a golden bali in his left ear had
gone to play in the park at about 8.00 a.m. but had not returned since.
Thereafter, a search had been conducted and the report of the missing of the
boy was recorded. On the next date i.e., on 14.06.1991, PW4 Bankey Lal,
father of the said boy Suraj came to the Police Post and lodged a similar
report stating that he had made efforts to trace out his son but he was not
traceable. He had expressed his suspicion that somebody had kidnapped his
son. Consequently, the police registered a case, initially, under Section 363
IPC. In the course of the investigation on 16.06.1991, PW4 Bankey Lal
produced a letter which he had allegedly received through post and through
which a payment for ransom of Rs. 60,000/- was made in default of which it
was stated that the boy would be killed. Thereafter in the course of the
Crl.A. 136/1994 Page 9 of 14
investigation, the accused persons were arrested and the present appellant
Raghbir Singh is said to have made a disclosure statement on 03.09.1991.
Thereafter the offences punishable under Sections 302/201 IPC were added.
After completing the investigation, the challan was put up. In all, thirteen
prosecution witnesses were examined and after going through the entire
evidence on record, the trial court acquitted the co-accused Ram Betti of all
charges and convicted the present appellant under Sections 302/201 IPC.
11. We have also indicated the main points of challenge by the learned
counsel for the appellant. The first point to be addressed in this case is
whether the factum of death of the boy Suraj has been established by the
prosecution either through direct evidence or circumstantially. We may note
that as far back as in 1962 when the Supreme Court was confronted with a
similar question in the case of Raghav (supra) , the Court took the view that
the mere fact that person was missing was not sufficient for holding that the
person must have been murdered. In that case, two persons named Kamla
and Madhusudan were missing, the Supreme Court observed that the fact that
Kamla and Madhusudan had not been seen since the evening of 05.04.1961
and that blood stains, not proved to be of human origin, were found in a
room, were not sufficient for holding that they must have been murdered,
however strongly one may suspect it in view of the unlikelihood of their
having left the house for any other place. Since then several decisions of the
Supreme Court have pointed towards the fact that although it is not essential
that a dead body must be recovered for returning a conviction for the offence
Crl.A. 136/1994 Page 10 of 14
of murder, it must be proved a fact that homicidal death has taken place. The
proof of homicidal death may be through direct evidence or it may be
through circumstantial evidence, but death as a fact has to be established. In
this case, we find that the only circumstances which the prosecution has been
able to point out, which according to them lead to the inference that
homicidal death has been taken place, are:-
(I) Suraj is missing;
(II) He was last seen in the company of the appellant
and his wife by PW12 Subhash;
(III) One pajama and bali are said to have been
recovered from the house of the appellant at his pointing;
and
(IV) That the boy was photographed at Kasganj by the
photographer PW5.
12. With regard to the alleged recovery from the testimony of PW4 itself,
we find that PW4 Bankey Lal had gone to the appellant‟s house at his village
Sonamai on two occasions. He stated that on the first occasion, the appellant
was present and that on that occasion itself which was roughly about 2 ½
months after the incident, the house was searched. At that point of time,
neither the pajama nor the bali were discovered or recovered. The said
witness further stated that out of his two visits to the appellant‟s house at
village Sonamai, it is only on one occasion that he met the appellant. Since
this witness has already stated that he met the appellant on the first visit, it
Crl.A. 136/1994 Page 11 of 14
can be inferred that on his second visit when the alleged recovery is said to
have taken place i.e. 06.09.1991, the appellant was not present. This
circumstance in itself makes the recovery doubtful.
13. In the absence of the factum of recovery having been established, we
are left now with the other two circumstances, namely, that PW12 is said to
have seen the boy in the company of the appellant and his wife on 17.06.1991
near the bridge on the way to Kasganj and the other circumstance being the
photographs taken by the photographer PW5. If we examine the testimony of
PW12 in detail, we find that he stated that he along with his brother were en
route to Kasganj from his village in District Bulandshehar. On the way they
stopped at the bridge near the two canals and he observed the appellant and
his wife to be sitting near the canal and that the boy Suraj was with them. He
stated that for five or seven minutes, the three of them continued to be sitting
near the canal and thereafter they left. He further stated that about 45
minutes later, the appellant and his wife returned minus the boy Suraj. Of
course this witness did not think this incident to be of much importance
inasmuch as he never reported the same. The said witness has further stated
that after 17.06.1991 he had been to Kasganj two or three times and once in
the month of September he had again seen the appellant and his wife with the
police on the same bridge where he had earlier seen them with the child. It is
only thereafter that this witness is supposed to have come forward and that he
disclosed that he had seen the appellant and his wife in the company of the
child Suraj on 17.06.1991. We may observe that first of all, the mere fact
Crl.A. 136/1994 Page 12 of 14
that PW12 allegedly saw the missing boy Suraj in the company of the
appellant and his wife does not lead to the conclusion that Suraj is dead. The
mere fact that at one point of time he saw them together and 45 minutes later
he only saw the appellant and his wife minus the child does not mean that the
child had been disposed of or murdered or that the child had died in any other
manner. Apart from this fact, we find it a little surprising that the same
witness at two different points of time, happened to be at the same bridge
when in the first instance i.e. on 17.06.1991 he saw the appellant and his wife
in the company of Suraj and on the second instance of September, 1991 again
he saw the appellant, but this time in the company of the police. The
probability of this co-incidence is infinitesimally small.
14. If we consider the testimony of PW5 to be truthful to the extent that he
did photograph the boy, it is not established as to on which day he had
photographed the boy. There is every possibility that the boy could have
been photographed after 17.06.1991. It cannot be ruled out that the
photographs could have been taken either before 17.06.1991 or after
17.06.1991. Once we come to such conclusion, we cannot rule out the fact
that even the testimony of PW12 cannot be regarded as the last seen
evidence. If the boy had been photographed after 17.06.1991, then the
testimony of PW12 loses relevance insofar as the question of establishing the
factum of death of Suraj is concerned.
15. For all these reasons, we are of the view that the death of Suraj has not
Crl.A. 136/1994 Page 13 of 14
been established as a fact either directly or even circumstantially. That being
the position, the appellant cannot be convicted for the offence punishable
under Section 302 IPC as also under Section 201 IPC. We may also note that
even if we assume that the recovery has been established that by itself would
not establish the death of Suraj. We may note that in K.T. Palanisamy Vs.
State of Tamilnadu (supra), the Supreme Court was confronted with a
similar situation and the only circumstance was the recovery of golden chain
coupled with the last seen evidence. The Supreme Court observed that if
assuming that the golden chain has been recovered at the instance of the
appellant therein, the same by itself, in their considered view, would not be
sufficient for upholding the conviction under Section 302 IPC. Under similar
circumstances, we feel that even if we assume the recovery to be made as
alleged by the prosecution that by itself would not be a circumstance
sufficient enough to convict the appellant under Section 302/201 IPC.
15. As such, we are of the view that the appellant is entitled to an order of
acquittal. Consequently, we set aside the impugned judgment and order on
sentence and acquit the appellant of all charges. The bail bond stands
cancelled and the sureties stand discharged. This appeal is allowed and
stands disposed of.
BADAR DURREZ AHMED, J
APRIL 02, 2009/sb P.K. BHASIN, J
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