Full Judgment Text
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CASE NO.:
Appeal (crl.) 371 of 2005
PETITIONER:
Yogesh Narain Saxena
RESPONDENT:
State of Uttaranchal
DATE OF JUDGMENT: 09/03/2007
BENCH:
C. K. Thakker & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
Lokeshwar Singh Panta, J.
The appellant has filed this appeal against the judgment
dated November 23, 2004, passed by a Division Bench of High
Court of Uttaranchal at Nainital confirming the conviction and
sentence for life in respect of the offence punishable under
Section 302 of the Indian Penal Code [for short "the IPC"] and
further rigorous imprisonment for seven years under Section
201, IPC, awarded by the Sessions Judge, Dehradun, in
Sessions Trial No. 77/79.
Brief facts, which led to the trial of the accused, are as
follows:-
Appellant-Yogesh Narain Saxena is a permanent resident
of Jabalpur. He was employed as Junior Electrician in Hydel
Department at Dak Pathhar, P.S. Vikas Nagar, District
Dehradun. The appellant for the last about 5-6 years prior to
the date of occurrence, i.e. 24.7.1979, was living in Quarter
No. 5(B), Gol Market, Dak Pathhar. Sunder Lal (P.W.3) along
with his three brothers, namely, Rajesh Kumar (P.W.4), Gopal
Krishna and Pradeep Kumar, were also living in the nearby
quarter at Gol Market. They were running small shops in
front of their quarters.
Sandeep alias Bunti, son of Sunder Lal (P.W.3), aged
about 10= years, was a student of Class VI. He was taking
tuition from Surender Singh Patia (P.W.1). In the evening of
24.7.1979, Sandeep had gone to the house of P.W.1 for taking
his routine lessons from P.W. 1. He came back to his home
after about one hour but again he went back to the house of
P.W. 1 to collect his inkpot which he by mistake left there.
Sandeep did not return to his home till about 9.00 p.m.
P.W.3, P.W.4 and other family members in the company of
neighbourers proceeded in search of Sandeep but he could not
be traced anywhere. P.W. 4 at 9.45 p.m. lodged a missing
report of Sandeep at Police Out-post. Sub-Inspector Jeet
Singh (P.W.8) along with three Constables immediately
reached Gol Market. They cordoned the area and initiated
search of Sandeep throughout the night in the market and
nearby places. According to the prosecution, the accused had
cordial and friendly relations with P.W. 3 being a neighbourer,
but he did not show any interest for searching the missing
boy.
It was alleged that in the morning of 25.07.1979, the
accused was seen present in his quarter by Gopal Krishna (not
produced), brother of P.W. 3 and P.W. 4. Gopal Krishna asked
the accused whether he had seen Sandeep anywhere in the
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vicinity, but the accused did not utter any word and on the
contrary, he got upset and quietly went inside his quarter.
After sometime, Rajendra Kumar (P.W.2) noticed the accused
locking the door of his quarter and going out. It was alleged
that on 25.07.1979 at about 9.00 a.m., P.W. 3 - father of
Sandeep, received a call on his telephone from Dehradun. The
caller demanded a ransom of Rs.20,000/- for returning his
son, Sandeep. Finally, the deal was settled for Rs.12,000/-.
P.W. 3 was asked by the caller to keep money near Bindal
Bridge, Dehradun, on the same night at 9.00 p.m. It was
alleged that the voice of the caller appeared somewhat like that
of the appellant. P.W.8 \026 the Sub Inspector Jeet Singh advised
P.W. 3 to keep the amount as demanded by the caller at the
appointed time and place under watch and control of the
police so that the police could apprehend the culprit.
According to the settled plan, P.W. 3 left the money at the
place as directed, but it appeared that the culprit some how
got information of the presence of the police so he did not turn
up till midnight to collect the ransom amount. Finally, P.W. 3
and the police party decided to go back to Dak Pathhar as
there was no useful purpose of waiting at that place.
It was in the forenoon of 26.07.1979 at about 3.45 p.m.
when P.W. 4, Jagdish Prasad (P.W. 9), a shop keeper in the
neighbourhood of P.W. 3 and P.W. 8 along with police
constables and other residents of the area were on the look
out of Sandeep near a place known as Khadar, they noticed
the accused coming from the opposite side of Gol Market. On
seeing the police party and other persons, the accused tried to
run away, but he was over-powered by the members of the
search party. On interrogation by P.W. 8, the Investigating
Officer, the accused disclosed that he had dumped the dead
body of Sandeep in his quarter and the same could be
recovered by him. Pursuant to the information supplied by
the appellant, the Investigating Officer recorded the said
information in writing marked as Exhibit Ka-28 in the case
diary.
The accused was arrested at Gol Market on the spot and
was taken to his quarter. The Investigating Officer asked the
accused to handover the keys of the lock of the outer door of
the quarter but he replied that he had lost the keys. The
Investigating Officer was left with no other option except to get
the locks of the outer door and also the lock of the other door
of the inner room of the quarter broken up in the presence of
witnesses. On entering the inner room of the quarter, the
accused opened a tin box in which dead body of Sandeep was
found lying. The dead body was removed from the box and on
visual examination marks of strangulation were noticed on the
neck of the deceased. The Investigating Officer recorded the
First Information Report under Sections 302/201 IPC on
26.7.1979 at 5.15 p.m. against the accused and held
necessary mazhar on the spot. The neck and knee of the
deceased were found tied with a piece of cloth when the dead
body was removed from the tin box. The dead body of the
deceased was despatched for autopsy which was performed
by Dr. P.D. Jakhmola (P.W. 5) on the following day. The
Investigating Officer recorded the statements of the material
witnesses on the spot. When the accused was further
interrogated on 27.07.1979, he took the Investigating Officer
and other witnesses to the rear portion of his quarter and got
a pair of chappal of the deceased recovered from a water drain.
After completion of the investigation and after receipt of post-
mortem report and other reports, charge sheet was filed
against the accused for offences punishable under Sections
302 and 201 IPC. The prosecution examined as many as nine
witnesses to support its version. In his statement under
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Section 313 of the Code of Criminal Procedure, 1973 [ for
short "the Cr.P.C."], the accused has denied his involvement in
the crime. In answer to question No.25 [viz., Do you have to
say anything more?], he replied as under:-
"I am working as Junior Electrician at Dak
Pathhar in Electricity Department since 1973.
Every one was satisfied with my work. I was
married on 10.10.78 in a Punjabi family due to
which some Punjabi families became annoyed
with me and threatened me to destroy. On
31.3.79, my father-in-law was transferred to
Uttar Kashi. My wife was in a family way. My
wife said that she would not be able to go in
future, so for some days, ’I want to go to Uttar
Kashi’. Therefore, I applied for earned leave from
10.7.79 to 30.7.79 and we left for Uttar Kashi on
10.7.79. On 23.7.79, myself and my wife came to
Dehradun from Uttar Kashi. We reached
Dehradun in the evening of 23.7.79 at 4.30 p.m.
My wife said that tomorrow we shall go to Dak
Pathhar for the cleaning of the house. On this, I
agreed and on 24.7.79, myself and my wife went
to Dak Pathhar in the morning. There cleaning
etc. was done and we took breakfast at 2 p.m.,
purchased biscuits from the shop of Sunder Lal.
In the evening at 5.00 p.m. we came back to
Dehradun. On 25.7.79 we went to Dehradun
market. On 24.7.79 at about 8.30p.m. we went
to take dinner at the house of one friend. Came
back at 10.30 in the night. On 26.7.79 we had
gone to Kanak Talkies to see a movie. At
Dehradun, I went to my brother-in-law at 3.30
p.m. who lives at 52-A, Connought Place,
Dehradun. There some police constables were
standing. I went inside the house. Two Sub-
Inspectors were sitting with my brother-in-law.
Thereafter Darogaji brought me to Dak Pathhar
on the pretext for making enquiries. They
brought me in car. Rajesh Kumar, witness also
sat with us from Dehradun. After taking me to
Dak Pathhar Out-post they said to me that they
will take search of my house. I said you may
take but what the matter was. Darogaji said that
you would know it later, first you proceed to your
house.
When I went to my house on 26.7.79 at
about 5.00 p.m. then I found that my quarter
was unlocked. I told Darogaji that there were no
locks. Darogaji asked me to shut up. Thereafter
Darogaji collected witnesses from the
neighbourhood and then entered into my quarter
with me. Inside, I saw that my doors were open.
I told that some one has entered into it but
Darogaji silenced me. After entering inside they
opened the big Box Ex.1. In this box, the dead
body of Sandeep was kept. Foul smell was
emanating. He closed the box then and there.
Meanwhile, a crowd had collected outside the
quarter. Hearing hue and cry, I was sent to
Police Out-post, Dak Pathhar. On 27.7.79, in the
morning at 7.30 I was sent to Dehradun jail."
The accused in his defence examined his wife Smt. Asha
Saxena (D.W.1), Vijay Singh (D.W.2) and Mahendra Pratap
Saxena (D.W.3). The trial court, after considering the evidence
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on record, recorded conviction and awarded sentence as
aforesaid. The accused-appellant preferred an appeal under
Section 374(2) Cr.P.C. The High Court, as noted above,
confirmed the conviction and sentence imposed upon the
appellant by the trial court.
The case of the prosecution rests on circumstantial
evidence. The circumstances on which the trial court placed
reliance for recording conviction are as follows:-
1. The accused is admittedly almost a next door
neighbour of the deceased. It is not controverted that
he was on visiting terms with the father and the uncles
of the deceased. In fact, he used to make purchase
from the shop of P.W. 3 Sunder Lal close-by. The
deceased who was a young lad of ten years used to call
the accused an uncle. In view of the proximity and
close affiliation, the accused had the faith and
confidence of the deceased besides having unrestricted
approach and access to him.
2. The accused had love marriage with a beautiful
Punjabi girl about 9 or 10 months prior to his
occurrence involving considerably extra financial
burden especially as she was in family way in July
1979. Apart from it, the accused owed considerable
money to the club which was to be repaid and which
has not so far been repaid.
3. The wife of the accused was out of station having left
on 10.7.1979 to visit her parents in Uttarkashi. The
accused was thus all by himself on 24.7.1979 to plan
a scheme for collecting money without any hindrance
from any quarter in the calm and quiet of his inner
room of the quarter.
4. Strangulation of a lad aged ten years needed
confidence and faith of the object to avoid cries and
shouts. It was possible for the accused only with the
deceased. It is noteworthy that the deceased had no
other injury on his person, that the dead body was
neatly and carefully packed in tin box (Ex.1) and that
the right hand was raised over the body clearly
indicating that it was dumped immediately after
strangulation.
5. There was no motive at all for any of the prosecution
witnesses to falsely implicate the accused. There is no
reason either to support that anybody, much less a
Punjabi, was aggrieved or agitated because of inter
caste marriage of the accused with a Punjabi girl.
Even if it be assumed for a second that some of them
had any ground to be displeased with the accused,
they had no reason at all to achieve that object by
killing the young son of one of their own company.
6. None else had any access or opportunity to plan dead
body of the deceased inside the quarter of the accused.
In any case, it was impossible for anybody else to plant
a fresh dead body inside the box of the accused.
7. The accused was in Gol Market in his quarter on
24.7.79 and left the quarter at about 5.30 a.m. the
next morning. What is noteworthy is that the accused
admitted his presence in his quarter along with his
wife upto the afternoon of 24.7.79 and not thereafter.
This was totally false. Moreover, the accused was
found to be in his quarter even in the early morning of
25.7.79 and when approached by his neighbour for
enquiry about the whereabouts of the deceased he got
upset and soon thereafter left locking the quarter.
8. There was a telephone call from Dehradun to P.W. 3
Sunder Lal, father of the deceased, at 9.00 a.m. on
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25.7.79 demanding ransom and the voice of the caller
resembled that of the accused.
9. Immediately after his arrest, in the afternoon of
26.7.79 the accused revealed the entire story without
any coercion, compulsion or threat and stated that he
could point out and recover the dead body of the
deceased from inside his quarter. The statement was
followed with actual recovery of the dead body at his
instance from inside the inner room of his quarter
dumped in his own tin box (Ex. 1) over his quilt and
plastic cover.
10. Earlier assertion of the accused was that his quarter
and the inner room were locked with different locks
but now it is contended that they were lying open.
This false assertion was necessary to prop up the story
of plantation of the dead body inside the quarter by
strangers.
11. Chappals of the deceased which he was wearing at the
time when he disappeared too were discovered and
recovered at the instance of the accused from a drain
very close to his quarter in the morning of 27.7.79.
12. Last but not the least defence is full of omissions and
lies.
Shri Sushil Kumar and Shri J.C. Gupta, learned senior
counsel appearing on behalf of the appellant, assailed the
judgment of the High Court inter alia contending:-
(i) That the case is based on circumstantial evidence
and the circumstances highlighted by the
prosecution do not present a complete chain to
show that in all human probability the act must
have been done by the appellant and the judgments
of the trial court as well as that of the High Court
are based on hypothesis and conjectures. The
prosecution has failed to establish that the
circumstances from which the inference of guilt is to
be drawn by the prosecution, is not cogently and
firmly established;
(ii) that no motive of any kind whatsoever has been
established by the prosecution from the evidence on
record against the appellant;
(iii) that there is no evidence at all of last seen of the
deceased with the accused on the day and at the
relevant time of occurrence;
(iv) that there is no evidence led by the prosecution to
prove that any body saw the child entering into the
appellant’s house which is surrounded by a number
of houses and shops;
(v) that the statement of Surendra Singh (P.W. 1) that
the appellant was seen by him in the evening of
24.7.79 in front of his house is just an improvement
and an after thought;
(vi) that no witness has deposed of the presence of the
appellant in his quarter on the fateful night;
(vii) that for the first time during trial, it was introduced
by the prosecution through the mouth of Brij
Mohan Gupta (P.W. 6) that the wife of the appellant
had left the quarter of the accused about 15-20
days before 24.7.79 and thereafter the appellant
was living alone in the quarter. The trial court as
well as the High Court have failed to appreciate and
re-appreciate the evidence of the defence witnesses
who have established on record that on the day of
the occurrence the appellant and his wife D.W. 1
both were at Dehradun; and
(viii) that the recovery of dead body of the deceased
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allegedly at the instance of the appellant cannot be
a conclusive proof of murder by the appellant. It
was urged that the crime had been committed by
some other person who concealed the body of the
child in the house of the appellant to frame him in a
false case. If the evidence of the prosecution is
accepted, the appellant could only be held guilty for
committing the offence under Section 201 IPC and
not for offence under Section 302 IPC., was the last
contention of the learned counsel.
The learned counsel for the State, on the other hand,
submitted that the reasons given by the trial court as well as
by the High Court for recording the order of conviction of the
accused are based upon proper appreciation of evidence led by
the prosecution in the case. According to him, the chain of
circumstances is consistent only with the hypothesis of the
guilt of the accused.
Before adverting to the arguments advanced by the
learned counsel, we shall at the threshold point out that in the
present case there is no direct evidence to connect the accused
in question with the evidence and the prosecution rests his
case solely on circumstantial evidence. This Court in a series
of decisions has consistently held that when a case rests upon
circumstantial evidence such evidence must satisfy the
following tests:-
(i) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(ii) those circumstances should be of definite tendency
unerringly pointing towards guilt of the accused;
(iii) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the
crime was committed by the accused and none else;
and
(iv) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence. [See
Gambhir v. State of Maharashtra (1982) 2 SCC
351 : (AIR 1982 SC 1157)]
See also Rama Nand v. State of Himachal
Pradesh (1981) 1 SCC 511 : (AIR 1981 SC 738),
Prem Thakur v. State of Punjab, (1982) 3 SCC
462 : (AIR 1983 SC 61), Earabhadrappa v. State
of Karnataka, (1983) 2 SCC 330 : (AIR 1983 SC
446), Gian Singh v. State of Punjab, 1986 Suppl.
SCC 676 : (AIR 1987 SC 1921), Balvinder Singh v.
State of Punjab (1987) 1 SCC 1 : (AIR 1987 SC
350).
As far back as in 1952 in Hanumant Govind
Nargundkar v. State of M.P. [AIR 1952 SC 3443], it was
observed thus:
"It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is
to be drawn should in the first instance be fully
established, and all the facts so established should
be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of
a conclusive nature and tendency and they should
be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must
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be a chain of evidence so far complete as not to
leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it
must be such as to show that within all human
probability the act must have been done by the
accused."
A reference may be made to a later decision in Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC
116 : (AIR 1984 SC 1622. Therein, while dealing with
circumstantial evidence, it has been held that the onus was on
the prosecution to prove that the chain is complete and the
infirmity of lacuna in prosecution cannot be cured by false
defence or plea. The conditions precedent in the words of this
Court, before conviction could be based on circumstantial
evidence, must be fully established. They are (SCC pp. 185,
para 153) :
(i) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned must or should and not
may be established;
(ii) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any
other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature
and tendency;
(iv) they should exclude every possible hypothesis
except the one to be proved; and
(v) there must be a chain of evidence so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
We may also make a reference to a decision of this Court
in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193,
wherein it has been observed thus: (SCC pp.206-207, para 21)
"21. In a case based on circumstantial evidence,
the settled law is that the circumstances from
which the conclusion of guilt is drawn should be
fully proved and such circumstances must be
conclusive in nature. Moreover, all the
circumstances should be complete and there
should be no gap left in the chain of evidence.
Further, the proved circumstances must be
consistent only with the hypothesis of the guilt of
the accused and totally inconsistent with his
innocence."
Bearing the above principles of law enunciated by this
Court, we shall scrutinize scrupulously and examine carefully
the circumstances appearing in this case against the
appellant.
There are certain salient and material features in the
present case which are admitted; they being that the appellant
and P.W. 3- father of the deceased child were the neighbourers
in the colony of Gol Market, Dak Patthar. The appellant was
on visiting terms with P.W. 3 and the deceased used to call
him as uncle. It is the evidence of P.W. 3 that the appellant
was a regular customer of his shop and even on 24.07.1979,
the appellant came to the shop and purchased some essential
commodities from him. He stated that on 24.07.1979 at about
6.30 p.m. Sandeep had gone to the house of P.W. 1 (tutor) for
taking tuition and after finishing his work, Sandeep came
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back to home. On reaching home, Sandeep left his bag of
books at his house and immediately went out of the house
saying that he would come back soon, but his son did not
return till 9.00 p.m. He went out in search of his missing son
towards Dhalipur Dhakrani side, but he could not get any clue
of Sandeep. He asked his younger brother P.W. 4 to lodge the
missing report of Sandeep. On the following day at about 8.00
a.m., he came back from Dhalipur Dhakrani. On 25.07.1979,
he received a telephone call at his house from Dehradun and
the person who made the said call asked P.W. 3 that if he
wanted safe and sound return of his son, he had to pay a
ransom of Rs. 20,000/-. He showed his inability to pay such a
huge amount. The caller of the telephone then made a
demand of Rs. 15,000/- and on showing his inability to pay
the said amount the caller reduced the demand to Rs.
12,000/-. Thereafter, the caller of the phone instructed him to
pack the money in a bag and place the bag at 9.00 p.m. on the
last step of the staircase of the north-eastern side of the
Bridge of Bindal River at Dehradun. The caller of the
telephone threatened him not to report the matter to the police
or anybody else, lest his son would be finished. It is his say
that the caller of the telephone also extended threat that if he
failed to reach at the settled place with ransom money, the
child would be finished and even the dead body would not be
made available to him. He categorically stated that the voice
of the telephone caller was somewhat similar to the voice of
the accused. He consulted his younger brother-Gopal Krishna
in regard to the further course of action. Gopal Krishna told
him that the accused was not found present in his quarter
since 5.30 in the morning of 25.07.1979. The entire matter
was narrated and discussed with the Investigating Officer who
advised him to arrange Rs. 12,000/- and place the bag of the
money at the suggested place. He was assured by the
Investigating Officer that police would ensure for his personal
safety. As per plan he went to Dehradun at 8.45 in the night
and concealed himself near some shop located there. He
remained hiding there for about 2= hours but nobody turned
up to lift the packet of money. The Investigating Officer came
to him and told that as nobody had come and sufficient time
had passed he should go to the place and collect the packet of
money. He then lifted the packet of money and returned home
with police party. A suggestion of the defence that since the
accused had married a Sikh girl, therefore, the members of the
Sikh and Punjabi communities, living at Dak Patthar became
annoyed with him, is denied by the witness.
P.W. 4 is the brother of P.W. 3. His evidence shows that
he along with P.W. 3 and two more brothers namely, Gopal
Krishna and Pradeep and their father are jointly residing in
one house at Gol Market, Dak Patthar. He corroborated the
testimony of P.W. 3 in its entirety. He got recorded the
missing report of Sandeep in the police station. It is his
evidence that on 26.07.1979 in the evening at about 3.45 or
4.00 p.m., he accompanied by Shadiram, Chetandas, Subhash
Bhatia and some more persons of the town had again gone in
search of Sandeep and when they reached at a place known
Khadar they saw the accused coming from the school side and
going towards Gol Market, Dak Pathhar. On seeing them, the
accused stopped for a while and then tried to run backward.
The police personnel who were accompanying them
apprehended the accused and later on he was interrogated.
The accused initially kept silent, but after some time he
narrated the entire incident to the police and disclosed that he
could get the dead body of Sandeep recovered from the inner
room of his quarter. The accused led the police party to his
quarter and having reached there, the accused said that he
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had lost the keys of the locks of the doors. Then the lock of
the outer door of the quarter was broken by the police. On
opening of the quarter, the accused went through one room on
the back side of the courtyard. The police broke open the lock
of the door of inner room. He along with the accused and
police personnel went inside the room where a tin box was
placed. The accused opened the box in which dead body of
Sandeep was found concealed. The police closed the box and
removed it out of the room. The Investigating Officer prepared
the majhar of the dead body [Ex. Ka-20] which was duly
signed by him and other witnesses. It is his evidence that on
the dead body of Sandeep one cloth piece of salwar was
wrapped and the neck and knee of Sandeep were found jointly
tied with a chunni (a piece of scarf). He stated that quilt Ex. 4
and plastic table cover Ex. 5 which were underneath the dead
body, and a piece of salwar Ex. P-2 and chunni Ex. P-3 were
taken into possession by the Investigating Officer on the spot.
Box, Ex. 1, in which the dead body was concealed and two
broken locks Ex. 6 and Ex. 7 were also taken into possession
in his presence. Bushirt, undershirt and half pant which were
found on the dead-body of Sandeep marked Ex. 8, Ex. 9 and
Ex. 10 were identified by him in the Court. On 27.7.1979 at
about 8.30 a.m. at the instance of the accused, the police in
his presence and other witnesses recovered a pair of chappal
(slippers) Ex.11 and Ex. 12 of the deceased from a water drain
located on the back side of the quarter of the accused. He
admitted in the cross-examination of the defence that the
police inflicted one or two danda blows on the person of the
accused when he was trying to run away on seeing the police
party at Khadar. A suggestion of the defence that on
26.07.1979 at about 3.30 p.m., the police arrested the
accused from the house of his brother-in-law at Dehradun is
denied by the witness.
P.W.1-Surendra Singh Patia lived in Quarter No. 7-A, Gol
Market, Dak Patthar, which is about 10-15 yards away from
the quarter of the accused. He was the Tutor of the deceased.
It is his evidence that in the evening of 24.07.1979 he was
teaching Sandeep in the verandah of his quarter, when he
saw the accused passing through his quarter and going
towards his own quarter. It has come in his cross-
examination that after return from the Club on the day of
incident, he came to know about the missing of Sandeep. He
joined the searching party but they could not trace Sandeep.
P.W. 2 - Rajendra Kumar Sharma is residing in Quarter
No.4, Gol Market, Dak Patthar. He is the neighbour of both
P.W.3 and the accused. He deposed that on the fateful night
he took part in search of missing Sandeep. It is his evidence
that on the morning of 25.07.1979 at about 5.00 a.m. he along
with Gopal Krishna again made inquiries from every family
members residing in the quarters at Gol Market about the
whereabouts of Sandeep. They had also gone to the house of
the accused and enquired from him whether he had seen
Sandeep who was missing since evening of 24.7.1979. He
stated that on their asking the accused got perplexed and
went inside his quarter saying that he did not know anything
about the boy. They came back from the quarter of the
accused and after about 10-15 minutes he saw the accused
locking the outer door of his quarter and going out from there.
The presence of the appellant at Gol Market on 24.7.1979 has
been established on record in the deposition of P.W. 2, an
independent witness. This witness has also proved the
presence of the appellant in his quarter at about 5.00 a.m. in
the morning of 27.7.1979.
P.W.6-Brij Mohan Gupta is also a resident of Gol Market
area. He deposed that the wife of the appellant was not
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staying in the house of the appellant for the past fortnight
from the day of the incident. He was also a member of the
search party with the police officials in the evening of
26.07.1979 when the appellant was apprehended. He
witnessed the recovery of a pair of Chappals, Ex.11 and Ex.12,
of the deceased at the instance of the appellant in the evening
of 27.07.1979 from a water drain at the backside of the house
of the appellant. He is an independent witness and his
testimony has remained unshattered and unshaken in the
cross-examination. His testimony corroborates the version of
the other witnesses that in the afternoon of 26.07.1979 the
appellant was arrested at Dak Patthar by the police. The
defence of the appellant that the police apprehended him at
Dehradun is falsified by the witness. There is not an iota of
evidence on record to infer that this witness is in any way
interested for any reason whatsoever to implicate the appellant
in a false case.
P.W.9-Jagdish Prasad is also a resident of Gol Market
whose house is close to the house of P.W.3. He was also a
member of the search party when the appellant was
apprehended in the afternoon of 26.07.1979 near Gol Market.
He testified that immediately after the arrest of the appellant,
the police interrogated him whereupon the appellant revealed
the entire story disclosing that the dead body of Sandeep was
laid in his quarter. He witnessed the breaking of the locks of
the rooms of the quarter of the appellant and recovery of the
dead body of the deceased concealed inside a small tin box.
He is the attested witness of the recovery Memos Ex.Ka.6, Ex.
Ka.3 and Ex. Ka.20. Nothing is brought on record by the
appellant to infer that this witness is an interested witness to
the prosecution or he has deposed falsely against the
appellant.
P.W.7- Satyavrat, at the relevant time, was posted as
Clerk in the Telegraphic Office, Dehradun. On 25.07.1979, he
was on trunk calls booking duty. He produced on record
receipt No.52 in Book No.4758 dated 25.07.1979 issued and
signed by him. The receipt would prove that on 25.07.79 at
about 8.50 a.m. the telephone caller had booked an ordinary
telephone call from Dehradun to some person at Telephone
No. 55 and the said call matured at about 9.00 a.m. It has
come in the evidence of P.W.4, uncle of the deceased, that
number of their joint telephone installed at Gol Market, Dak
Patthar is 55. The evidence of P.W.7 would establish an
additional link in the circumstances that in all probability it
was the appellant who booked a trunk call from Dehradun to
telephone number of P.W. 3, father of the deceased, for
making demand of ransom money for the release of his son
Sandeep.
P.W.8-Jeet Singh, Sub-Inspector, conducted the
investigation. He has testified the arrest of the appellant on
26.07.1979, and recovery of the dead body of the deceased
concealed inside a small tin recovered from the inner room of
the appellant after breaking open the locks of the doors as also
the recovery of a pair of Chappals of the deceased from a water
drain located at the backside of the house of the appellant. He
denied the suggestion of the appellant that the appellant was
in fact arrested on 26.07.1979 at 3.30 p.m. in the house of his
brother-in-law at Dehradun.
P.W.5-Dr. P.D. Jakhmola was posted as Medical Officer,
Dehradun in the year 1979. He examined the dead body of
Sandeep at about 12.40 p.m. on 27.07.1979. He noticed
blisters on the body. Eye balls were bulging out and the
tongue was protruding. Froth mixed with blood was coming
out from both the nostrils. He found ligature mark all around
the neck of the deceased, which was somewhat depressed and
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horizontal. The width of the ligature mark was 4 cms. and its
colour was brownish. According to the Doctor, there was
excavation of blood under the ligature mark as well as in the
muscles of the neck, which could be caused by tying a piece of
cloth like Ex.P-3. In the opinion of the Doctor, the cause of
death was due to strangulation and the death was possible in
the night of 24.07.1979 at about 8.00 p.m. The defence has
chosen not to put any question to the Doctor in the cross-
examination.
The evidence of P.W.1, P.W.2, P.W.3, P.W.6, P.W.8 and
P.W.9 is natural, convincing and trustworthy. There is no
material on record from which an inference can be drawn that
these witnesses have implicated the appellant in a false case.
On independent analysis and scrutiny of the evidence of these
witnesses, they fully establish the case of the prosecution
against the appellant. There is no reason to disbelieve them.
When the news of disappearance of the deceased was spread
over in the town, all the neighbourers and the relatives of P.W.
3 took part in the search of the deceased except the appellant
though he was on visiting terms and having good relations
with the father and other members of the family of the
deceased.
D.W.1 - Smt. Asha Saxena, wife of the appellant, in her
deposition stated that she accompanied her husband to
Uttarkashi on 10.7.1979 where her father was posted. On
23.7.1979, they both went to Dehradun and on 24.7.1979
from Dehradun they had gone to Dak Pathhar to get their
house cleaned. It is her evidence that in the evening of
24.7.1979, she and her husband went back to Dehradun.
D.W.2, Vijay Singh, is the friend of the appellant. He
deposed that on 23.07.1979 when he was going to Mussorie,
he had seen the appellant present at the Mussorie Bus Stand.
He invited the appellant for dinner on 24.07.1979 and the
appellant and his wife D.W.1 both joined him for dinner.
D.W.3-Mahendra Pratap Saxena is the brother-in-law of
the appellant and has repeated the same version as stated by
D.W.1 and D.W.2.
The evidence of the defence witnesses has been rightly
discarded and disbelieved by the courts below as the defence
witnesses are highly interested witnesses. Suffice it to say
that in case there was any iota in the truth of their testimony,
they would not have kept silent for more than a year from the
day when the appellant was arrested at Dehradun as per their
version till their statements were recorded by the trial court.
The presence of P.W.4 - Rajesh Kumar, P.W. 6 \026 Brij
Mohan Gupta and P.W. 9 \026 Jagdish Prasad along with the
police party in the evening of 26.07.1979 at the house of the
appellant has not been doubted by him in his statement
recorded under Section 313 Cr.P.C. The appellant has also
admitted the recovery of the dead body of Sandeep concealed
in a tin box in the inner room of his quarter. It is proved on
record by the prosecution that the appellant was on leave from
10.07.1979 to 30.07.1979. The appellant also admitted that
he accompanied by his wife had gone to Uttarkashi on
10.07.1979 where his father-in-law was working. His plea was
that on the morning of 24.07.1979 he and his wife both had
gone to Gol Market, Dak Pathhar from Dehradun to get their
quarter cleaned and after doing the cleaning work, they took
breakfast at about 2.00 p.m. and then purchased some
biscuits from the shop of P.W.3. In the evening at about 5.00
p.m. on the same day, he and his wife again returned to
Dehradun. This plea of the appellant cannot be accepted as it
is not plausible, satisfactory and believable. The trial court as
well as the High Court have rightly disbelieved the defence
story of the appellant in the light of the cogent and more
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satisfactory evidence led by the prosecution in this case.
The pair of Chappals of the deceased which he was
wearing on the fateful evening was recovered by the
Investigating Officer in the presence of P.W.4, P.W.6 and other
persons at the instance of the appellant from the water drain
located at the backside of the quarter of the appellant which
were found smeared with mud. The unrealistic and false plea
put forth by the appellant stating that it was possible for some
unknown person to have committed the murder of Sandeep
and then having concealed the dead body in the inner room of
his quarter is, itself, an additional circumstance leading
support to the other impelling circumstances unfailing
pointing out the guilt of the accused. It is clear from the
statement of the appellant recorded under Section 313 Cr.P.C.
and his defence witnesses that the appellant and his wife,
both had gone to Uttarkashi to meet his father-in-law who was
working there. The relationship of the appellant and his
father-in-law and other family members was cordial and in
such circumstances, the plea of the appellant that the
residents of Punjabi community of Dak Pathhar were not
happy with the marriage of the appellant being a non-Sikh
person with Smt. Asha Saxena D.W.1 has been disbelieved by
the courts below and in our view, rightly so as there is no iota
of evidence led by the appellant to substantiate any such
allegation.
Having given our careful consideration to the
submissions made by the learned counsel for the parties and
in the light of the convincing and trustworthy evidence of the
witnesses, who are quite natural and in the background of the
principles highlighted above, we are of the view that there are
number of impelling circumstances attending this case leading
to an irresistible and inescapable conclusion that it was the
appellant and the appellant alone who caused the death of
Sandeep, an innocent child, by strangulating him and then
concealing his body inside a tin box in the inner room of the
quarter exclusively occupied by the appellant. The evaluation
of the findings recorded by the trial court which are accepted
by the High Court does not suffer from any illegality, manifest
error or perversity nor it has overlooked or wrongly discarded
any vital piece of evidence. Hence, we hold that the findings of
facts recorded by the courts below do not call for any
interference.
In the result, there is no merit in this appeal and it is
dismissed accordingly.