Subhash vs State Of U.P.
2013 Latest Caselaw 3 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. 2
 

 
Criminal Appeal No. 1569 of 2011
 

 
Subhash				.......	Appellant
 
Vs.
 
State of U.P.				........	Respondent
 

 

 
Connected with:
 

 

 
Criminal Appeal No. 1873 of 2011
 

 
Mohan Lodh 				........     Appellant
 
Vs.
 
State of U.P.				........   Respondent
 

 

 

 
Hon'ble Imtiyaz Murtaza, J. 

Hon'ble Ashok Pal Singh, J.

( Delivered by Hon'ble Imtiyaz Murtaza, J. )

Both the aforementioned criminal appeals are directed against the judgement and order dated 9.8.2011 passed by Special Judge, SC/ST Act, Unnao, whereby appellants have been convicted under Section 364-A IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- and in default of payment of fine, further imprisonment for two years. The appellants have further been convicted under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- and in default of payment of fine, to undergo further imprisonment for one year. They have also been convicted under Section 201 IPC and sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 2000/- and in default of payment of fine, further imprisonment for four months. Besides, under Section 3(2)(5) SC/ST Act, the appellants have been sentenced to undergo rigorous imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine, further imprisonment for one year. All the sentences were directed to run concurrently.

Brushing aside unnecessary details, the facts of the case, as per the prosecution, are that the report of the incident was lodged on 20.8.07 by Baleshwari wife of Ram Prasad resident of village Aseharu P.S. Purwa, District Unnao alleging that her grandson Ritesh Kumar aged about 12 years was studying in class 4 in Ana Public School, Mirri Chauraha, Purwa. On 20.8.07 i.e. the same day, he had gone to attend the school and he did not return after the school was over. In the evening at about 5 p.m. Deepu son of Ram Vishnu who is her neighbour received a call on his phone no. 05152828974 that son of his neighbour Ashok, namely, Ritesh is with the caller and required that money be sent to him for getting the boy back. When the caller was asked about the amount which he wanted, no reply was given. After half an hour, another call was made on telephone of Deepu from mobile number 9956622290, expressing desire to talk with mother of Ritesh but Deepu had given the phone to Pradhan to whom the caller asked to give the phone to grandmother of the child. Pradhan told the caller that he is one from her family but the caller did not respond and disconnected the call. On the basis of such a call, the report was lodged that the grandson of the informant was abducted.

Based on the said information, FIR was registered at case crime no. 891 of 2007 under Section 364A IPC. After registration of the case, PW-9 Ram Avtar Incharge Inspector, P.S. Purwa commenced investigation. He prepared site plan which is Ex. Ka-12. He recorded statement of the witnesses. He arrested the accused Subhash Khatik on the next day i.e. 21.8.07. Thereafter on the pointing out of the accused, dead body of Ritesh was recovered from the forest of babool. The dead body was in naked condition and his neck was cut. Since the place of recovery of dead body was within the jurisdiction of police station Asoha, the investigating officer informed Ashoha police station for preparing the inquest report. The inquest was prepared by S.I. Chhote Lal Sankhwar in his presence. The inquest memo is Ex. Ka-3. The dead body was thereafter sent for autopsy. Since the deceased belonged to a scheduled caste, the accused was also charged under Section 3(2)(5). The police had also arrested the appellant Mohan Lodh and from his possession a knife was recovered.

After conclusion of investigation, charge sheet was submitted against the accused persons. The case was thereafter committed to the court of sessions and the Sessions Judge framed charges under Section 364A IPC, 302/34 IPC, 201 IPC and 3(2)(5) SC/ST Act.

The case of the defence was of denial and false implication and they claimed to be tried.

The Sessions Judge after considering the evidence on record convicted the appellant, as aforesaid.

We have heard Sri Nagendra Mohan, Advocate, Sri R.N.S. Chauhan, Advocate and Sri Ajmal Khan, Advocate for the appellants and Sri Jyotinjay Verma, AGA for the State.

The prosecution, in order to establish the guilt of the appellants, examined in all eleven witnesses. The defence examined two witnesses, namely, DW-1 Bindra Prasad and DW-2 Sarju Lal.

Counsel for the appellants challenged the findings recorded by the trial court on the ground that there is no direct evidence in this case. The chain of circumstantial evidence is not complete. It is also alleged that the recoveries are concocted and are not sufficient for recording the findings of conviction.

It is further submitted that the Sessions Judge has convicted the appellants only on the basis of recoveries made under Section 27 of the Evidence Act.

In order to appreciate the submission of the parties' counsel, it is necessary to examine the evidence on record.

PW-1 Baleshwari is the first informant of the case. She deposed that her grandson was aged about 12 years and his name was Ritesh. He was studying in Class 4 in Ana Public School. The school closes at 12 O' clock noon. When he did not return after the school was over, she thought that he might have gone to his aunt's house, who lives near Mirri Chauraha. At 5 p.m., a call was received by Deepu on his mobile saying that son of his neighbour Ashok is with the caller and he asked them to give money and get the child back. When Deepu enquired as to who was calling and his whereabout and that how much money he wants, the call was disconnected. Deepu told her about the said conversation. She and Deepu reached at Mirri crossing, where Pradhan Jai Shankar Pandey and several other persons were present. After about half an hour another call was received by Deepu on his mobile. This time when Deepu enquired as to who was calling, the caller asked him to hand over the phone to mother of Ritesh. Deepu handed over the phone to Pradhan. When Pradhan made query about his identity, the caller asked him to make him talk to grandmother of Ritesh. When Pradhan told him that he is from her home, the caller again disconnected the phone. She got the report scribed by Jai Shankar Pandey. In the report, she had mentioned the mobile number on which Deepu had received the call and she had affixed her thumb impression thereon. Thereafter the report was lodged at police station. The report is Ex. Ka-1.

PW-2 Mahesh Kumar who is uncle of the deceased boy, deposed that on 20.8.07, he had received information about his nephew Ritesh being missing. After receiving the said information, he came to home from Bombay. The police of P.S. Purwa had arrested Subhash Khatik from his village and he had also gone to police station after receiving information about the arrest. The police took him and Rajnish for recovery of dead body and bag as disclosed by Subhash. They reached Padwakhera, where on pointing out of Subhash, a bag was recovered from bush on roadside at about 4:15 p.m. The bag which was recovered was of black colour, which contained copies, books and clothes, namely, full school uniform. A recovery memo was prepared in this regard and Subhash had also signed the same, which is Ex. Ka-2. A copy of the recovery memo was also given to the accused Subhash. On the same day, police had brought Subhash to the forest of Lalakhera and after covering a distance of 50 steps in bushes, the dead body of Ritesh was recovered and recovery memo as well as inquest report was prepared.

He was extensively cross-examined about his relationship with other family members. He deposed that he had received phone call in the evening at about 5 p.m. regarding missing of Ritesh. On the same day at about 9 p.m., he had informed about the incident to his brother who was in Kuwait. The next day, he reached there by air. He denied the suggestion that on 21.8.07 he did not reach Lucknow between 8:30 p.m. and 9 p.m. He further denied the suggestion that he reached Lucknow on 22.8.07. He further deposed that he reached at about 11:30 or 12 noon. His mother and sister in law were in house and were crying. He stated that he had gone to P.S. Purwa alongwith Rajnish and that Rajnish is husband of Pradhan. The forest is at a distance of 15-16 kms. from Purwa. Rajnish remained alongwith him till recovery of dead body and other proofs. The dead body was sealed in his presence. He had signed the recovery memo. Writing work about recovery of dead body was done by police of P.S. Purwa. He had seen his nephew lying in bush. At that time, Rajnish, Mukesh, Vishnu, people from nearby villages and police were present. He proved his signatures on Ex. Ka-3 i.e. the inquest memo.

PW-3 Rajnish Kumar deposed that Ritesh was abducted on 20.8.07. The police of P.S. Purwa had arrested Subhash. He had confessed his crime. Thereafter, police took the accused Subhash, Mahesh Kumar, Uncle of the deceased and him to Padwakhera. He got recovered a school bag from bushes of babool trees in the grove of Radhey Lal. Several articles were recovered from the bag and a recovery memo was prepared and he had signed the recovery memo, Ex. Ka-1. After they came alongwith accused Subhash to forest of Sohramau Asoha and Subhash, after covering a distance of about 50 steps, got the dead body of Ritesh recovered, the recovery whereof is Ex. Ka-3. He identified his signatures thereon.

Dr. G.P. Ojha, PW-4 had conducted autopsy on the dead body of the deceased. He noted following ante mortem injuries on the person of the deceased:

(1)One incised wound 10 cm. x 3 cm. x tracheal deep on front and middle of neck;

(2)One lacerated wound 3 cm. x 2 cm. x bone deep on the chin;

(3)One incised wound 4 cm. x 3 cm. x bone deep on left side of lower jaw; and

(4)One incised wound 5 cm. x 3 cm. x muscle deep on the right temple.

The doctor opined that cause of death was shock and hemorrhage as a result of ante mortem injuries.

PW-5 Constable Krishna Pal Singh on the date of incident in question, was posted as Head Moharrir. He prepared chik FIR and registered the case under Section 364A IPC on the basis of the report furnished by the informant and prepared G.D. entry which are Ex. Ka-5 and Ka-6.

PW-6 Chhote Lal Shankhwar, S.I. deposed that on 21.8.07, he was posted as such at P.S. Asoha. He had gone to village Lalakhera after receiving information from SHO Purwa that the dead body of Ritesh was recovered. On the direction of SHO Purwa he prepared the inquest. Besides him, Ganesh, Ram Vishun, Vishnu driver and Surendra Vikram Singh and Neeraj were present at the time of preparation of inquest memo. He proved the inquest memo as Ex. Ka-7. He also prepared the relevant papers for autopsy, which are Ex. Ka-8 to Ka-11.

PW-7 Neeraj is maternal uncle of the deceased. He deposed that inquest on the dead body of Ritesh was conducted in his presence and after preparation of inquest memo, he had made signatures thereon. He proved his signatures on inquest memo, Ex. Ka-7.

PW-8 Jalim Singh is one of the investigating officers. He investigated the case from 29.8.07 and recorded the statements of Ashok Kumar, father, Smt. Renu, mother and Mahesh Kumar, uncle of the deceased. He also recorded statements of the witnesses Rajnish Kumar and Sanjay Misra and that of Dr. G.P. Ojha, who had conducted the postmortem examination. Thereafter he was transferred and investigation was entrusted to C.O. Dhirendra Kumar Rai.

PW-9 Ram Avtar Sharma is the first investigating officer. He got recovered the bag and dead body on pointing out of the accused Subhash. He deposed that on 24.8.07, on pointing out of Mohan Lodh, a blood stained knife was recovered and its recovery memo Ex. Ka-13 was prepared. He further deposed that on 24.8.07, accused Mohan was arrested after police encounter. Thereafter he was brought to Padwakhera and from the grove of Radhey Lal, he got recovered the knife.

PW-10 C.O. Dhirendra Rai commenced the investigation on 19.2.07 and he prepared site plan of recovery of bag, knife and dead body, which are Ex. Ka-15 and Ka-16. After conclusion of investigation, he submitted charge sheet against accused persons, which is Ex. Ka-17.

PW-11 Arun Kumar, C.O. deposed that he investigated the case from 24.8.07 and recorded the statement of Mohan Lodh.

The defence has examined DW-1 Bindra Prasad. He deposed that in the night of 21.8.07 at about 9, police had reached the house of Subhash and took away with them. He also stated that Subhash belonged to a prosperous family.

DW-2 Sarju Lal is the father of the appellant Subhash. He deposed that Subhash carries on business of batteries. On 21.8.07 at about 9 p.m., police had reached at his house and arrested him and took away alongwith them.

There is no direct evidence in this case and it is a case of circumstantial evidence. The apex court in various decisions has held that the nature, character and essential proof required in a criminal case, which rests on circumstantial evidence alone, are (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established; and (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, i.e. to say should not be explainable on any other hypothesis except that the accused is guilty, the circumstances should be of a conclusive nature and tendency, that should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused.

The Sessions Judge in paragraph 49 of the judgement has convicted the appellants on the basis of recoveries of weapon of crime, dead body and bag of the deceased. All the articles have been recovered on the pointing out of the accused under Section 27 of the Evidence Act.

From the evidence on the record it transpires that Appellant Subhash was arrested on 21.08.07 by P.W.9 Ram Autar Sharma,investigating officer,and on his pointing out a school bag was recovered which contained school books and blood stained clothes.A recovery memo of school bag was prepared which is Ex.Ka2.The recovery of bag on the pointing out of accused Subhash has been proved by PW-2 Mahesh Kumar and PW-3 Rajneesh. Thereafter on the pointing out of accused Subhash dead body of Ritesh was recovered from the forest of babool and investigating officer has prepared a recovery memo of dead body which is Ex Ka 3. P.W.2 Mahesh Kumar and P.W.3 Rajneesh have supported the testimony of Investigating officer regarding recoveries. PW-9 Ram Avtar Sharma had arrested the appellant Mohan Lodh on 24.8.07 and on his pointing a knife was recovered. The investigating officer has prepared a recovery memo of knife, which is Ex Ka 13. According to serologist report, blood was found on the knife.

The main submission of the learned counsel for the appellants is that only on the basis of recoveries under Section 27 of the Evidence Act, the appellants can not be convicted under Section 302,364A,201 IPC.

In support of his submission, the counsel for the appellant has relied upon the decision rendered by the apex court in the case of, Chhotu Singh vs. State of Rajasthan 1999 SCC (Cri) 461, wherein it has been held as under:

"This brings us to the third circumstance. The statement made by the appellant before the Investigating Officer to the extent it is admissible under Section 27 of the Evidence Act only proves that he had buried the dead body in the pit knowing that the offence of murder was committed but does not, in absence of any other material, conclusively prove that he committed the murder."

With these observations, the apex court set aside the conviction of the appellant under Section 302 IPC and affirmed his conviction and sentence under Section 201 IPC.

Per contra, learned AGA placed reliance on the decision of the apex court in the case of Ningappa Yallappa Hosamani and Ors. vs. State of Karnataka and Ors., (2010) 1 SCC (Cri) 1460, wherein following observations have been made by the Court:

"10..................The evidence of P.W.20-investigating officer shows that the accused Nos.1 and 2 were arrested on 3.2.2005 at Mahalingapura and in furtherance of the interrogation, they furnished information and police and panchas were led by the accused Nos.1 and 2 to a place near the canal. This claim of P.W.20 has been corroborated by the evidence of P.W.14-Basappa Ramappa Pujari, who says that he had accompanied the police and panchas to the place where the accused Nos.1 and 2 were taken and the accused Nos.1 and 2 showed a place as a place of burial of Namdev's body. Then, his deposition further shows that he and C.Ws 22, 24 and 25 were asked to dig the land and when they dug the land, they found a gunny bag. That gunny bag contained a dead body which was later identified by PWs 1 and 5 as the body of Namadev. We have very carefully gone through the evidence of PWs 14 and 20 in this regard and find no material to disbelieve the version of PW-14 that the place was shown by A-1 and A-2 and that when the place was dug up, they found a gunny bag containing Namadev's dead body. This evidence conclusively shows that the accused Nos. 1 and 2 had buried the said gunny bag containing the dead body of Namadev and that it was detected in furtherance of the voluntary information furnished by them.

11. In State of Maharashtra vs. Suresh (2000 (1) SCC 471) it was observed as follows:

"Three possibilities are there when an accused points out the place where dead body or an incriminating material was concealed without setting that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well- justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

12. Above being the position, we find no merit in these appeals which are accordingly dismissed."

In the present case, so far the appellant Subhash is concerned, there are recoveries of the bag and the dead body under section 27 of the Evidence Act from an open place and not from his exclusive possession. The appellant Mohan Lodh has been convicted only on the basis of recovery of knife on his pointing out under Section 27 of the Evidence Act. The prosecution has proved that the bag of the deceased and the dead body have been recovered on the pointing out of Subhash and knife has been recovered on the pointing out of Mohan Lodh. The Sessions judge has rightly rejected the testimonies of the defence witnesses. The question for consideration is that whether only on the basis of recoveries made under section 27 of the Evidence Act accused can be convicted under section 302, 364A, 201 IPC.

The provisions of Section 27 of the Evidence Act clearly state that when any fact is deposed to as discovered in consequence of the information received from a person accused of any offence, in the custody of the police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

In the case of Sandeep v. State of U.P., reported in (2012) 6 SCC 107, the apex court has held as under:

''We find force in the submission of the learned Senior Counsel for the State. It is quite common that based on admissible portion of the statement of the accused whenever and wherever recoveries are made, the same are admissible in evidence and it is for the accused in those situations to explain to the satisfaction of the court as to the nature of recoveries and as to how they came into possession or for planting the same at the places from where they were recovered. Similarly, this part of the statement which does not in any way implicate the accused but is mere statement of facts would only amount to mere admissions which can be relied upon for ascertaining the other facts which are intrinsically connected with the occurrence, while at the same time, the same would not in any way result in implicating the accused in the offence directly.''(emphasis supplied)

We do not find any substance in the submission of the learned AGA that since the dead body and knife have been recovered on the pointing out of the accused, therefore, accused were in possession of those articles and in view of Section 114(a) of the Evidence Act there would be presumption against them for committing the murder. The apex court has considered in various decision the inference to be drawn where an incriminating article is recovered at the pointing out of an accused from an open place accessible to all.

In the case of Aslam Parwez V Govt of NCT of Delhi reported in (2003) 9 SCC 141, the apex court has held as under:

"12. The inference to be drawn where an incriminating article is recovered at the pointing out of an accused from an open place accessible to all was considered by us in Salim Akhtar v. State of U.P.(2003 SCC (Cri) 1149) and it was observed as under:

"12. In Sanjay Dutt v. State through CBI2 (1994SCC(Crl)1433)it has been held by a Constitution Bench that with a view to hold an accused guilty of an offence under Section 5 of TADA, the prosecution is required to prove satisfactorily that the accused was in conscious possession, unauthorisedly in a notified area of any arms or ammunition of a specified description. In Trimbak v. State of M.P. (1954CrlLJ 335)recovery of certain stolen articles was made at the pointing out of the accused and on that basis he was convicted under Section 411 IPC by the High Court. Reversing the judgment it was held by this Court that when the field from which the ornaments were recovered was an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. It was further held that the fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles. In Raosaheb Balu Killedar v. State of Maharashtra (1995CrlLJ2632(SC),the accused had made a disclosure statement and had led the police party to a place behind a mill, pointed out the place and himself removed the earth and from a pit about 6 inches deep recovered a revolver loaded with a live cartridge wrapped in a polythene bag. It was held by this Court that the statement made by the accused was capable of an interpretation that the appellant had the knowledge about the concealment of the revolver at the particular place from where it was got recovered and not that he had concealed the same and therefore it was not possible to say conclusively and beyond a reasonable doubt that the appellant had conscious possession of the revolver and the cartridge. This principle was reiterated in Khudeswar Dutta v. State of Assam (1998 SCC(Crl)1062, and it was held that mere knowledge of the accused that incriminating articles were kept at a certain place does not amount to conscious possession and conviction under Section 5 of TADA was set aside."

(emphasis supplied)

In view of the above, it cannot be said that the bag and dead body which were recovered from an open place on the pointing out of accused Subhash were in his conscious possession and similarly, the knife which was recovered on the pointing out of Mohan Lodh from a place which was accessible to all cannot be considered in his conscious possession. The provision of Section 114(a) of Evidence Act is not applicable in the facts and circumstances of the present case. As pointed out earlier, in the case of Sandeep v. State of U.P (supra), the part of statement under Section 27 of the Evidence Act, which does not, in any way, implicate the accused but is mere statement of facts, would only amount to admissions which can be relied upon for ascertaining the other facts which are intrinsically connected with the occurrence, while at the same time, the same would not, in any way, result in implicating the accused in the offence directly.

In the case of Ningappa Yallappa Hosamani (supra), the conviction of the accused A-1 and A-2 was not only on the basis of recoveries under Section 27 of the Evidence Act. The facts and circumstances were different. The evidence against A1 A2 was that P.W10 Vishnu Tulsagiri had seen the accused A1, 2 and 4 to 7 near Bommanabudni bus stand talking to each other and later P.W. 16 Laxamappa Mullauru having seen accused nos. 2 and 7 going on one motor cycle and accused nos. 1 and 6 going on another motor cycle toward Belgaum road and accused No. 7 was with a gunny bag and when P.W16 had asked him about the same, the accused no. 7 had replied that it contained jaggery block intended to be given to his relative. On 30.1.2005 the accused nos 1,2, 6 and 7 had been seen by P.W 7 Hanamath Gouda Patil near the canal and two motor cycles parked on the road. Thereafter, on the information given by the accused canal was dug up resulting in the discovery of a gunny bag which contained a dead body.

A perusal of the facts of the above case relied upon by the learned AGA clearly shows that the conviction of accused 1 and 2 was not only on the basis of recovery of dead body from the open place but there were other incriminating circumstances connecting the accused with the crime. In the instant case there is no other evidence on the record except the recoveries under section 27 of the Evidence Act from the open place. The decision relied upon by the learned AGA is inapplicable in the instant case.

In the case of Wakkar and another v. State of U.P., (2011) 3 SCC 306, the apex court, in paragraph 26 of the report held as under:

"It is true that recovery of certain incriminating articles at the instance of the accused under Section 27 of the Evidence Act by itself cannot form the basis of conviction. The recovery of incriminating articles and its evidentiary value has to be considered in the light of other relevant circumstances as well and the chain of events suggesting the involvement of the accused." (emphasis supplied)

In view of the discussion made herein above we are of the opinion that only on the basis of recoveries of bag, dead body and knife made under section 27 of the Evidence Act from the open place the appellants can not be convicted under section 302 and 364A IPC since there is no other evidence to connect the appellants with abduction and murder of the deceased. There are allegations that demand of ransom was made but the prosecution has failed to give any evidence as to who had demanded the ransom or who had abducted the victim. They are thus, acquitted under section 302 and 364A IPC. The prosecution in this case has also failed to prove that offence has been committed on the ground that deceased is a member of scheduled caste or a scheduled tribe. Hence the conviction of the appellants under Section 3(2)(5) SC/ST Act is also set aside.

The appellants have also been convicted under section 201 IPC for concealing the dead body in the bushes in village Gram Soharwa. According to the evidence on record dead body was recovered on the pointing out of Subhash only. The dead body was not recovered on the pointing out of Mohan Lodh. Therefore he is acquitted under section 201 IPC.

The appellant Subhash was asked under section 313 Cr.P.C to explain the recovery of dead body on his pointing out to which he has simply denied and did not offer any explanation.

In the case of State of Maharashtra vs. Suresh (2000 (1) SCC 471), it was observed as follows:

"Three possibilities are there when an accused points out the place where dead body or an incriminating material was concealed without setting that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who car offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well- justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act." (emphasis supplied)

In the case of Chhotu Singh vs. State of Rajasthan (Supra) the apex court convicted accused under section 201 IPC only on the basis of recovery of dead body under section 27 of the Evidence Act. Therefore, conviction and sentence of appellant Subhash under section 201 IPC is maintained.

Resultantly, the appeal of Subhash is partly allowed. His conviction under section 302 IPC, 364 A IPC and 3(2)(5) SCST Act is set aside and conviction and sentence under section 201 IPC is maintained. He is in jail and he shall serve out the sentence awarded by the trial court under section 201 IPC and affirmed by us. In case he has already served out the sentence awarded under section 201 IPC, he shall be released forthwith unless wanted in any other case.

The appeal of Mohan Lodh is allowed. His conviction and sentence under Sections 302 IPC, 364A IPC, 201 IPC and 3(2)(5) SC/ST Act is set aside. He is in jail. He shall be released forthwith unless wanted in some other case.

Office is directed to communicate this judgement to the trial court for necessary compliance.

Dated: March 22, 2013

MFA