The State Of Maharashtra vs Surendraram Sankaratiram Jairaj ...
2004 Latest Caselaw 714 Bom

JUDGMENT

S.S. Parkar, J.

1. This appeal is preferred by the State impugning the judgment and order dated 12the January 1988 acquitting the respondent-accused of the offences under Sections 364, 302 and 201 of IPC in Sessions Case No. 672 of 1985.

2. The respondent-accused was charged for having kidnapped an eight year old school going boy by name Vinod Kumar for the purpose of committing his murder and for murdering him on 8th July 1985 and thereafter causing disappearance of the evidence. The deceased-Vinod Kumar was residing with his parents in Masrani Lane, Halav Pool, Kurla, Bombay. He was studying in 3rd standard at Kartika High School, BSES Society at the relevant time. His school timings were upto 12-30 p.m. As the boy did not return home that afternoon his parents made enquiries at the school as well as at other places. Following morning, father of Vinod Kumar, Devdhari Govindram, who was working as a labourer in Premier Automobile Company, lodged missing report at Kurla Police Station with PW 12 PSI Kadam which was registered as NC complaint. The information about the missing of his son was also given to CID. On 23rd July 1985 a telegram was received by C.I.D. Bombay from Ganganagar Police Station in the State of Rajasthan stating that a dead body of eight year old boy kept in a trunk was found in the railway compartment which had reached there from Bombay. The telegram further indicated that the dead body was wearing half white shirt, half blue pant and red tie with letters "KHS" embroidered on it. The intimation was given about the said message to PW 14 the complainant. PW 14, the father of Vinod Kumar and Police Naik Maruti Gawade PW 11 went to Ganganagar. At Ganganagar Railway Police Station on 27th July 1985 the Police Naik and father of the missing boy were shown a trunk and the clothes which were found on the dead body. The documents like inquest panchanama, photographs of the dead body and FIR and the crime registered under C.R. No. 37 of 1985 as well as the post mortem report in respect of the dead body were collected by the Police Naik from Ganganagar Railway Police Station and brought to Bombay on 31st July 1985. The father of Vinod Kumar had already come back to Bombay after identifying the clothes and the photograph of the dead body at Ganganagar Police Station. Apart from the clothes of the dead body, the truck in which the dead body was found and one 'lungi' which was tied around the dead body and the bed sheet in which the trunk was wrapped were also handed over to the Police Naik of Kurla Police Station who had been to Ganganagar.

3. Seeing the old trunk, the 'lungi' and the bed sheet PW 14, father of Vinod Kumar suspected the involvement of the accused and his father-in-law in the crime because of the threats previously held out to him by them. He, therefore, verified from the residence of the accused and the inmates of room No. 14 i.e. PW 7 and PW 9 who residing along with the accused and his father-in-law disclosed names of the accused and his father-in-law as suspects and lodged FIR Exh. 38 on 31/7/1985. Accused and his father-in-law Ramshakal were arrested on 31st July 1985. After his arrest the accused made statement and led the police and panchas to a drainage from where school bag and gum boots of deceased Vinod Kumar were discovered on 2nd August 1985. On 26th August 1985 the accused showed his willingness to make a confessional statement ad, therefore, he was produced in the Court of the Additional Chief Metropolitan Magistrate at Kurla, Bombay. After ascertaining that the accused was willing to give confessional statement, the Magistrate directed to produce the accused before him on 28th August 1985 which was the date of remand. When the accused was produced before him on 28th August 1985 again, the learned Additional Chief Metropolitan Magistrate, after making preliminary enquiries and recording his willingness to make a confessional statement directed the accused to be kept in judicial custody. Thereafter the accused made his confessional statement on 29th August 1985 before the learned Magistrate under Section 164 of Cr.P.C. in which he stated that he took Vinod to his residence where he strangulated him and kept the body rapped with a 'lungi' in a trunk. The trunk was wrapped in a bed sheet and taken to V.T. Railway station and kept in a train at platform No. 9. The train, according to him, was probably Punjab Mail.

4. After recording the statements of witnesses and completing the investigation charge-sheet came to be filed in the Court of the Metropolitan Magistrate at Kurla, Bombay and thereafter it was committed to the Sessions Court, Bombay. At the time of framing of the charges the learned Addl. Sessions Judge, Greater Bombay found no material to proceed against co-accused Ramshakalram Balkeshwarram, the father-in-law of the respondent-accused and, therefore, by the order dated 30/11/1987 he was discharged under Section 227 of Cr.P.C. Thereafter the charges were framed against respondent-accused on 30th November 1987 for offences under Sections 364, 302 and 201 of IPC to which the accused pleaded not guilty.

5. Before the Sessions Court the prosecution led evidence of 18 witnesses. PW 1 is Ramanand Babu, a retired draftsman from the Office of the Executive Engineer who drew sketch (Exh. 8) showing the place of offence at Old Hall Road in Room No. 14, Halav Pool, Kurla which was the residence of the accused and the surroundings of the said area. PW 2 is Abhayraj Prajapati, the hawker who had seen the accused boarding an auto rickshaw near the place of his residence while carrying a bundle wrapped in a bed sheet. PW 3 is Smt. Shyamola Nair, who was the teacher in-charge of the 3rd standard in Kartika High School, Kurla where the deceased was her student. PW 4 is Achyut Yadav, the rickshaw driver who had taken accused in his auto rickshaw along with his baggage to Kurla Railway Station on 8th July 1985. PW 5 is Amol Athanikar, the photographer who had taken the photographs of room No. 14 where the accused was residing. PW 6 is Sureshram who was neighbour of PW 14, father of the deceased and has deposed about the quarrel between PW 14 and father-in-law of the accused. PW 7 Bhagwanram and PW 9 Shriniwasram are the two inmates of room No. 14 where accused was residing. PW 8 is Prakash Sagvekar who was panch for the memorandum statement and the recovery at the instance of the accused. PW 10 is Lagmanidevi, mother of deceased Vinod Kumar. PW 11 is Police Naik Maruti Gawade who had gone to Ganganagar Railway Police Station pursuant to the telegram received about finding of the dead body of a boy. PW 12 Baliram Kadam was the PSI attached to Kurla Police Station who had recorded the FIR of PW 14. PW 13 is Sanjay Nemani who was panch for the memorandum statement made by the accused and for the recovery made at the instance of accused on 2nd August 1985. PW 14 Devdhari is the father of the deceased Vinod Kumar. PW 15 is Mansingh Patankar, the Addl. Chief Metropolitan Magistrate presiding in Court No. 11 at Kurla Bombay who had recorded the confession of the accused. PW 16 is PSI Uttam Jadhav attached to Missing Persons Bureau at Crime Branch, C.I.D. who had recorded the missing complaint of PW 14. PW 17 is the Investigating Officer P.I. more attached to Kurla Police Station. Lastly PW 18 is Sharad Patankar who was acting as Judicial Clerk in the Metropolitan Magistrate's 11th Court at Kurla, Bombay when the confession of the accused was recorded. Apart from the evidence of the aforesaid witnesses the prosecution has also placed on record the complaints, panchanamas and also documents collected from Ganganagar Railway Police Station in Rajasthan which included the photographs of the dead body, the seizure panchanama of the school uniform of the deceased, the FIR in respect of the crime registered for offences under Sections 302 and 201 of IPC, the post mortem notes and muddemal articles. The defense of the accused is of total denial.

6. After considering the entire evidence on record the trial Court acquitted the respondent-accused of all the offences with which he was charged by the impugned judgment and order dated 12th January 1988 which is under challenge in this appeal against the order of acquittal filed by the State.

7. We have gone through the entire evidence on record with the assistance of the counsel appearing in the matter and have also perused the reasons of the trial Court and heard both the sides at length.

8. The perusal of the judgment of the trial Court shows that the Special Public Prosecutor who appeared on behalf of the State surprisingly did not press the charges for offences under Sections 302 and 364 of IPC and made a concession that the prosecution could not rely on the confessional statement on the ground that the first part of confession containing preliminary enquiries made by the Magistrate before recording confession under Section 164 of Cr.P.C. was not "properly tendered" but had been found out subsequently. According to the trial judge the Public Prosecutor who appeared for the State only contended that there was sufficient evidence to establish the charge under Section 201 of IPC. Accordingly the trial Court did not even frame the points for consideration with regard to the offences of murder and kidnapping for murder against the respondent-accused. The trial Court has observed that an offence had been committed with regard to the death of Vinod Kumar which was punishable with death but has held that the prosecution did not prove that the accused had knowledge about the said crime and that he intended to protect the offender. The trial Court has also held not proved that the accused removed the dead body so as to destroy the evidence of crime and, therefore, gave finding that no offence is proved to have been committed by the accused.

9. As per the evidence on record the prosecution has led the evidence to prove the following circumstances against the respondent-accused.

Firstly, the deceased Vinod Kumar had received homicidal death. Secondly, the deceased was kidnapped so that he could be murdered. Thirdly, after committing murder of the victim the disappearance of the evidence or murder was caused with the intention of screening the offender from legal punishment. Lastly the prosecution has led the evidence to prove the confession of the accused recorded by the Addl. Chief Metropolitan Magistrate, Kurla, Bombay in which the accused had admitted his guilt. The prosecution has also led the evidence to prove the motive against the accused.

10. To begin with we will first deal with the confession of the accused. It is not in dispute that the confession of the accused was recorded by the Addl. Chief Metropolitan Magistrate under Section 164 of the Code of Criminal Procedure and that the confession, if properly recorded under the said provision, is relevant and admissible against the accused. As regards the confession the prosecution has led the evidence of PW No. 15 Mansingh Patankar who was it the relevant time Addl. Chief Metropolitan Magistrate and presiding over Court No. 11 at Kurla, Bombay. He has produced the confessional statement recorded by him at Exhibit No. 43 and preliminary enquiry made by him is produced at Exhibit 43-A by P.W. No. 18. As per the deposition of PW 15, he had received a memo of request from Inspector of Police, Kurla Police Station for recording the confessional statement of the accused on 26th August 1985. He directed the Inspector of Police to bring the accused on regular date of remand after two days which was on 28th August 1985. The accused was produced before him on 28th August 1985 when he ascertained from him whether he was willing to make a confessional statement. The preliminary enquiry made by the Magistrate on that day is produced at Exhibit No. 43-A. The accused was given by him in the custody of Police Head Constable and other police staff was directed to go out of the Court hall. He ensured that there was no policeman except the police constable to guard the accused in the Court room and the police constable who was guarding him had no concern with that offence. The accused was told that he was not in police custody and enquired from him about the Inspector who had produced him and whether there was any inducement given to him. He was asked whether he has any complaint of ill treatment against the police or other persons responsible for his arrest to which the reply was in the negative. The Magistrate then examined the body of the accused and he did not find any marks of fresh injuries except one scar on the middle portion of his back. He was told that there was no compulsion on him that he should make any statement which the accused understood. He was further made to understand that if he made any statement it would be taken down and might be used against him as evidence. He was also told that he would not be sent to the police custody thereafter. He was asked whether at any time the police had threatened him to make a statement to which his reply was in the negative. He was asked whether any promise was made to him by the police that if he made statement he would be acquitted to which reply was in the negative. When asked whether he had still desire to make statement, the reply was in the affirmative. When asked when did it first occur to him that he should make statement, the reply was that it came to his mind immediately after his arrest. When asked why he wanted to make confession, his reply was that he was convinced that he had committed a mistake. Then he was told that he was given 24 hours for reflection before recording his confession and that he would be kept in jail custody to which he agreed.

11. He was then produced before the Magistrate on 29th August 1985 at about 4 p.m. from the jail custody. That time also the Magistrate ensured that no policeman was in his court room except one police constable, other than the one who was guarding him on the earlier day in the court. That day on being asked the accused told the date of his arrest and the place where he was arrested i.e. Halaopur, Kurla, Bombay. He told the Magistrate that he was not kept under surveillance and that he was kept in Kurla police lock up. He replied in the affirmative when he was asked whether he wished to make any statement. He was then asked whether 24 hours period given to him for reflection was sufficient for him. His answer was that that period was sufficient. He was then told that he was not bound to make statement and there was no compulsion on him which he understood. He was further told that if he gave confession it would be recorded and used against him in the evidence. He was also told that even if he refused to make statement he would not be kept in police custody. When asked whether police or any other person threatened him and coerced him to make statement, his answer was in the negative. He was asked whether any promise was made to him that if he made statement he would be made a prosecution witness to which also his reply was in the negative. When asked whether he was given any allurement to make statement, his reply was in the negative. He stated that he was willing to make statement voluntarily of his own free will. When asked about any complaint or difficulty he had, the answer was in the negative. It was then impressed upon the accused that the Magistrate was not there to record his statement by compulsion but only if he was willing to make the statement voluntarily and of his own free will.

12. When asked what statement he wanted to make, he made the confessional statement to the following effect. In the month of May 1985 there was quarrel between him and Devdhari i.e. PW 14. PW 14 had assaulted him on his way to Bombay and he told P.W. 14 that he would take revenge for that. When he came to Bombay in July 1985 he wanted to take away Devdhari's son. On 8th July he took the boy to his room and pressed his neck. The boy died on the spot. He then emptied one trunk which was meant for storing old articles and kept the boy in the trunk after wrapping him in a lungi. The trunk was wrapped in a bed sheet. He took the trunk to Kurla railway station in a rickshaw and from there he went to V.T. station. At 3 p.m. he went to platform No. 9 at V.T. station and kept the trunk in the train which was probably Punjab Mail. Then he went back to Kurla. He thereafter threw away the school bag and shoes of the boy in a gutter adjoining his house. Some articles were thrown by him near Kurla car shed and that he was arrested on 29th July 1985.

13. At the end of the said narration the Metropolitan Magistrate certified that the said statement was recorded in his presence and the record contained full and true account of the statement made by the accused. There was another endorsement made by the Magistrate at the end of the confessional statement that he had explained to the accused that he was not bound to make the confession and that if he did, the confession would be used against him as evidence and that he believed that the confession was voluntarily made. It is further stated that it was taken in his presence and hearing and was read over to the person making it and was admitted by him to be correct and contained full and true account of the statement made by him. This confession is produced by the prosecution as Exhibit 43. the signatures of the accused were obtained on Exhibits 43 as well as 43-A. Exhibit 43-A is counter signed by the Addl. C.M.M. He has also signed the certificate and endorsement dated 29th August 1985. We have reproduced almost entire preliminary enquiry and the confessional statement of the accused as well as the endorsements made by the Magistrate to show that the confession was recorded by observing necessary precautions required by law to ensure voluntariness and genuineness of the confessional statement.

14. PW 17 P.I. More, the Investigating Officer has corroborated the evidence of the Metropolitan Magistrate in paragraph 12 of his deposition. According to the I.O. when the accused was interrogated on 26th August 1985 he showed his willingness to make a confession. He therefore prepared a letter of request addressed to the Metropolitan Magistrate presiding in Court No. 11 at Kurla. That letter dated 26th August 1985 along with the Magistrate's endorsement are produced at Exhibits 45 and 45-A. The letter is addressed to the Addl. Chief Metropolitan Magistrate by the Inspector of Police giving the C.R. number and the offence for which the crime was registered against the accused and stating that the accused had volunteered to make confession and, therefore, the same might be recorded. The said letter bears the endorsement of the Addl. Chief Metropolitan Magistrate dated 26/8/1985 stating therein that the accused was produced before him and on being interrogated he stated that he was willing to make his confessional statement. A copy of the remand application dated 28/8/85 is also produced on record at Exhibit 46 by which extension of remand was prayed for.

15. Thus the fact that the confession of the accused was recorded by the Magistrate on being produced before him by the Investigating Officer cannot be disputed. The said confession has not been accepted by the trial Court because the Special Public Prosecutor appearing in the matter himself conceded that the said confession could not be admitted in evidence as Exhibit 43-A which is the record of the preliminary enquiry made with the accused on 28th August 1985 by the Magistrate was not properly tendered but had been found out subsequently under the order of the Court. In our view in the first instance the Public Prosecutor had wrongly conceded that the prosecution could not rely on the confessional statement. Secondly it was not proper on the part of the trial Court to go simply by the concession made by the Special Public Prosecutor without himself considering why the record of what transpired in the Court on 28th August 1985 was produced subsequently before the Court.

16. It may be noted that the Addl. C.M.M. was at the relevant time presiding in Court No. 11 at Kurla, Bombay and thereafter he was transferred from that Court. According to his deposition the Inspector of Police attached to Kurla police station had produced the accused in his Court on 26th August 1985 for the purpose of recording his confession but the Magistrate asked the I.O. to bring the accused on the date of remand which was two days thereafter on 28th August 1985. This is corroborated by the evidence of the Investigating Officer as well as the endorsement made by the Magistrate on letter (Exhibit 45) dated 26th August 1985 addressed to him by the Inspector of Police. The endorsement below that letter is at Exhibit 45-A. That letter/memorandum dated 26th August 1985 was in Kurla Court and, therefore, he could not produce the original. He has deposed that on 28th August 1985 when the accused was produced before him along with the remand application he ascertained from him whether he was willing to make a confessional statement and thereafter the accused was sent to the jail custody. During the course of his deposition it transpired that what was sent to the concerned Court was Exhibit 43 which contained only confessional statement recorded on 29th August 1985. It was at that time noticed that the preliminary enquiries made by the Magistrate and recorded on 28th August 1985 remained to be enclosed along with the confessional statement dated 29/8/1985 in the sealed cover and, therefore, enquiry was made at Kurla Court and the same was produced before the trial Court on the subsequent date i.e. on 15/12/1987. The preliminary enquiries recorded at Exhibit 43-A were Kept in sealed cover but through oversight remained in the cupboard at Kurla Court and were not enclosed in the sealed packet which contained the confessional statement made on 29th August 1985.

17. The envelope containing the preliminary enquiries recorded on 28th August 1985 was later on produced and proved through the Judicial Clerk attached to the Addl. Chief Metropolitan Magistrate's 11th Court, Kurla, Bombay, who was examined as PW 18. He deposed that the envelope which contained Exhibit 43-A was sealed by Hamal attached to that Court and he had endorsed the contents of the envelope on one side of the envelope in red ink. The packet was sealed and kept in safe custody in the Court cupboard in the evening of 28th August 1985. The envelope containing Exhibit 43 was also sealed by the Hamal under his instructions on 29th August 1985 with the endorsement in blue ink. He further deposed that envelope containing Exhibit 43-A, though was sealed on 28th August 1985, was not handed over to the cashier on 28th August 1985 as it had to be kept along with the confession that would be made on subsequent date by the accused. However, when he deposited the envelope containing Exhibit 43 he was under the impression that the envelope of the earlier day must have been enclosed in the envelope of 29th August 1985 by the peon. That is how Exhibit 43-A was not sent to the concerned Court and remained in the cupboard of the Magistrate's Court at Kurla. From the deposition of the Addl. Chief Metropolitan Magistrate it is apparent that he was not aware that Exhibit 43-A had remained to be sent along with the confessional statement, Exhibit 43. The evidence of PW 18, the Judicial Clerk of the concerned court goes to show that Exhibit 43-A remained in the cupboard of that court through oversight under the impression that it was enclosed, along with Exhibit 43, in the envelope which was sealed on 29th August 1985.

18. It is significant to note that exhibit 43-A is also signed by accused and countersigned by the Magistrate. Therefore, it cannot be said that the said Exhibit was not prepared on 28/8/1985 but subsequently. When the evidence of the Addl. CMM was being recorded in the Court it was noticed that the record of the preliminary enquiry made on 28th August 1985 was not produced. He had, therefore, gone to Kurla court after the matter was adjourned to next date and made efforts to trace the earlier part of the confession i.e. the preliminary enquiry which was recorded on 28th August 1985. the same was later on traced by the Judicial Clerk who is examined as PW 18 and was produced through him. The preliminary enquiry made on 28th August 1985 was no doubt essential before the actual recording of the confession on subsequent date but the envelope which was produced subsequently in the Court through PW 18 does not appear to have been tampered with. Exhibit 43A also bore the signature of the accused. It was the record of the enquiry made by the Magistrate with the accused and the questions put to him to ascertain, ensure and satisfy the voluntariness of the confession that the accused was going to make. It is not in dispute that pursuant to the direction given on 28th August 1985 the accused was sent to jail custody and was produced from jail custody on the following day when again the Magistrate satisfied himself that no influence or threat was used against the accused and he was willing to give confession voluntarily.

19. In this connection reference may be made to the judgment of the Supreme Court in the case of (sic) v. State of Maharashtra . In para 50 of the judgment the Supreme Court has observed that if a confession is otherwise relevant it does not become irrelevant merely because the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If however the facts and circumstances surrounding making of the confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. The emphasis laid by the Supreme Court on the Magistrate recording a confession to satisfy himself by appropriate questioning of the confessing accused that the confession is true and voluntary and strict and faithful compliance with the provisions of Section 164 of the Code and the instructions issued in the Criminal Manual affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are calculated to impair the evidentiary value of the confessional statement.

20. In this case we have found that all the essential questions which were required to be put to the accused and enquiries made for the purpose of ascertaining the voluntary nature of confession made by the accused were not wanting in any way. The Magistrate had asked the accused whether any threat was held out to him or promise made to make the statement and ensured that there was no compulsion on the accused to make the statement and he was willing to make the confession voluntarily. In that respect number of questions were put to him as narrated earlier and he was also told that if he made any confession it would be used against him and that even if he did not make confession he would not be kept in police custody. After recording the confession the Magistrate had issued certificate that the confession was recorded in the presence and hearing and the record contained full and true account of the statement made by the accused. He had then put his endorsement that accused was told that he was not bound to make confession and if he made it would be used against him and the Magistrate believed that the confession was voluntarily made. The confession was also read over to the accused who made it and he admitted it to be correct and contained full and true account of the statement made by him and thereafter his signature was obtained. Only because the Magistrate did not issue certificate in Form No. 3 as per the Criminal Manual stating the grounds why he believed that the confession was genuine it cannot be said that the confession could not be accepted. The certificate issued in form No. 1 and the endorsement made by the Magistrate as per the said manual in form No. 2 go to show that he was satisfied that the confession made by the accused was voluntary. We do not think that it is so indispensable for the Magistrate to mention the grounds for which he believes that the confession made by the accused was genuine that in the absence thereof its genuineness can be doubted. Normally it is the function of the trial Court to satisfy itself and give reasons or state the grounds why the confession made by the accused is genuine or not. If the Magistrate is satisfied that the confession made by the accused is voluntary and made without any threats being held out to him or inducement given the confession can be said to be genuine. If the Magistrate is not satisfied about the genuineness of the confession he would not record it. After certificate is given by the Magistrate that he was satisfied that the confession was made voluntarily it would be redundant to issue further certificate giving reasons why the confession was genuine, because the confession can be said to be genuine only if it is made voluntarily. The genuineness of the confession can be tested by the circumstances brought on record and the evidence led by the prosecution to corroborate the confessional statement made by the accused. This could be done only at the stage of the trial when the evidence is led by the prosecution.

21. Reference may also be made to the judgment of the Supreme Court in the case of Shivappa v. State of Karnataka reported in 1995 (1) Crimes 138 in which it is held that the provisions of Section 164 of Cr.P.C. and the rules and guidelines framed by the High Court regarding recording of confessional statement of accused emphasise that enquiry should be made by the Magistrate to ascertain the voluntary nature of confession. From the nature of enquiry made by the Magistrate in this case and the precautions taken by him to satisfy himself that the accused was making confession voluntarily we have no room for doubt that the confession made by the accused admitting his guilt was voluntary and, therefore, could be accepted in evidence against hi. In the aforesaid circumstances, in our opinion, the Special Public Prosecutor had wrongly made a concession that the prosecution could not rely on the confessional statement. The trial Court was equally wrong and more irresponsible in going by the concession of the Public Prosecutor and not relying on the confession made by the accused which not only appears to be voluntary but is also corroborated by other circumstances on record and the evidence led by the prosecution.

22. Though the confession can be made the sole basis of conviction of the accused who makes it, in this case we find there are other material circumstances brought on record by the prosecution which not only corroborate and ensure the genuineness of the confessional statement made by the accused but the said circumstances are by themselves sufficient to prove the guilt of the respondent-accused.

23. The first circumstance which is proved by the prosecution against the accused is motive for accused to commit the crime in question. In this connection the prosecution has led the evidence of complainant PW :4 Devdhari, the father of deceased Vinodkumar. He and the accused as well as latter's father-in-law come from the same village in the State of Bihar. The witness had gone to his native place on 12th May 1985 where his father and his brothers resided. Three sons and two daughters of Ramshakal i.e. the father-in-law of the accused were also residing there. One of the daughters of Ramshakal was married to the accused. Complainant was informed by his brother that wife of Ramshakal and the accused, who is the son-in-law of Ramshakal used to often abuse his brother Devram and harass him. Ramshakal was the cousin of the complainant. He, therefore, enquired from wife of Ramshakal as to why his brother was being harassed by them. That time accused was present there. The complainant told her that his brothers who are related "International Standards Certifications" Section way quarrel but accused had no business to interfere in that quarrel. Hearing this accused rushed at him and started abusing him. The complainant slapped the accused in the presence of the persons who had gathered there. That time the accused had threatened the witness that when he returns to Bombay he would retaliate in way which he would remember for his life time. After the complainant returned to Bombay on 21st June 1985 Ramshakal asked him why he slapped his son-in-law i.e. the accused. That time Ramshakal threatened him. This had happened in the presence of PW 6 Sureshram who was the neighbour of the complainant. PW 6 has corroborated the incident of 21st June 1985 in his deposition. That incident had taken place near the residence of PW 6 and the complainant. The said incident is referred to in the confessional statement of the accused. thus there is evidence led by the prosecution about the motive for the accused to commit the crime in question. The evidence about the motive led by the prosecution which is deposed to by the complainant, the father of the deceased and supported by PW 6 Sureshram, who was the neighbour of the complainant, cannot be doubted. Ramshakal, the father-in-law of the respondent-accused who was earlier implicated as co-accused is the first cousin of the complainant, and room No. 14 in which the accused and Ramshakal were residing was in the name of grand father of these two cousins and, therefore, the complainant was also claiming right in the said room. The complainant has also deposed that for about two years before the incident there was dispute between Ramshakal and him and his relations with Ramshakal had been strained.

24. The trial Court has disbelieved the motive on the ground that the dispute which took place in the native place between the complainant and the accused in the month of May could not have provided a motive for the murder of the only son of the complainant which took place on 8th July as according to the Trial Court, "the sorrow or anger which might have initially been there, peters out with the passage of time." The trial Judge observes that to rule out the possibility that the motive furnished by incident of May 1985 having petered out with the passage of time the prosecution has relied on the fresh threat which was reiterated on 21st June 1985 and thus doubts the same observing that it was difficult to understand why the commission of the crime was delayed by the accused till 8/7/1985 though the son of the complainant had attended the school for 14 days in the month of June and for eight days in the month of July 1985. The said reasoning, to say the least, cannot appeal to any man of reason. Accused being the son-in-law of Ramshakal must have felt very offended when his father-in-law's cousin i.e. the complainant slapped him and he would not have forgotten or forgiven the said incident so easily in a period of les than two months. The reasoning given by the trial Court to disbelieve the motive cannot at all be said to be reasonably possible view which can be sustained in an appeal against the order of acquittal.

25. The next circumstance relied on by the prosecution is the identification of the tin box, bed sheet and 'lungi' which were used for carrying the dead body for causing disappearance of the evidence, as belonging to the accused and his father-in-law Ramshakal. After the intimation was received by Bombay CID and father of the deceased boy was informed about finding of a dead body of a boy in a trunk a Ganganagar from the train which had gone there and identified the photographs of the dead body. Looking at the trunk, the old tin box, the bed sheet and the "lungi" he suspected the hand of accused and his father-in-law. He had been to Ganganagar on 24th July 1985 and returned on 28th July 1985. He thereafter spoke about it to the inmates of the accused in room No. 14 who are examined as PWs 7 and 9 and himself visited that room on 31st July 1985. The police naik, who had also gone to Ganganagar and returned on 30th July 1985, had brought with him the muddemal articles like trunk, bed sheet, the clothes of the deceased and the lungi. Those articles were brought because the constable was convinced that the dead body and the clothes of the deceased conformed to the description given by PW 14 in the missing complaint and PW 14 had identified the clothes and the photographs of the deceased. After verifying that the tin box from room No. 14 was missing and the lungi and bed sheet which were found with the dead body belonged to the accused and his father-in-law, P.W. 14 lodged his FIR (Exh. 38) at the police station on 31st July 1985 implicating the accused and his father-in-law as the persons who must have murdered his son.

26. The tin box (Article No. 5), lungi (Article No. 6) and bed sheet (Article No. 1) were identified by PW 7 and PW 9 as belonging to the accused and his father-in-law. PW 7 Bhagwanram has deposed that he was residing in room No. 14 since 4-5 years, where accused and his father-in-law were residing. The father-in-law of the accused used to hold pooja twice in a year in the said room and keep the articles required for pooja in the old tin box which is produced in the court as Article No. 5. The witness was not in the room in question on the date of the incident as he had been to his native place on 23rd June 1985 and had returned to Bombay on 23rd July 1985. He has deposed that when he returned from his native place the tin box (Article No. 5) was not inside room No. 14 on 23rd July 1985. His native place is same as that of the accused and of the complainant. He has identified the tin box (Article No. 5) as the same which used to be there in room No. 14 in which the articles required for pooja were kept by the father-in-law of the accused. He also identified the lungi (Article No. 6) which was used by the accused and bed sheet (Article No. 1) which was being used by Ramshakal, the father-in-law of the accused. PW 9 Shriniwasram has deposed that he was residing in room No. 14 along with PW 7 Bhagwanram, accused and Ramshakal. On the date of the incident he had attended his work. He had left for his work in the morning and returned at 8 p.m. On that day when he learnt that Vinodkumar was missing he had gone out for searching him upto 1 O'clock in the night. He has identified Article No. 5 as the same trunk which was used by Ramshakal for storing the articles used for pooja. He has deposed that accused and Ramshakal were in room No. 14 on 8th July 1985 when he left for work at about 7.45 a.m. and that the accused in those days had night shift and there was holiday for him on the previous day. The accused was working as a watchman. He further deposed that when the complainant returned from Ganganagar he enquired with him on 30th July 1985 about the tin box. That time he noticed that the said box was missing from the room and thereafter he saw the box (Article No. 5) for the first time at the police station. He had identified the bed sheet and lungi, muddemal articles which were produced in the Court. According to him bed sheet (Article No. 1) belonged to Ramshakal and lungi (Article No. 6) was being used by the accused. The evidence of these two witnesses has stood the searching and grueling cross-examination. the fact that PWs 7 and 9 were residing in room No. 14 is not in dispute and is admitted by accused in his 313 statement. Only because the 'lingies' of the type of Article No. 6 and bed sheets of the type of Article No. 1 are available in the market it cannot be said that those articles did not belong to the accused and his father-in-law.

27. The reasoning of the trial Court that because PW 9 stated that when he did not notice the bed sheet in the room he believed that it had been taken away by the son of Ramshakal to his native place and that complainant did not go to the police station until 31st July 1985 to lodge the complaint against the accused though he had returned from Ganganagar on 28th July 1985 would only suggest that the articles had not been identified by PW 14 at Ganganagar does not appeal to us. PW 14 in his deposition has stated that in spite of the earlier incident and threats held out to him by the accused and his father-in-law, he did not suspect that the accused would go to the extent of taking away the life of his son in retaliation or in revenge pursuant to the earlier incident. Therefore, naturally when his son was missing on 8th July 1985 he did not suspect the hand the accused in the disappearance or murder of his son. After seeing the photographs and the school uniform of his son which he could easily recognise and identify he must have entertained a suspicion about the involvement of the accused after seeing the muddemal articles like tin box; 'lungi' and bed sheet used for carrying the dead body of his son. After seeing muddemal articles like tin box, 'lungi' and bed sheet of the accused he must be wondering whether those articles really belonged to the accused. After his return to Bombay on 28th July 1985 he, therefore, spoke about these things to the other two inmates of the room i.e. PWs 7 and 9 and himself visited room No. 14 to ascertain and verify it on his personal visit to the room and from PWs 7 and 9, the other two inmates of that room, he must have felt that accused and his father-in-law had hand in the murder of his son and, therefore, he lodged his complaint against these accused persons on 31st July 1985. In his complaint (Exh. 38) lodged on 31st July 1985 he stated that he identified the trunk as the one which he had seen in room No. 14 which was used for keeping pooja articles. He further states in the said complaint that he later on recollected that the bed sheet and 'lungi' were used by accused and his father-in-law. He has stated that he used to often go to the said room because the said room belonged to three cousins including Ramshakal and the complainant. He has also stated in his complaint that the relations between Ramshakal and his son-in-law i.e. the accused and himself were strained for one and half years due to family disputes in the native place. In the said complaint he has stated that he strongly suspected that his son Vinodkumar was kidnapped by Ramshakal and the accused for the purpose of committing his murder. This shows that at Ganganagar after seeing the 'lungi', bed sheet and the tin box (Article No. 5), used for keeping the dead body complainant must have entertained suspicion. But before expressing or saying anything about his suspicion he wanted to verify whether those articles were still in room No. 14 or not and he lodged his complaint within three days after his return from Ganganagar after he satisfied himself by visiting room No. 14 and having talked with PWs 7 and 9 that the tin box, lungi and the bed sheet were missing from the residence of the accused. the reasoning of the trial Court to discard that evidence on the ground that he should have given the names of the accused persons at Ganganagar itself immediately after seeing the muddemal articles cannot at all appeal to reason. Looking at those articles he must have entertained suspicion which he wanted to confirm after verifying from room No. 14 whether those articles were still there or missing and it was after verifying the same that he lodged his complaint. He had gone to Ganganagar not to lodge his complaint against accused but only to verify whether the dead body found there was of his missing son or not and, therefore, he was not called upon nor required to lodge his complaint against accused at Ganganagar or speak there about it to anybody.

28. The trial Court has, however, held that the prosecution has established that the trunk in which the body had been packed was the same trunk in which the articles of pooja were kept in room No. 14. Having given that finding the trial Court could not have doubted the involvement of the accused on the ground that no effort was made by the prosecution to ascertain from the employer of the accused whether he was at the place of his work during the period of alleged incident. PW 9 has categorically deposed in his evidence that on the date of the incident the accused was in the house and he was not on duty as he was having night duties those days. If the accused had attended his duties during the day time on 8th July 1985 nothing could have prevented him from leading that evidence nor it is his case that he was on duty on that day.

29. The prosecution has led the evidence of two more witnesses who had seen the accused taking a bundle in an auto rickshaw. PW 2 Abhayaraj Prajapati is a hawker who knew the accused and his place of residence. According to his deposition, on 8th July 1985 when he was returning to his residence for lunch at about 1-30 p.m. he saw the accused near an auto rickshaw carrying with him a bundle tied in a bed sheet. When questioned accused told him that he was going to his native place. he then rode on an auto rickshaw. On 4/8/1985 he saw the crowd collected and police van standing near the residence of the accused. He enquired why the crowd had collected and told the police that he wanted to make certain statement and gave his statement on 12th August 1985. PW 4 is Achyut Yadav, an auto rickshaw driver who had deposed that on 8th July 1985 at about 1-30 p.m. the accused had hired his auto rickshaw to go to kurla railway station. He had boarded the rickshaw opposite Bhagwat Bhuvan. He has deposed that the accused was carrying baggage which was wrapped in a dirty bed sheet. This witness had responded to the public notice given by the police in Mumbai Sakal on 10/8/1985 requesting the auto rickshaw driver who had carried a person from Hall Road to go to Kurla railway station in an auto rickshaw. On reading that notice he recollected about having taken some person in an auto rickshaw with a bundle wrapped in a bed sheet and, therefore, he saw P. I. More at Kurla police station where his statement was recorded. he identified the bed sheet (article No. 1) in which the muddemal article No. 5, the tin box was wrapped which contained the dead body. There is some discrepancy between PW 2 and PW 4 as to how the accused was carrying the bundle, whether on his shoulder or under armpit. It is significant to note that PW 4 had responded to the police pursuant to the public notice given. He had identified the bed sheet in which the luggage was carried by the accused. When he had been there in response to the public notice issued by the police, he identified the accused and also the bed sheet and, therefore, the evidence of PW 4, the auto rickshaw driver cannot be discarded, though his evidence cannot be the basis of the conviction of the accused. But the fact remains that the auto rickshaw driver came forward pursuant to the public notice and identified the accused and the bed sheet in which he was carrying the bundle which lends credence to his testimony. These two witnesses were not expected to suspect any foul play that they had to report about the same to the police. The response of PW 4, the auto rickshaw driver, pursuant to the public notice issued by the police appears to be completely natural.

30. The aforesaid evidence has to be considered in the context of the disappearance of Vinodkumar on 8th July 1985 when he was returning from his school. Vinodkumar used to return from his school at about 12-30 p.m. As he did not return home that day his mother naturally went to look for him in the school. thereafter she goes and informs her husband-complainant at the place of his work. The dead body was found in the school uniform. As per the post mortem notes the cause of his death was strangulation and the accused had admitted in the confessional statement that he had taken the boy to his room when he was returning from school. He then strangulated him and put him into the tin box which was in room No. 14. He had removed the pooja articles from the said box and kept in another box. The tie found on the dead body shows the markings of the school bearing initials "KHS" i.e. Kartika High school. So far as the homicidal death of the deceased Vinodkumar is concerned the same is proved by the post-mortem report and is held to be so by the trial Court which was not disputed on behalf of the accused either before the trial Court or before this Court. Thus the prosecution has proved all the offences of kidnapping, murder and causing disappearance of the evidence against the accused.

31. Surprisingly the Special Public Prosecutor appearing in the matter wrongly conceded that confessional statement cannot be relied on by the prosecution and more surprisingly he had not pressed the offence of kidnapping for murder under Section 364 of IPC as well as offence of murder under Section 302 of IPC in suite of the aforesaid evidence. The trial Judge has equally acted irresponsibly and simply did not consider the evidence which was led before him for the offence of kidnapping for murder under Section 364 and offence of murder under Section 302 of IPC going by the concession wrongly made by the Special Public Prosecutor. When the evidence was led before the trial Judge he ought to have considered the entire evidence on record and not simply gone by the concessions made by the public Prosecutor unless he was himself satisfied that the concessions made by the Public Prosecutor were correctly made and were warranted and justified by the evidence led before him. The trial Judge has also wrongly applied the ratio of the decision of the Supreme Court cited before him in the case of Palvinder kaur v. State of Punjab and has held that the prosecution has not established that the accused had knowledge about the commission of crime and had intention to remove the evidence in order to protect someone and, therefore, offence under Section 201 of IPC had failed. The trail Court has also given unnecessary importance to the fact that the prosecution had not examined the persons from the locality from where the accused had allegedly taken Vinodkumar with him. The presence of the accused in that locality was not unnatural which could have attracted the attention of shopkeepers. No person in the locality from where the accused had taken away the body could have suspected that the boy was being kidnapped by the accused as no force was used. It is not the case of the prosecution that the accused had forcibly taken the boy while on his way back home from the school. The accused was known to Vinodkumar and, therefore, accused must not have found any difficulty in persuading the boy to first go to the place of residence of the accused. The boy was hardly eight years old. He could have gone to the residence of the accused on any pretext offered by the accused. In his confessional statement the accused has stated that on 8th July 1985 the accused met the boy and asked him to go along with him to his room. That is how he took the boy to his room on the day of the incident and thereafter pressed his neck. After killing the boy his body was wrapped in the lungi and thereafter kept in a trunk by folding his legs and as appears in the photograph of the dead body in the trunk.

32. The defense Advocate argued that height of the boy was 3 ft. 10 inches as per P.M. notes while the length of the tin box was 1 ft. 11 inches and, therefore, it was not possible to keep the dead boy in the trunk. From the photographs (Exh. 28) it can be seen that the boy was kept in the box by folding his legs. The inquest panchanama shows that the trunk was 1 ft. 11 inches and the photographs (Exh. 28) show how the legs of the boy were in folded condition in the trunk.

33. Thus the prosecution has beyond any shadow of doubt established on the basis of the aforesaid material that the accused had motive to take revenge against the father of Vinodkumar. Pursuant to that motive the accused took the boy to his room when he was on his way back from his school i.e. Kartika High school on 8th July 1985. There he pressed his neck and killed the boy and thereafter put him in the tin box (Article No. 5) after wrapping it in lungi. The tin box was wrapped in a bed sheet belonging to his father-in-law and thereafter took the body in an auto rickshaw to kurla railway station and from there he went by local train to V.T. railway station and kept the tin box containing the dead body wrapped in the bed sheet into the bogie meant for Ganganagar in Bombay-Bhaglpur train which left V.T. station that evening. The body was taken charge of by Ganganagar Railway Police on 10th July 1985. The accused has thus committed the offence of kidnapping for murder under Section 364 of IPC, offence of murder under Section 302 of IPC and the offence of causing disappearance of the evidence of murder under Section 201 of IPC and, therefore, is liable to be punished for the said offences.

34. In the result, we allow this appeal and set aside the order of acquittal recorded by the Addl. Sessions Judge, Greater Bombay in Sessions Case No. 672 of 1985 and convict the respondent-accused and sentence him as follows:

Respondent-accused-Surendraram Sankaratiram is convicted for offence under Section 364 of IPC and sentenced to R.I. for life and to pay a fine of Rs. 1000/- in default to suffer further R.I. for three months. He is next convicted for offence under Section 302 of IPC and sentenced to R.I. for life and to pay a fine of Rs. 3000/- in default to suffer further R.I. for six months. Lastly he is convicted for offence under Section 201 of IPC and sentenced to R.I. for seven years and to pay a fine of Rs. 2000/- in default to suffer further R.I. for four months. All the substantive sentences shall run concurrently. The accused shall be entitled for set off under Section 428 of Cr. P.C. for the period of imprisonment already undergone by him as an under-trial prisoner. The respondent-accused shall be taken into custody forthwith.