Rajan And Raj Kishore vs State
1997 Latest Caselaw 281 Del

JUDGMENT

N.G. Nandi, J.

(1) The appellant stands convicted for the offence under Sections 364/302, Indian Penal Code by the learned Additional Sessions Judge, New Delhi in Sessions Case No. 132/86 in Fir No. 173/86, Police Station, Delhi Cantt.

(2) The facts leading to the present appeal, shortly stated, are that one S.C.Gain who resided at Wz 1290, Nangal Rai, New Delhi, alongwith his wife Sulata and daughter Vijaya aged about 7" years, lodged a report on 31/03/1986 videD.D. No. 77-B at 10.10 a.m. stating that his daughter Vijaya went from the house to play with the children in the neighbourhood; that she did not return to the house and had been missing; that the complainant S.C. Gain further reported on 1st April,1986 that het he came to know that one boy named Rajan, who was resident of Lajwanti Garden used to come to his house and used to offer toffees, biscuits, etc. to his daughter and the complainant had been told by the children of the locality that Rajan had taken complainant's daughter Vijaya on a cycle; that a suspicion was expressed on Rajan; that the offence came to be registered; that the dead body of Vijaya was noticed by the villagers in Ganda Nallah under the bridge of Brig. Hoshiar SinghMarg; that the dead body was identified by the complainant; that Rajan was chargesheeted and charge under Section 228 of the Code of Criminal Procedure came to be framed; that the learned Trial Judge, appreciating the prosecution evidence and further statement of the accused under Section 313 of the Cr. P.C., found the accused guilty of the offences charged and convicted the accused to undergo R.I. for a period of seven years and to pay a fine of Rs. 2,000.00 for the offence under Section 364, IPC and also sentenced the accused to undergo imprisonment for life for the offence under Section 302, IPC. Both the sentences were made to run concurrently. It is this finding of guilt and the consequent sentences imposed which have been assailed in this appeal under Section 374(2) of Cr. P.C. by the appellant/convict.

(3) Ms. Neelam Grover, learned counsel-amices curiae, for the appellant, has assailed the conviction contending (i) that the appellant is a juvenile and could not have been tried by the regular Court of Sessions and, therefore, the trial is vitiated and the conviction and the sentence is liable to be set aside, (ii) that the case rests solely on circumstantial evidence, that there is no direct evidence, that the motive is not established by the prosecution evidence and, therefore, the conviction only on the circumstance of last seen together cannot be sustained.

(4) We would first deal with the contention as regards the appellant being a juvenile and the trial, therefore, being vitiated. In this regard, reference may be had to the order dated 9.7.1996 and the statement of Maheshwari Prasad, S/o GouriPrasad, Incharge Head Master, Janta High School, Aliganj, District Jarnui, Bihar recorded on the same date by this Court.

(5) It has been stated by the witness Maheshwari Prasad, the Incharge HeadMaster, Janta High School, Aligan), District Jamui, Bihar that he is the Acting Principal of the said school, that a register regarding admission of children in the school has been maintained, that in the said register, the date of birth of the student who is admitted in the school is also mentioned. Referring to the original register brought by the witness, it has been stated that in the admission register regarding the year 1980 at serial No. 40, the name of Raj Kishore Prasad, S/o ShivNandan, r/o Village Bareo is recorded. The date of admission of the student is shown as 29/02/1980. The date of birth of this student is recorded as 2/01/1969. The boy was admitted in Class VII. The Certificate, Ex. Public Witness PW-26/1 is issued by the witness with regard to the date of birth of student Raj Kishore Prasad.The statement is also recorded of Rajeshwar Prasad Rajesh, S/o Sh. Laxmi Nonia,r/o Village & Post Office Aliganj, Distt. Jarnui, Bihar who has stated that the appellant Rajan is the sister's son of the witness. He was born in the house of the witness at Village & Post Office Aliganj Distt. Jamui, Bihar, that Rajan was born inFebruary, 1971, that the witness does not remember the exact date, that he got Rajan admitted in February, 1980 in Janta School, Aliganj; that prior to that he was studying in a middle school which was washed off in floods and there is no trace of that school any more nor any record of that school is available.

(6) It will be seen from the above that according to the witness MaheshwariPrasad, the Acting Principal of Janta High School, Aliganj, Distt. Jarnui, Bihar, the birth date of the student Raj Kishore Prasad, as per the school register, is 2/01/1969 and that the said student, as per the Certificate Ex. Public Witness PW-26/1 was admitted to the said school on 29/02/1980 in Class VII. In face of the documentary evidence Ex. Public Witness PW-26/1, the date of birth of the appellant. Raj Kishore Prasad being 2/01/1969, no credence can be attached to the oral statement of the maternal uncle Rajeshwar Prasad Rajesh as regards the date of birth of the appellant/convict and we are inclined to accept the school Certificate, Ex. Public Witness PW-26/1 with regard to the age of the appellant on the date of the commission of the offence and for this reason, the contention in this behalf by learned Counsel for the appellant/convict deserves to be rejected.

(7) It is not much disputed that Vijaya, minor daughter of the complainantS.C. Gain was missing from 31/03/1986 and her dead body was seen by the villagers in the Ganda Nallah, under the bridge of Brig. Hoshiar Singh. According to the post-mortem report, Ex. Public Witness Public Witness 13/A, the cause of death is asphyxia as a result of ante-mortem drowning. It is not in dispute that there is no direct evidence and the prosecution, for the purpose of establishing the guilt of the accused, relies on the circumstance of deceased having been last seen in the company of appellant, Rajan.

(8) In the Fir, it is alleged that one boy named Rajan, aged 18/19 years who resides somewhere in Lajwanti Garden, used to visit the house of the complainant for watching T.V. or on some other pretext and used to give biscuits, toffees to Vijaya which the complainant has come to know from the children of the neighbourhood and that one boy had also seen Rajan taking Vijaya with him on the bicycle.

(9) Public Witness Public Witness 9, Bimal Roy, S/o Saran Roy deposed that before about one year, at about 11.30 a.m., when he was waiting for the bus at Nangal Rai Bus Stand, he saw the accused going on bicycle and the girl named Vijaya was sitting on the frame of the cycle and they were going towards the side of Delhi Cantt; that the witness later on came to know that the girl Vijaya was missing; that he told the father of the deceased about he having seen the accused going on the cycle with Vijaya. In thecross-examination, it has been deposed that on the next day morning, at about 7 or8 a.m., he came to know about the missing of Vijaya.

(10) Public Witness Public Witness 24, the complainant S.C. Gain stated in the evidence that on 3 1/03/1986, in the morning, he had left for his office, that he returned home at about4.45 p.m. and then he came to know that his daughter Vijaya, aged about 7" years,was missing from the house; that he had lodged a report. Ex. Public Witness Public Witness 17/A. It is further stated that one girl, with whom his daughter was playing, told him that his daughter was called by the accused and thereafter taken on a cycle, that this fact was also told to the witness by a boy named Bimal and, therefore, he again went to the policestation. The evidence of Public Witness Public Witness 9 suggests that he informed Public Witness Public Witness 24 the complainant about he having seen the accused going on the cycle with Vijaya. Public Witness Public Witness 24 has also,in his evidence, stated that Bimal told him about he having seen Vijaya taken on cycle by the accused. Nothing has been suggested from the cross-examination of Public Witness PW9 so as to discard his evidence as regards the fact of accused having taken Vijaya on the bicycle with him as the witness having seen the same. Appreciating the evidence of Public Witness Public Witness 9 and Public Witness Public Witness 24, the circumstance of the deceased having been last seen in the company of the accused, is sufficiently suggested.

(11) The evidence of Public Witness Public Witness 15, Rajinder, a child witness, suggests that about 2 years ago, the accused present in. Court had come to the stall run by the son of his paternal aunt which was situated opposite Sangam Cinema, New Delhi; that the witness was working at the said stall helping in the business of selling 'chhole-bhature'; that the accused was accompanied by a small girl; that the accused had ordered for two plates of 'chhole-bhature'; that the accused gave the witness a currency note of Rs. 50.00, that the witness did not have the change and, therefore,went to the 'Pan' shop and getting the change, returned Rs. 40.00 to the accused and asked the accused to collect the remaining Rs.6.00 afterwards as he did not have the same that time, that the accused again came to the stall of the witness after the show was over and at that time also, the accused was accompanied by the small girl and the witness gave the balance Rs. 6.00. The evidence of this child witness, Public Witness Public Witness 15stands corroborated by the evidence of PW 9 and Public Witness Public Witness 8 and all this substantiates the prosecution version that the deceased was last seen in the company of the accused.Thus, the circumstance of deceased having been last seen in the company of the accused has been sufficiently established from the evidence on record.

(12) On behalf of the appellant, reliance has been placed on the decision in the case of Padala Veera Reddy v. State of Andhra Pradesh, . Referring to para 10, it has been contended that the claim of circumstances,applying the test laid down in the case (supra) has not been established in the instantcase. The tests laid down in the case (supra) are-

(1)the circumstances from Which an inference of guilt is sought to bedrawn, must be cogently and firmly established;

(2)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3)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

(4)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.

(13) It may be appreciated that in the instant case, there is no direct evidence with regard to the commission of the offence and the only evidence relied on by the prosecution is the circumstantial evidence in the nature of deceased having been last seen together with the accused, and, therefore, the motive for committing the crime would assume significance, as laid down in the decision in the case of Badha Satya Venkata S. Rao v. State of Andhra Pradesh, 1994 Scc (Cri.) page 1554. According to the prosecution, the motive for committing the offence by the accused is the immoral advances made by the accused to the mother of the deceased.

(14) Public Witness Public Witness 12,' Sulata, W/o S.C. Gain, the mother of the deceased deposed that the accused used to talk vulgar things and teased her in the factory where they were working together, that she reported about this misconduct/misbehavior of the accused to the factory owner; that the factory owner turned the accused out ofservice; that before the accused was turned out from the employment, he used to visit the house of the complainant and gave eatables, etc. to Vijaya, daughter of the witness aged about 7 " years and he also used to take her out of the house.

(15) In the cross-examination, it has been deposed that the accused was in the employment prior to the witness joining the factory; that the accused never abused the witness; that the witness did not like the behaviour by the accused at all; that she did not tell about this misconduct to her husband; that on the day when her daughter was missing, her husband made enquiries from the house of the accused,that he had gone to the house of the accused at about 5 p.m. but the accused did not meet him there; that her husband had gone again to the house of the accused at about9.30 p.m. and the accused met him there; that the accused was brought to their house by her husband, who was accompanied by one or two other persons of the locality and the accused was detained at their house for about one hour and after about onehour, the accused was let off.

(16) The evidence of Public Witness Public Witness 12, the mother of the deceased, clearly suggest that she reported about the misconduct/misbehavior by the accused to the factory owner as a result of which the accused was turned out of the employment and prior to this, the accused was visiting the house of the complainant and used to give eatables to Vijaya. It is also suggested that the witness did not like/tolerate the immoral advances/misbehavior by the accused at all. Appreciating the evidence of Public Witness Public Witness 12, it cannot be said that the accused could be motivated to commit the murder of the daughter of Public Witness Public Witness 12 inasmuch as Public Witness Public Witness 12 never responded to the immoral advances towards her attempted by the accused.

(17) The foregoing discussion would reveal that all what has been established by the prosecution is that the deceased was last seen in the company of the accused.The evidence of child witness Public Witness Public Witness 15 is also corroborated by the evidence of Public Witness Public Witness 15and Public Witness Public Witness 8, Dalip Kumar and the cinema tickets Ex. P1 and P2 of Sangam Cinema bearing Nos. 76028 and 76029, which are recovered from the accused in personal search vide Memo, Ex. Public Witness Public Witness 6/A dated 1/04/1986 and the register Ex. Public Witness Public Witness 8/Cand nothing further.

(18) In the above view of the matter, in our opinion, the learned Trial Judge could not have justifiably recorded the finding of guilt and the consequently imposing the sentences against the accused inasmuch as the complete chain of circumstances pointing to the guilt of the accused and accused alone cannot be said to have been established in absence of motive to commit the crime and, therefore,the conviction and the consequent sentences would be liable to be set aside.

(19) In the result, the appeal is allowed. The conviction recorded and the sentences imposed in Sessions Case No. 132/86 in Fir No. 173/86 Police Station Delhi Cantt. are hereby set aside. The appellant is ordered to be set at libertyforthwith, if not required in any other case.