Mahipal vs State
2009 Latest Caselaw 1474 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                Crl.A. No. 56/2009

+                           Date of Decision: 20th April, 2009

#    Raj Kumar                         .....Appellant
!                  Through: Mr. R.S. Soni, Advocate.

                versus

     State                           .....Respondent
^                 Through: Mr. M.N. Dudeja, APP.

                     AND

%               Crl.A. No. 221/2009

#    Mahipal                .....Appellant
!                  Through: Mr. R.K. Burman, Advocate.

                versus

     State                           .....Respondent
^                 Through: Mr. M.N. Dudeja, APP.


     CORAM:
*    HON'BLE MR. JUSTICE BADAR DURREZ AHMED
     HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?

                          JUDGMENT

P.K.BHASIN, J:(Oral)

These two appeals are directed against the judgment dated

08.12.2008 and order on sentence dated 11.12.2008 passed in

Sessions case No.37/2008 arising out of the FIR No. 138/2003 PS

Kapashera, whereby the Additional Sessions Judge, Dwarka has convicted the two appellants under Sections 302/201/363 IPC.

The appellant Raj Kumar was additionally convicted under

Section 457 IPC also. Both the appellants were sentenced to life

imprisonment and also to pay a fine of Rs.5,000/- each, in default

to further undergo simple imprisonment for three years under

Section 302 IPC. Under Section 363 IPC the appellants were

awarded five years‟ rigorous imprisonment and fine of Rs.3,000/,

in default of payment of fine to undergo simple imprisonment for

one year. For the conviction under Section 201 IPC appellants

were sentenced to two years rigorous imprisonment and fine of

Rs. 1000/- each, in default to undergo simple imprisonment for

six months. Appellant Raj Kumar was awarded rigorous

imprisonment for two years and fine of Rs.1,000/-, in default of

payment of fine to further undergo simple imprisonment for six

months under Section 457 IPC. All the substantive sentences,

however, ordered to run concurrently.

2. The appellants have been held guilty of having first

kidnapped one 3 ½ years old child Himanshu from his house in

the night intervening 24/25.7.2003 and thereafter for having

murdered him and thrown away his dead body in order to

destroy the evidence of the crime. The relevant facts are that the

appellant Raj Kumar had married PW-1 Smt. Rachna, who was a

widow, on 15.5.2002. Her first husband Devender had died on

5.11.1999 and out of that wedlock she had been blessed with the

deceased child Himanshu. It was the case of the prosecution that

although Raj Kumar had married a widow having a child from her

first marriage but after marrying her the relations between

husband-wife became strained over some matters including that

of Raj Kumar being a drunkard due to which Rachna left her

matrimonial home and started living at her parental house in

Shahabad, Mohammadpur, New Delhi. Further case of the

prosecution is that on the night of 24.7.2003, the complainant

Rachna as well as all other family members of her family

including her son Himanshu had gone for sleep and when at

about 2.00 a.m. the mother of the complainant Smt. Rachna woke

up to attend the call of nature she noticed that Himanshu was

missing from his bed, which was adjoining to the bed of his

mother Smt. Rachna. She then woke up everyone else also. They

all looked around for Himanshu but he could not be found and so

the police was informed. The police reached and immediately

on coming to the house of the complainant her statement Ex.PW-

1/A was recorded.

3. In the statement Ex.PW-1/A Smt. Rachna had claimed that

after her marriage with accused Raj Kumar, a TSR driver, on

15/05/02, which was solemnized after the death of her first

husband, their relations became strained for some reasons and

as Raj Kumar was a drunkard and so she had started living with

her parents. That night at about 11 p.m. Himanshu was put to

sleep. Around 2 a.m. when her mother got up for going to

bathroom she did not find Himanshu on his bed. Then everybody

was woken up and Himanshu was not found in the house and was

not traced outside also. She expressed the suspicion against her

husband Raj Kumar in the disappearance of Himanshu. In view of

the suspicion expressed by Rachna that her husband only must

have removed the child after entering the house SI Shiv Singh

(PW-11) got one FIR under Sections 351/363 IPC registered. He

also accompanied by PW-4 Mukesh, brother of the complainant,

who was also living along with her in the same house, and other

police officials went to the village of Raj Kumar which was

somewhere in District Sonepat. Raj Kumar was not found present

in his house at the time of their visit there. His father was,

however, found and he gave the information that Raj Kumar had

not come to the house even on the last night (when the deceased

Himanshu was allegedly kidnapped from his house). The police

team also came to know that Raj Kumar was a close friend of one

Mahipal, (appellant in Crl.A. No. 221/09) who was also living in

the same village. Then the police team went to the house of

Mahipal but he was also not present in his house. However,

Mahipal‟s brother Ashok was present and he informed the police

that Mahipal was a vagabond type of person and then Ashok also

joined the police team for the search of Raj Kumar and Mahipal.

4. Since the two accused could not be found at different places

where Ashok had taken the police, the police team came back to

Delhi. When they reached Singhu Border, Raj Kumar was spotted

there by PW-4 and immediately he was captured. He was

interrogated by the investigating officer and he is alleged to

have made a disclosure statement and informed the police that

he could get the dead body of Himanshu recovered. Raj Kumar

also allegedly informed the police regarding the involvement of

accused Mahipal in the crime and then Raj Kumar had pointed

towards accused Mahipal who was standing at some distance

from the place from where Raj Kumar was apprehended.

Thereafter accused Mahipal was also arrested and he also

allegedly made a disclosure statement and he also volunteered

to get the dead body of Himanshu recovered. It is the further

prosecution case that pursuant to their disclosure statements

both the accused had then led the police team to a place near a

school in Shahbad Mohammadpur, in which area the complainant

was living with her parents and brothers, and from that place on

their pointing out the dead body of the deceased Himanshu was

recovered which was lying in the bushes.

5. The dead body of Himanshu was got subjected to post

mortem examination and as per the post-mortem report Ex. PW-

13/A the cause of death of the deceased child was „smothering‟.

6. After completion of usual investigation formalities both the

accused-appellants were charge-sheeted and in due course they

came to be charged and tried for the various offences mentioned

already and for which they were finally convicted also by the

learned Additional Sessions Judge. Feeling aggrieved, both the

convicts filed separate appeals. However, since both the appeals

had arisen out of the same judgment of the trial Court they were

heard together and so are being disposed of by this common

judgment.

7. The arguments advanced by learned counsel for the two

appellants were almost common. It was contended that the

conviction of the accused is not based on any admissible

evidence and is based on the confessional statements which they

had allegedly made after arrest. In this regard learned counsel

drew our special attention to paras No.14, 16, 33, 34 and 35 of the

impugned judgment wherein the learned Additional Sessions

Judge has not only extensively quoted the totally inadmissible

parts of the disclosure statements of both the accused but had

also made totally impermissible observations in para No.35 to

the effect that the disclosure statements of the two accused to the

effect that they had kidnapped and murdered the deceased child

Himanshu were duly corroborated and strengthened from not

only the medical evidence adduced by the prosecution but also

from quick succession of events which followed after

disappearance of the child from his house. Learned counsel

further submitted that the entire prosecution case rests on the

solitary circumstance of the recovery of the dead body at the

pointing out of the two accused pursuant to their respective

disclosure statements and based on that solitary circumstance

alone the learned trial Court has convicted them. It was further

contended that even this circumstance had not been established

beyond reasonable doubt and in any event even if it is held to be

established, the same by itself was not sufficient to convict the

accused persons for the offence of murder. It has also been

argued that although the prosecution had relied upon one more

circumstance but that was even more weak circumstance than the

first one and that circumstance is the expression of suspicion by

the wife of accused Raj Kumar against him for his involvement in

the disappearance of Himanshu and even the trial Court has not

taken that into consideration. Learned counsel submitted that in

fact that police had already recovered the dead body of the child

before the accused were arrested and that is evident from the

fact that in their arrest memos, which were allegedly prepared

around 6.30 p.m. on 25.7.2003, Section 302 IPC was mentioned.

Learned counsel argued that it is the prosecution case itself that

by the time the accused persons were arrested it was not known

to the police that child Himanshu had been murdered and so

Section 302 IPC having been written in the first arrest memos

shows that the police had already come to know about the

murder of Himanshu and the body of Himanshu also must have

been recovered by the police.

8. On behalf of appellant Mahipal his learned counsel

submitted that as far as this accused is concerned neither there

was any motive for him to join his co-accused Raj Kumar in

kidnapping the child and then killing him nor even a suspicion

was expressed against him by any of the members of the

complainant‟s family and so there was no justification for his

arrest. Learned counsel for Mahipal also submitted that as far as

the circumstance of recovery of dead body of the deceased

Himanshu allegedly was pursuant to the disclosure statement

made by Mahipal was totally inadmissible inasmuch as it was not

clear from the evidence of any of the witnesses who had spoken

about the recovery of the dead body of the child as to who out of

the two accused had given the information about the child‟s body

to the investigating officer first in point of time and further that

none of the witnesses had also claimed as to what exactly this

accused had informed to the police and where he had led the

police team along with the co-accused. In support of this

submission, learned counsel has placed reliance on a decision of

a Division Bench of this Court in "Arun Kumar vs. State", (1996)

2 Crime 470, wherein the evidence of recovery of the dead body

of the deceased on the pointing out of the two accused persons

was not found to be acceptable. Learned counsel submitted that

Mahipal has been implicated in the present case just because the

police had some information that he happened to be a closed

friend of accused Raj Kumar although even to that effect also

there is no evidence whatsoever.

9. On the other hand learned APP for the State submitted that

prosecution has been able to establish various circumstances

which lead to only one conclusion that both the accused had in

furtherance of their common intention kidnapped and killed the

deceased child Himanshu. Mr. Dudeja submitted that the case

against the two accused was not based on one circumstance only

and the circumstance which the prosecution had relied upon are:

"(1) Suspicion expressed against accused Raj Kumar by his wife immediately on the child Himanshu having been found missing from his house around 2.00 a.m. on 25.7.2003;

(2) There was a strong motive for accused Raj Kumar to eliminate child Himanshu who was born out of the wedlock between his wife and her first husband Devender Kumar, as Raj Kumar was nursing hatred towards Himanshu;

(3) On 24/-7/03 accused Raj Kumar had threatened his brothers-in law PW-3 Yogesh and PW-4 Mukesh(brothers of the complainant Rachna) that he would kill Himanshu;

(4) The dead body of Himanshu was recovered pursuant to the disclosure statements made by the both the accused;

(5) Death of deceased Himanshu was found to be homicidal."

10. Mr. Dudeja submitted that the cumulative effect of all these

circumstances which had been established also beyond

reasonable doubt lead to the only conclusion that both the

accused were responsible for the offences for which they have

been convicted. Mr. Dudeja submitted that there is no embargo

on the Court taking into consideration the joint disclosure

statement of both the accused as well as the evidence of

recovery of the dead body pursuant thereto. In support of this

argument he placed reliance on the decision of the Hon‟ble

Supreme Court in "State vs. Navjot Sandhu and others", AIR

(2005) 11 SCC 600 (which has now come to known as the

Parliament Attack case). It was submitted that in this case, the

Supreme Court has held that evidence of joint disclosures of

more than one accused is not inadmissible and so the decision of

the Division Bench of this Court cited by the counsel for accused

Mahipal to the effect that joint disclosure statements are not not

admissible stands impliedly overruled. Mr. Dudeja further

submitted that even if this court finds the circumstance of

recovery of dead body only to have been established beyond

reasonable doubt that circumstance itself would also be sufficient

to sustain the conviction of both the accused persons in support

of this contention he placed reliance on one decision of Supreme

Court in "Gulab Chand vs. State of Madhya Pradesh", AIR

1995 SC 1598.

11. At the outset we may state that we have noticed that in the

impugned judgment, as was pointed out by the learned counsel

for the appellants, that the learned trial Judge has extracted

certain portions from the disclosure statements of the two

accused, which are totally confessional in nature, in the

impugned judgment and has also observed that the same were

corroborated also by other evidence. That is quite evident from a

bare reading of paras 33, 34 and a part of para no.35 of the

impugned judgment which are reproduced below:

"DISCLOSURE STATEMENT:-

33. Ex. PW4/B is the disclosure statement of accused Raj Kumar. Short and summarized disclosure statement of accused Raj Kumar is as under:

"Disclosed that he is residing at village Mukimpur, Jila Sonepat, Haryana and he is plying TSR between his village and Singhu Border, Delhi. He got married with Smt. Rachna in the year 2002. Smt. Rachna was already married having a son, Himanshu, aged 3 ½ years before his marriage. After the marriage with Smt. Rachna he felt that his wife, Smt. Rachna was more emotionally attached to her son Himanshu than to him. His wife Smt. Rachna used to spend more

time in caring of her son without caring the marital relations with him as a result of which he was jealous of his step son. Moreover, he was not born from his lions.

Because of this reason he determined to eliminate Himanshu. Once, before 24.7.2003 he tried to eliminate Himanshu by taking him in his house but could not succeed as his father in law reached there very next day and took him away. On 24.7.2003 he along with co-accused Mahipal came to Delhi who has given him the advice that if he takes away deceased Himanshu from his in laws house the wife Rachna automatically will follow him. On this advice he along with Mahipal came to Delhi and telephoned at in laws house which was attended by his brother in law, Mukesh. He threatened him and told him that he will kidnap the Himanshu and run away to UP. Accordingly at about 1.30/2.00 am, he along with co-accused Mahipal reached to the in laws' house and he make stand co-accused Mahipal at the gate and he entered into the house by jumping over the wall where he saw deceased Himanshu sleeping nearby his wife at a cot in naked condition. He lifted the boy Himanshu and came out from the house and handed over the boy to the co-accused then jump over the wall and thereafter they were going towards Johar(Pond) near Senior Secondary School, Shahbad Mohammadpur. On the way the deceased Himanshu woke up and started weeping. Thereafter he told the co- accused Mahipal to catch hold of deceased Himanshu by legs and hands and he close the mouth and nose of the deceased Himanshu as a result of which he died and then they had thrown the dead body near pond by the side of the wall and they run away from the spot and took a bus and reached to the Sonipat. He can point out the place where they have thrown the dead body of deceased Himanshu and the dead body can be recovered from there."

34. Ex. PW4/A is the disclosure statement of co-

accused Mahipal. Short and summarized disclosure statement of co-accused Mahipal is as under:

" Disclosed that he is married and residing at village Mukimpur, Sonipat, Haryana and is a labourer. Whenever he does not find work he work with his friend Raj Kumar on TSR. Raj Kumar used to tell him about his grievances about the marital relations with his wife, Smt. Rachna. Raj

Kumar used to tell him that he can not accept deceased Himanshu as he is not born from his lions and that accused Raj Kumar used to tell him that if deceased Himanshu is eliminated his marital relations can improve. As his friend he has given advice to accused Raj Kumar that if he kidnapped deceased Himanshu, his wife would automatically follow him. Accordingly on 24.7.2003 he along with Raj Kumar reached at Najafgarh and he telephoned at his in laws' house and thereafter at about 2.00 am he along with accused Raj Kumar reached the house of in laws' of accused Raj Kumar, accused Raj Kumar jumped over the wall and entered into the house. Thereafter, he brought the deceased Himanshu who was naked and handed over to him. Thereafter he along with accused Raj Kumar were on the way and in between the boy Himanshu started weeping. On this accused Raj Kumar told him to catch hold of his legs and hands. He accordingly caught hold the hands and legs of deceased Himanshu and accused Raj Kumar close the mouth and nose of the deceased as a result of which the boy died. Thereafter they have thrown the dead body of the boy Himanshu into bushes near Johar near Senior Secondary School and thereafter they run away to Sonipat by boarding a bus. He can point out the house of in laws' of accused Raj Kumar and also the place where the dead body was thrown and also get recover the dead body of the deceased Himanshu from the said place."

35. (i) The disclosure statement of accused Raj Kumar Ex.PW4/B and disclosure statement of co- accused Mahipal, Ex.PW4/A are corroborated with the medical evidence i.e. Post Mortem report Ex.PW13/A wherein the cause of death is shown to be due to smothering as there is no other cause suggested by the accused persons in the present case.

(ii) The disclosure statement Ex. PW4/B and Ex. PW4/A further gets strengthened by quick succession of events i.e. immediately taking away the deceased Himanshu and on noticing the same by mother of complainant Smt. Rachna, father Om Prakash telephoning the police at 2.20 a.m............."

12. In our view, learned trial Judge has not adopted the correct

approach while dealing with the disclosure statements of the

accused. He was not expected to bring into his judgment the

entire disclosure statements of the accused and then to say that

the same were corroborated also by other evidence. In fact we

are coming across many judgments of Courts below where this

kind of mistake is being committed which is not desirable.

However, we are also of the view that just because of this

approach of the trial Judge the accused cannot derive any

benefit. The prosecution evidence has still to be analysed by us

independently in order to find out whether the conviction of the

two accused or anyone of them can be sustained or not and now

we shall undertake that exercise.

13. We shall take the last circumstance first. The prosecution

case is that the deceased Himanshu was murdered. On this

aspect, learned counsel for the two appellants did not dispute the

fact that the death of the child Himanshu was homicidal. That fact

is even otherwise clearly established from the evidence of PW-14

Dr. B.N.Mishra who proved the post-mortem report Ex.PW-13/A.

This report was prepared by Dr. M.M. Narnaware who however

could not be examined since he had expired. PW-14 had

deposed that he had been conducting post-mortems with Dr.

Narnaware and that he could identify the handwriting and

signatures of Dr. Narnaware. In our view, the fourth circumstance

stood established.

14. Now we come to the first and second circumstances relied

upon by the prosecution as both can be taken together since

evidence to establish these circumstances is of common set of

witnesses. Suspicion expressed against accused Raj Kumar by

his wife PW-1 Rachna for the disappearance of child Himanshu

had led to his arrest. That suspicion was expressed by PW-1

immediately when the police had come to her house on being

informed of the disappearance of the child while sleeping in the

house on the night of 24/25-07-03. PW-1 had deposed that Raj

Kumar did not like Himanshu as he was born out of her wedlock

with Devender Kumar who had expired. To the same effect is the

evidence of PW-2 Om Parkash, father of PW-1 Rachna, PW-3

Yogesh and PW-4 Mukesh, the two brothers of Rachna. PW-2 Om

Prakash deposed that accused Raj Kumar used to beat his

daughter and harass her and used to say that why should he look

after Himanshu who was not his child. He further deposed that

accused was a habitual drunker also and his daughter had told

him all these facts and she had started living with him (PW-2)

along with the child. He further deposed that once accused Raj

Kumar had come to their house under the influence of liquor and

had taken away Himanshu without informing anyone and on the

same night he (PW-2) had brought back the child. This witness

also deposed that he had also expressed his suspicion before the

police that Himanshu had been kidnapped by Raj Kumar since he

had earlier also taken away the child. PW-3 Yogesh, the brother

of the complainant Rachna also deposed that Raj Kumar was

asking his sister Rachna to leave Himanshu as he was not a

legitimate child. He further stated that when the police had

asked them whether they have any suspicion against anyone they

had expressed their suspicion against Raj Kumar. To the same

effect is the testimony of PW-4 Mukesh, another brother of the

complainant Rachna. None of these witnesses could be

discredited in cross-examination as far as their statements to the

effect that accused Raj Kumar had strained relations with his wife

Rachna soon after their marriage and we have no reason to

disbelieve anyone of them. Accused Raj Kumar is the husband of

complainant Rachna, Son-in-law of PW-2 Om Prakash and

brother-in-law of PW-3 and 4. In case accused Raj Kumar really

had cordial relations with his wife Rachna and he had also known

ill will against the deceased Himanshu they would not have

falsely deposed against him. We are, therefore, of the view that

the first two circumstances relied upon by the prosecution also

stood established beyond reasonable doubt. However, these

circumstances relating to the „suspicion‟ expressed by the

complainant, her father and two brothers and the „motive‟ are

incriminating circumstances only in respect of accused Raj

Kumar. Against accused Mahipal none of them had either

expressed any suspicion or attributed any motive to him for

joining hands with co-accused Raj Kumar for killing Himanshu

after kidnapping him. Raj Kumar, of course could be expected to

have a motive to eliminate Himanshu, who was not his own son,

since his wife was paying more attention to the child from her

earlier marriage than to him as her husband. There was nothing

unusual for him to have developed ill feeling towards such a

child after living with him for sometime during which period he

might have found that his wife was not giving him the attention

which he as her husband was expected to receive. So, we do not

find force in the submission of the learned counsel for accused

Raj Kumar that there could possibly be no motive for Raj Kumar

to have killed Himanshu when he had married Rachna knowing

that she had a child from her first marriage nor can it be said to

be a weak motive also.

15. Circumstance No.3 relied upon by the prosecution is that a

day before the disappearance of the deceased child Himanshu

accused Raj Kumar had made telephone calls to his brothers-in-

law PW-3 Yogesh and PW-4 Mukesh that he would kill Himanshu.

This has been deposed to PW-3 Yogesh as well as PW-4 Mukesh.

In the cross-examination of PW-4 it was not even suggested to

him on behalf of accused Raj Kumar that he had not made any

such threatening call to him. PW-2 Om Prakash, father of these

two witnesses had also claimed that his son Mukesh had received

a threat call from Raj Kumar on 24-07-2003. To him also it was

not suggested in cross-examination that he had not made any

threatening call to Mukesh. In these circumstances, we have no

reason to disbelieve their testimony and although a bald

suggestion was given to PW-3 Yogesh in cross-examination that

Raj Kumar had not extended any threat to kill Himanshu but we

have no reason to reject the testimony of PW-3 Yogesh also in

this regard. This witness had informed to the police also on the

night of incident itself regarding this threat call received by him

from Raj Kumar. As has been observed already, accused Raj

Kumar is the brother-in-law of PWs 3&4 and son-in-law of PW-2

Om Prakash and so they were not expected to falsely implicate

him by expressing a baseless suspicion against him before the

police and introducing a false motive aspect into the prosecution

case. So, circumstance no. 3 also stood established by the

prosecution beyond any doubt. Extending of such like threat

before the occurrence of the incident has been considered to be

an incriminating circumstance even by the Supreme Court in one

of its decisions in the case of "Pershadi v. State of Uttar

Pradesh", AIR 1957 SC 211.

16. We now come to the fourth circumstance relied upon by the

prosecution and that circumstance is that pursuant to the

disclosure statements made by the two accused the dead body of

the deceased child was recovered on the night of 25.7.2003. We

have examined the evidence of the prosecution witnesses who

have deposed regarding the making of disclosure statements by

the accused persons and then recovery of the dead body

pursuant to that information. As far as the arrest of both the

accused persons from Singhu border, which we were told is the

Delhi-Haryana border, and both the accused persons used to live

in village Mukimpur in District Sonepat which was at some

distance from this border. They were arrested around 6.30 p.m.

on 25/07/03. The investigating officer SI Shiv Singh who had

gone to arrest accused Raj Kumar only(since there was no

suspicion against accused Mahipal) alongwith some constables

and PW-4 Mukesh and one Kailash, has deposed that when they

could not find accused Raj Kumar at his house and even at some

other places they returned back to Delhi and when they reached

Singhu border accused Raj Kumar was seen there by Mukesh and

Kailash and on his identification was captured and was

interrogated. PW-11 further deposed that accused Raj Kumar

pointed out towards one person with a beard standing at some

distance from there and accused Raj Kumar identified him to be

accused Mahipal and then he interrogated Mahipal also. At first

instance both the accused did not tell him anything but when

accused Raj Kumar was interrogated further he confessed the

crime and also informed that the dead body of the deceased had

been thrown near the wall behind school of Shahabad

Mohammadpur and further that the dead body of was recovered

from a place near Johar(dry pond) of Senior Secondary School,.

Shahabad, Mohammadpur. PW-11 also stated that "Both the

accused persons then led us to the place where they had thrown

the dead body of Himanshu and in this regard pointing out

memos Ex.PW-4/G and Ex.PW-4/M were prepared.". In cross-

examination PW-11 stated that accused were arrested around

6.30 p.m. on 25/07/03 and it was put to him that by the time the

accused were arrested the dead body of the deceased child had

not been recovered and he answered in the affirmative. The main

ground of challenge to the evidence of this police witness urged

by the learned counsel for the accused-appellant Raj Kumar was

that if actually the dead body of the deceased had not been

recovered at the time of arrest of the two accused then in their

arrest memos as well as in the disclosure statements Section 302

IPC could not have been mentioned by PW-11 SI Shiv Singh and

since this Section of IPC is actually mentioned in the arrest

memos and disclosure statements it becomes clear that the

police had already come to know that the child had been

murdered and dead body also must have had been recovered

and merely on the basis of suspicion expressed by the mother

and other relatives of the deceased against Raj Kumar he was

implicated by the police simply to solve the murder case. PW-11

had admitted in cross-examination that Section 302 IPC was

mentioned in these documents but he also clarified that he had

written that only after the accused had made disclosure

statements. So, that clarification given by the investigating

officer, which we have no reason to suspect, removes all doubts

and so it cannot be accepted that evidence of PW-11 is doubtful

for the said reason put forth by the counsel for accused Raj

Kumar. As far as his statement that the dead body of the

deceased was recovered pursuant to the disclosure statement of

Raj Kumar and on his pointing out is concerned we have no

reason to reject the same. He had no axe to grind against the

accused. His evidence is fully reliable and cannot be rejected

since he was a police officer, as was also the submission of the

learned counsel for the accused.

17. The evidence of PW-11 is corroborated by the other

witnesses to the making of the disclosure statements and

recovery of the dead body pursuant thereto. Those witnesses

are PW-4 Mukesh, PW-6 HC Vijay Kumar, PW-8 Ct. Mahender

Singh, PW-9 Ct. Kanwar Singh, PW-12 HC Parveen Singh and PW-

15 Insp. Baljeet Singh. None of these witnesses also could be

shattered in their cross-examination. In our view, as far as

accused Raj Kumar is concerned it stands established from the

evidence of these witnesses of recovery of the dead body that

the dead body of the deceased child Himanshu was recovered

pursuant to the disclosure statement made by him while in police

custody. However, as far as accused Mahipal is concerned he

cannot be fastened with the liability of recovery of the dead body

of the deceased child by invoking Section 27 of the Evidence Act.

We have already noticed that PW-11 SI Shiv Singh has deposed

that when the police team had reached Singhu Border on their

return to Delhi from the village of the two accused they had

spotted accused Raj Kumar standing at the border and he was

identified by PW-4 Mukesh. Thereafter, he was interrogated by

him and then Raj Kumar had made a disclosure statement and

further that the dead body of the deceased was recovered from a

place near a dry pond of Senior Secondary School in Shahbad

Mohammadpur. From this statement of SI Shiv Singh it is

apparent that accused Raj Kumar had already given the

information to SI Shiv Singh regarding the place where the dead

body of the child had been thrown by him. However, none of the

witnesses of recovery deposed that Mahipal had also stated that

he could get recovered the dead body of the deceased

recovered or that he had informed the police about the place

where the dead body had been thrown. Therefore, the

prosecution case that the dead body of the deceased was

recovered at the instance of accused Mahipal also becomes

doubtful. Here we may also refer to a decision of a the Supreme

Court in " Bakshish Singh vs The State of Punjab", AIR 1971

SC 2016, cited by the learned counsel for the accused wherein it

was held mere recovery of dead body of the deceased at the

instance on accused is not a conclusive circumstance. We may

also refer to a judgment of a Division Bench of this Court in the

case of " Vijay Kumar vs The State", Crl.Appeal No.654/2005,

decided on 22/02/08. In that case also the dead body of the

deceased was allegedly recovered at the instance of three

accused persons pursuant to their respective disclosure

statements. This court held that the evidence of joint disclosure

statements by different accused was not inadmissible in view of

the decision of the Supreme Court in the Parliament Attack

case(supra), which was cited by Mr. Dudeja, but as far as one of

the three convicts was concerned since there was no other

evidence against him except the evidence of making of the

disclosure statement by him and recovery of the dead body

pursuant thereto also he could not be convicted for the offence of

murder. In the present case also, thus, even if evidence of

recovery of the dead body of the deceased were to be

considered to be credible, though we do not consider it to be so,

Mahipal‟s conviction on this sole circumstance could not be

sustained. The fact that nobody had expressed any suspicion

against accused Mahipal and that admittedly he had no motive to

kidnap and murder Himanshu also persuades us not to give any

credence to the prosecution allegation that the dead body of the

deceased child was recovered at his instance also. Learned

counsel for this accused was right in his submission that he has

been roped in the present case only because of the information

which police got that Mahipal happened to be a friend of Raj

Kumar and both were not available at their respective homes on

24-07-2003 when the police had gone there in search of accused

Raj Kumar only.

18. We are, therefore, of the view that as far as accused-

appellant Raj Kumar is concerned the above-noted

circumstances which we have found to have been established

cogently and beyond reasonable doubt are sufficient to sustain

his conviction. Those circumstances do form a chain which is so

strong and so complete that no other conclusion can be drawn

from those circumstances except that accused Raj Kumar is guilty

of the offences for which he stands convicted. So, the appeal

filed by accused Raj Kumar (being Crl.A. No. 56/09) being

devoid of any merit is liable to the dismissed. However,

accused-appellant Mahipal is entitled to be acquitted by giving

him the benefit of doubt and his appeal(being Crl.A. No.221/09)

deserves to be allowed.

19. Resultantly, we dismiss Crl.A.56/2009 filed by accused Raj

Kumar while Crl.A.221/2009 is allowed and consequently

accused Mahipal stands acquitted of all the charges for which he

had been tried and held guilty by the trial Court. He is stated to

be lodged in jail and undergoing the sentence awarded by the

trial court. As a result of acquittal, he is directed to be released

from there forthwith unless he is required to be detained in

custody in any other case.

P.K. BHASIN, J

BADAR DURREZ AHMED,J APRIL 20, 2009 nk