Narender @ Nanda vs State
2011 Latest Caselaw 5821 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON: 15.11.2011
                           PRONOUNCED ON: 30.11.2011

+                   CRL. APPEAL No. 96/1998

NARENDER @ NANDA                        ..... Appellant
                 Through: Ms. Meenakshi Lekhi with Ms. Srishti
                          Saxena, Advocates.
            Versus
STATE                                    ..... Respondent

Through: Mr. Sanjay Lao, APP.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT MS. JUSTICE PRATIBHA RANI %

MS. JUSTICE PRATIBHA RANI

1. This appeal is directed against the judgment dated 8th August, 1997 and order on sentence dated 12th August, 1997 whereby the appellant was convicted for the offence punishable under Sections 302/365/201 IPC. He was convicted and sentenced under Section 302 IPC to undergo rigorous imprisonment for life and to pay fine of ` 1000/- and in default, to undergo rigorous imprisonment for one month for committing the murder of a 7 month old female child (hereinafter referred to as 'Baby Aarti', the deceased). The appellant was also convicted and sentenced under Section 365 IPC to undergo rigorous imprisonment for five years and to pay fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for 15 days. The appellant was further convicted and sentenced under Section 201 IPC to undergo rigorous imprisonment for 5 years and to

pay fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for 15 days.

2. The case of the prosecution is that Narender Kumar, the Appellant before us, was a close relation i.e. nephew of the father of the deceased. He took away the infant child Aarti from the custody of her mother on the morning of 1st May, 1993 saying that she could finish the cooking work and in the meantime, he would take the child out to her maternal uncle's house who was also residing nearby. When the Appellant snatched the life of this baby girl who was barely 7 months old, he not only killed the child but also the trust the family reposed in close relations while allowing them to take away their child for outing etc. Following Indian tradition of 'Atithi Devo Bhava', he was honoured as a guest. The complainant on the night of 30th April, 1993 not only provided him shelter but also served him with dinner and breakfast on the morning of 1st May, 1993 little realizing that the 'guest' was taking away their child forever and they would not be able to see her thereafter.

3. Succinctly stated the case of the prosecution, the Appellant Narender was related as nephew to Shri Prem Chand (PW-8), father of the deceased. On 30th April, 1993, Narender visted their house during the night and after taking dinner, slept there. Next morning i.e. on 1st May, 1993, while Prem Chand PW-8 left for his work, after serving breakfast to the Appellant, Smt. Kamlesh PW-4, mother of the deceased Aarti started cooking with the deceased by her side. The Appellant offered to take the deceased to nearby house of PW-3 Shri Chander Parkash, brother of PW-4 Kamlesh so that PW- 4 Kamlesh could finish her cooking work in the meantime. The Appellant did not return thereafter.

4. PW-8 Prem Chand, father of the deceased Aarti returned home in the evening. On coming to know that the Appellant had not returned along with the child since morning, he made every effort to search for them but in vain. Even visit to the house of the Appellant at Jehangirabad, District Buland Sahar, U.P. proved futile as he was found missing from there also and the parents of the child were made to leave with the assurance that the Appellant would return with the child, but the wait turned out to be never ending. Ultimately, on 3rd May, 1993, the Complainant Smt. Kamlesh reported the matter to the police vide Ex. PW4/A.

5. The contents of the complaint Ex. PW4/A disclose about visit of the Appellant to their house on the night of 30th April, 1993 at about 8.00 PM and his taking dinner and staying there overnight and then after taking breakfast on the morning of 1st May, 1993, leaving alongwith the deceased Aarti on the pretext that he was going to see her maternal uncle PW-3 Chander Parkash, brother of the complainant. When he failed to return, she visited the house of Chander Parkash and came to know that the Appellant visited him just for five minutes. She further mentioned that they searched for him but he and the child could not be found. The description of the child in Ex. PW4/A was given as under:-

Age - 7 months old; Complexion - Fair; Body - Slim; Face - Round; and wearing sleeveless baniyan and two silver kadas with ghungroo in both the hands.

6. As PW-4 Kamlesh requested for legal action against the Appellant, FIR No. 169/93 under Section 363 IPC was recorded at P.S. Nand Nagri.

7. While this was happening in Delhi, another part of the story was being unfolded at Secunderabad, U.P. On the early morning of 2nd May, 1993,

PW-1 Dinesh Chand, Pardhan of Village Nizampur was informed by the boys who had gone for grazing cattle, that a dead body of a female child was lying under a keeker tree. He visited the spot and saw that a dead body of a baby girl aged 5-6 months old was lying there. He informed P.S. Secunderabad and accompanied the police party to the spot, police removed the dead body of that 'unknown child', and got photographed at the mortuary from PW-7 Yogesh Kumar, the photographer. After the post mortem was conducted on the body of the unknown female child, it was buried in the nearby place.

8. On 5th May, 1993, PW-8 Prem Chand, father of the deceased informed P.S. Nand Nagri about the presence of the Appellant at Durga Puri Chowk. He accompanied the police party and the Appellant was apprehended. The Appellant was interrogated and taken on two days' police remand. He made a disclosure statement Ex. PW-4/B and from the shop of PW-6 Subhash Chand Sharma, the police got recovered two silver kadas of deceased Aarti which were sold by him to PW-6 for ` 38 only and identified by PW-8 to be of the deceased. Thereafter, he led the police party to Secunderabad to an area under a keeker tree but the dead body was not found there. Then the police party visited P.S. Secunderabad where it was revealed that on the morning of 2nd May, 1993, after the information being received from PW-1 Dinesh Chand, the Pardhan of the Village Nizampur, the dead body of an infant child was recovered which was covered with a torn black coloured pant. The dead body was got photographed and after conducting post mortem, last rites were performed. After seeing the photograph, PW-8 Prem Chand identified the dead body to be that of his daughter Aarti. He also identified the 'baniyan' which was seized by P.S. Secunderabad. The silver

kadas Ex. P-1 and Ex. P-2 recovered from PW6 at the instance of the appellant were also identified by him to be that of his daughter Aarti.

9. After completing the investigation, the Appellant was sent to face trial for committing the aforesaid offences.

10. During trial, the Appellant pleaded not guilty of the charges. Prosecution examined 14 witnesses to prove the guilt of the Appellant. He was also examined under Section 313 Cr. PC wherein it was a case of simpliciter denial and false implication. The reason given by him was that his father got the complainant married to Prem Chand PW-8 and she was not happy with her marriage with PW-8. So, she has implicated him falsely in the case.

11. On the basis of 'last seen' and circumstantial evidence adduced by the prosecution, recovery of kadas of Aarti at the behest of the Appellant and discovery of the fact where the dead body was thrown, which was recovered by P.S. Secunderabad, the learned Trial Court arrived at the conclusion that the chain was complete and it pointed only towards the guilt of the Appellant. Accordingly, the Appellant was convicted for committing the offences punishable under Section 302, 365 and 201 IPC and sentenced to the period stated above.

12. The case is based on 'last seen' and circumstantial evidence with emphasis on absence of motive for the Appellant to commit murder of baby Aarti. Before dealing with the contentions of the Appellant, it would be advantageous to refer in brief, the testimonies of the material witnesses and thereafter, to consider whether the absence of motive itself is sufficient to acquit the Appellant.

13. PW-4 Smt. Kamlesh, the complainant and mother of the deceased Aarti has stated about the relationship of the Appellant with her husband as well as the visit of the Appellant to their house on the night of 30 th April, 1993. She further stated that the Appellant had his dinner on that night and slept there. On the next morning, he also had a breakfast at their house and when she was cooking food at about 8.30 AM, the Appellant took away her daughter Aarti to visit her brother Chander Parkash PW-3, who was residing nearby, in order to give her time to finish cooking work in the meantime. Her statement is also to the effect that as the Appellant failed to return thereafter, she visited her brother's house. She came to know that the Appellant visited PW-3's house along with her daughter Aarti and after staying there for some time, left. She informed the matter to her husband, when he returned from his work in the evening and thereafter, the search for Appellant and baby Aarti began.

14. The statement of PW-8 Prem Chand, father of the deceased Aarti is also on the identical lines. He has also added that on coming to know in the evening that the Appellant and his daughter were not traceable, he made efforts to search at his own level at various places but on finding no clue, the matter was reported to the police on 3rd May, 1993 by his wife. Even the search at the native place of the Appellant revealed that he was missing from there also for many days and finding no alternative, they continued making efforts to search the Appellant with other relations and on 5th May, 1993, on getting the information about his presence at Durga Puri Chowk, the police was informed. The Appellant was apprehended and his disclosure statement was recorded. Pursuant to the disclosure statement made by the Appellant, he got recovered two silver kadas i.e. Ex. P-1 and P-2 from PW-6 Subhash

Chand Sharma which PW-8 Prem Chand identified to be of her daughter which were made by him for his daughter Aarti. PW-8 Prem Chand also stated that at the instance of the Appellant, the police party was led to the place in Secunderabad, under keeker tree, where the dead body was said to have been thrown by the Appellant and ultimately, upon visiting P.S. Secunderabad, they discovered the fact that a dead body of an unknown child aged 6-7 months old was recovered by U.P. Police on 2nd May, 1993; the photographs of the dead body were taken in the mortuary; the post mortem was conducted on the body of the deceased Aarti; and thereafter, the dead body was buried in a nearby place. PW-8 Prem Chand was also shown one photograph taken at the mortuary and one sleeveless baniyan Ex. P-3 which was worn by the deceased at the time of recovery of her dead body and the same were seized by the police.

15. PW-5 Dr. R.C. Saxena, Medical Officer in Police Hospital, Buland Shahar, who conducted post mortem has deposed that on 2nd May, 1993, he conducted post mortem over an unknown female child body brought by Constable Hari Singh (PW-10) and Constable Ram Snehi (PW-2) and found following injuries:-

(a) Contusion of 4Cm X 2 Cm on the right side cheek in the middle; and

(b) Traumatic swelling of 3Cm X 2 Cm over right side head in the middle.

He further deposed that injury no. 2 was sufficient to cause death in ordinary course of nature.

16. PW-7 Yogesh Kumar is the photographer who testified that on 2nd May, 1993, he was called by the police at mortuary for taking photographs of the child/dead body. The photograph taken by him is Ex. PW2/A and its negative is Ex. PW7/B.

17. PW-6 Subhash Chand Sharma has deposed that about 3-4 years back, (he was examined on 9th July, 1996) the accused present in court came to his shop with a child aged 7-8 months old in his lap and sold two silver kadas for ` 38 only, claiming that his child was ill and wanted to sell the said ornaments for buying medicines. He further deposed that 3-4 days thereafter, the police along with the accused/Appellant came to his shop and he was asked to produce the two silver kadas which the Appellant had sold to him. He produced the same Ex. P-1 and P-2 and the same were seized by the police Ex. PW6/A.

18. PW-14 Dinesh Keshav, the Investigating Officer stated in detail about the investigation being carried on by him as well as recovery of silver kadas effected at the instance of the Appellant from the shop of PW-6 Subhash Chand Sharma. He also stated about the discovery of the fact as to where the dead body was thrown by the Appellant, which ultimately was found to have been recovered by the P.S. Secunderabad on 2nd May, 1993.

19. On behalf of the Appellant, Ms. Meenakshi Lekhi, Advocate has submitted that it is a case based on 'last seen' and circumstantial evidence but the chain is not complete to prove the guilt of the Appellant beyond reasonable doubt. She has contended that there are material discrepancies in the testimonies of the prosecution witnesses regarding the age of the child, what she was wearing and how the Appellant was apprehended. She has laid great emphasis on effect of delay in lodging the FIR especially when as per PW-8 Prem Chand, kachi report was also lodged. As that kachi report should have been converted into FIR, there was no need of lodging fresh report by the complainant PW-4 Kamlesh about missing/kidnapping of the child.

20. Referring to unexplained delay in lodging the FIR, it was urged on behalf of the Appellant that no mother could have waited for 3 days to lodge the report about missing of her 7 months old child. Not only that, even identification of the body is doubtful as it was not exhumed for the purpose of identification. It is just not possible to identify such a small child from the photograph only as all children of that age look alike. No DNA Test was conducted to ascertain the identity of the dead body and the manner in which the Appellant has been shown to have been arrested also creates serious doubt in the case of prosecution.

21. It has further been submitted that the Appellant has been falsely implicated in this case due to the enmity with the complainant and post mortem report has also not been duly proved, so, even the cause of death is not ascertained.

22. Pointing out to the place from where the dead body was found and recovered at the behest of the Appellant, it has been submitted by the counsel for the Appellant that all the prosecution witnesses are interested witnesses. The silver kadas were never got identified in any judicial test identification parade. So, even the recovery of silver kadas and the fact that the same belonged to the deceased Aarti, is highly doubtful.

23. Learned counsel for the Appellant vehemently urged that in this case, there is absolutely no motive proved for committing the murder of the child by the Appellant. The silver kadas as per prosecution, were sold for ` 38 only and this amount would not have been sufficient enough to travel upto Secunderabad, U.P. and was not such a big amount which could have prompted the Appellant to commit murder of a small child aged about 6-7 months old who was neither in a position to speak nor identify. Moreover,

lack of motive in a case based on circumstantial evidence is sufficient to give benefit of doubt and acquit the Appellant.

24. On behalf of the State, Mr. Sanjay Lao, learned APP submitted that the disclosure statement made by the Appellant led the police party to the place in U.P. where dead body was thrown by the Appellant and this fact was never known to Delhi Police. It was only during further investigation from local police station that recovery of dead body from that very place became known to the Investigating Officer and father of the deceased. It has further been submitted that no Test Identification Parade was required to be conducted in this case as silver kadas were got recovered in the presence of PW-8 Prem Chand, father of the deceased and he identified the same as they were made by him for his daughter. It has also been submitted that lack of motive in itself is not sufficient to exonerate the Appellant as what transpired in the mind of the Appellant while committing the murder of the infant child could be known to him only and the circumstances proved in this case lead to only one hypothesis, that is, guilt of the Appellant.

25. The Courts insist on spontaneous recording of the FIR so as to dispel the possibility of introduction of any coloured version, embellishment or introduction of a false witness or an accused.

26. In Balram Singh & Anr. v. State of Punjab, 2003 (11) SCC 286, it was observed by the Supreme Court that if the ocular evidence adduced by the prosecution is worthy of acceptance the element of delay in registering the FIR/complaint or sending the same to the jurisdictional Magistrate by itself would not in any manner weaken the prosecution case.

27. There is a delay of three days in lodging of FIR against the Appellant. It is borne from the testimony of PW-4 and PW-8 that when efforts to search

the Appellant and their daughter proved futile, at that time, he was named to be the person who took away the child, what the child was wearing at that time, was also mentioned along with her description. It is pertinent to mention here that at the time the FIR was lodged by PW-4 Kamlesh, she was not aware that her daughter was dead or that the dead body had already been recovered by P.S. Secunderabad, U.P. The concern of PW-4 and PW-8 was not only for their daughter but also for the Appellant. So, the plausible explanation for delay has come that they were searching for them at their own level.

28. Various discrepancies pointed out by learned counsel for the Appellant are insignificant in view of the nature of the case where a close relation had taken away the child and failed to return. So, the concern was not only their child but as well as the Appellant and that is why, efforts were made to search for them at their level and only on finding that he was absconding from his native place, the FIR was lodged. So far as kachi report is concerned, PW-4 Kamlesh has specifically stated that she did not lodge any report and it appears that they might have visited the local police to inform about the missing of the Appellant and their daughter which intimation might have been taken/understood as kachi report by PW-8. It is a matter of record that prior to 3rd May, 1993, neither any missing report nor any FIR was lodged in writing. In the circumstance, the delay in registration of FIR has no negative effect on prosecution case.

29. So far as discrepancies pointed out by learned counsel for the Appellants are concerned, they are not on material aspects and do not go to the root of the case. Such discrepancies are bound to occur due to lapse of time, capacity to recapitulate the events. In Krishna Mochi vs. State of

Bihar, (2002) 6 SCC 81, the Supreme Court deprecated the practice to pass orders of acquittal on the basis of minor discrepancies and contradictions.

30. Here, in the case in hand, the testimony of PW-4 Kamlesh proved that the Appellant took away her daughter on the pretext of going to visit her brother Chander Parkash PW-3 who was residing nearby. This fact is corroborated from the statement of Chander Parkash PW-3. On the basis of disclosure statement Ex. PW4/B, not only two silver kadas Ex. P-1 and Ex. P-2 were recovered but also PW-6 Subhash Chand Sharma proved the visit of the Appellant to his shop along with a 6-7 months old female child, whose kadas were sold by the Appellant stating that he needed money to buy medicines for the child. Recovery of kadas Ex. P-1 and P-2 at the instance of the Appellant from the shop of PW-6 is a very strong circumstance against him. PW-6 Subhash Chand Sharma, silver smith/jeweller has lastly seen the Appellant along with the deceased at his shop about 9.00 AM on 1 st May, 1993.

31. Another circumstance against the Appellant is that he led the Investigating Officer to the place where the dead body was thrown by him under the keeker tree at Secunderabad, U.P. after covering it with a torn black coloured pant lying nearby. Till that time, the police officers of P.S. Secunderabad were not even aware of registration of any FIR in respect of the missing/kidnapping of baby Aarti. They were conducting their proceedings independently and even post mortem was got conducted on the body of an 'unknown female child' after taking its photographs which have been identified as that of baby Aarti only when the Appellant led the police party to the place where dead body was thrown by him.

32. The sequence/chain of events could be completed only after Delhi Police was led by the Appellant to Secunderabad, U.P. which ultimately led to the discovery of the fact of a dead body of an infant aged 6-7 months old, wearing sleeveless baniyan, being thrown and covered with torn black coloured pant.

33. The facts mentioned in the complaint Ex. PW4/A as to what the child was wearing at the time she was taken away by the Appellant stood corroborated from the recovery of kadas Ex. P-1 and P-2; and baniyan Ex. P-

3. The disclosure statement made by the Appellant Ex. PW4/B that the dead body was covered by him with a torn black coloured pant, stood corroborated from the discovery of fact that a dead body covered with a black coloured torn pant was recovered by P.S. Secunderabad, U.P. after being informed by PW-1 Dinesh Chand, Pardhan of Village Nizampur.

34. The contention of learned counsel for the Appellant that due to enmity, he has been falsely implicated in this case is liable to be rejected as had it been so, neither the Appellant would have visited the house of PW-4 and PW-8 nor he had been welcomed by them. Moreover, he would not have been permitted to stay in there in the night of 30 th April, 1993 and he would not have been allowed to take away their child.

35. Although in his statement under Section 313 Cr. PC, the Appellant has preferred to enter his plea of simpliciter denial but the impugned judgment reveals that it was urged before the learned Trial Court that it was not a case of murder but of accidental fall of the child from the hands of the Appellant, thus, bringing the case within the ambit of Section 304 IPC. In that circumstance, it was not open for the Appellant to urge before this court that neither he had visited the house of PW-4 and PW-8 nor taken away their

child and also disputing the factum of recovery of dead body of the child under keeker tree, two silver kadas Ex. P-1 and Ex. P-2 as well as discovery of fact where the dead body was thrown after covering it with a torn black coloured pant.

36. Further, it suggests that the submission of the Appellant before the Trial Court was not to dispute the prosecution case in its entirety but to bring it within the scope of Exception IV to Section 300 IPC. The different and contradictory versions given in statement under Section 313 Cr.P.C., while making submissions before the Court at final stage, provide an additional link in the chain of circumstances against the appellant. Reliance can be placed on Anthony D'Souza Vs. State of Karnataka (2003) 1 SCC 259.

37. It is a well established legal principle that in cases based on circumstantial evidence, where a false explanation is offered by the accused during his examination under Section 313 Cr. PC. in respect of the facts duly established by the prosecution, the said false denial could supply a missing link in the chain of circumstances appearing against him. However, the Court has to always first see that the circumstances have been proved using well established principles and have been fairly put to the accused under Section 313 Cr.P.C. This in turn would mean that the circumstances so proved beyond reasonable doubt must be inconsistent with the accused's innocence and must also show that he alone was the author of the crime.

38. The factum of taking away of baby Aarti by the Appellant stood proved from the statement of PW-4 Kamlesh and the child was seen alive in the lap of the Appellant stood proved from the testimony of PW-3 Chander Parkash and PW-6 Subhash Chand Sharma to whom the Appellant sold silver kadas for ` 38 only stating that he had to buy medicines for the child.

39. The Appellant has failed to explain what happened to the child thereafter and how the dead body of the child could be recovered from Secunderabad.

40. His simple denial of the entire case in itself is also another circumstance to confirm the hypothesis that it was the Appellant only who authored this crime i.e. murder of baby Aarti.

41. The post mortem in this case was conducted on 2nd May, 1993 at about 4.00 AM and the approximate time of death has been about 1 and a half day back and the cause of death being traumatic swelling of 3Cm X 2 Cm over right side head in the middle. The deceased Aarti was last seen alive in the lap of appellant at about 9.00 AM on 1st May, 1993 by PW-6 and thereafter, only her dead body was recovered under keeker tree on the information given by PW-1 Dinesh Chand, Pardhan of Village Nizampur by P.S. Secunderabad. The Delhi Police, PW-4 and PW-8 were not aware till that time about the recovery of dead body of baby Aarti. The factum of recovery of the dead body of baby Aarti by P.S. Secunderabad from the same place as disclosed by the Appellant is another circumstance to prove the guilt of the Appellant as it was possible only if thrown by him. In the case reported at Mohibur Rahman vs. State of Assam (2002) 6 SCC 715, the Supreme Court observed that there may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability of the homicide.

42. It is well settled that when a case rests upon circumstantial evidence, the circumstances must be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343, the Supreme Court held:-

"In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

43. In Sharad Birdhichand Sarda v. State of Maharashtra‟, AIR 1984 SC 1622, the three Judge Bench of the Supreme Court relying on Hanumant Govind Nargundkar (supra) set out the conditions which must be fulfilled before a case against the accused can be said to be fully established. The conditions are :-

"1. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established,

2. All the facts so established should be consistent only with the hypothesis of the guilt of the accused.

3. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

4. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and

5. It must be such as to show that within all human probability the act must have been done by the accused."

44. In the latest report of the Supreme Court in G. Parshwanath v. State of Karnataka, 2010 (5) SCC 593; it was held that where the proved circumstance completes the chain of evidence, it cannot be said that in the absence of motive, the other circumstances are of no consequence.

45. It is true that the prosecution has not been able to establish any motive except an ill feeling towards each other i.e. between the Appellants on the one hand and PWs 4 on the other was claimed by the appellant. In Sahadevan @ Sagadevan v. State rep. by Inspector of Police, 2003 (1) SCC 534, the Supreme Court held that in case of circumstantial evidence if the circumstances relied upon by the prosecution are proved beyond doubt then the absence of motive would not hamper a conviction.

46. After considering the testimony of PW-4 Kamlesh, we find that she being mother of deceased Aarti, had no reason to falsely implicate a close relation i.e. nephew of her husband by letting the real culprit go scot-free. Here it is pertinent to mention that PW-4 must have got married to PW-8 Prem Chand many years ago, as at the time of occurrence, she had six children including the deceased Aarti. So, the motive attributed by the Appellant while making statement under Section 313 Cr. PC that his father got the complainant married to PW-8 and she was not happy with the marriage, so, she falsely implicated him in this case, has no legs to stand.

47. It is also noteworthy that no such suggestion was given to PW-4 or PW-8 during cross-examination and there is absolutely nothing on record to indicate that she exercised any grudge against the Appellant as his father got her marriage arranged with PW-8.

48. Once the motive attributed to the complainant and her husband for false implication is found to be non-existent, we have to consider whether absence of motive itself is sufficient to give benefit of doubt to the Appellant to acquit him.

49. In a recent judgment reported at Bipin Kumar Mondal vs. State of West Bengal (2010) 12 SCC 91, it was held that motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.

50. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. (Ref.: Ujjagar Singh Vs. State of Punjab (2007) 13 SCC

90).

51. In view of the above, inability of prosecution to prove the motive or non-existence of motive for the Appellant to commit the murder of an infant child is of no significance. We may hasten to add that there is statement of PW-4 regarding taking away of deceased by the Appellant and statement of PW-1 Dinesh Chand, Pardhan of Village Nizampur; PW-2 Constable Ram Sanehi, P.S. Secunderabad; PW-10 Constable Hari Singh, P.S. Secunderabad; PW-12 Constable Mannu Singh, P.S. Secunderabad; and PW-

13 Ramesh Chand, D.D. Writer, P.S. Secunderabad regarding recovery of her dead body from under the keeker tree in Secunderabad, U.P. We have also the statements of PW-5 Dr. R.C. Saxena, Police Hospital Bulandshahar, who conducted post mortem on the dead body of an unknown female child; PW-7 Yogesh Kumar, the photographer; and PW-6 Subhash Chand Sharma to whom the silver kadas were sold by the Appellant for ` 38 only, with such overwhelming evidence of last seen and recovery, motive pales into insignificant.

52. As per the prosecution, FIR has been lodged after three days on 3 rd May, 1993 and the Appellant has been apprehended on 5 th May, 1993. It has been submitted by the Appellant that he was surrendered by his father before the police on 2nd May, 1993. It is a matter of record that on 2nd May, 1993, no case was registered against the Appellant and police was not even aware of his being involved in the case of murder, so where was the occasion for his father to surrender him before the police. It is not even disclosed in which P.S/case he was made to surrender by his father and what happened thereafter.

53. The circumstances brought on record by the prosecution and proved beyond reasonable doubt lead to only one hypothesis that is the guilt of the Appellant. All the circumstances are cogently and firmly established by all the public witnesses and police officials not only from Delhi but also from U.P. who were independently working i.e. Delhi Police was investigating the kidnapping case and the U.P. Police was initiating proceedings on recovery of a dead body of an unknown female child. When the Appellant himself led the Investigating Officer and PW-8 Prem Chand to the place where the dead

body of baby Aarti was thrown then the entire sequence of events could be completed/connected and recovery effected thereupon.

54. In view of above discussion, we are convinced that all the facts and circumstances established by prosecution are consistent only with the guilt of the Appellant for the offence punishable under Section 302 IPC. To that extent, there is no infirmity in the impugned order.

55. Appellant has also been convicted under Sections 365 and 201 IPC. The Appellant has taken the child from her mother and at no point of time, the deceased was secretly or wrongfully confined so as to satisfy the ingredients of Section 365 IPC. There is no material available on record to convict him under Section 201 IPC as he himself was the author of crime i.e. murder of the child and throwing the dead body in an open place which could be noticed by passerby. Hence, conviction of the Appellant under Sections 365 and 201 IPC and sentence awarded thereunder is liable to be set aside.

56. Resultantly, the conviction and sentence awarded to the Appellant for commission of offence under Section 302 IPC is confirmed. The conviction and sentence for the offences punishable under Sections 365 and 201 IPC is set aside.

57. The Appeal is disposed of in the above terms.

PRATIBHA RANI (JUDGE)

S. RAVINDRA BHAT (JUDGE) NOVEMBER 30, 2011 sd