Raju vs State
2012 Latest Caselaw 5017 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+              CRIMINAL APPEAL NO.680/2009

%                                Date of decision: 27th August, 2012


       RAJU                                  ..... Appellant
                               Through Ms. Purnima Sethi, Advocate.

                      versus

       STATE                                       ..... Respondent

Through Ms. Richa Kapoor, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG

SANJIV KHANNA, J. (ORAL):

Raju impugns his conviction under Sections 302 and 364 of the

Indian Penal Code, 1860 (IPC) vide judgment dated 2 nd May, 2009.

By order dated 4th May, 2009, the appellant has been sentenced to

rigorous imprisonment for a term of 10 years for the offence under

Section 364 IPC and fine of Rs.500/- and in default thereof, to undergo

simple imprisonment of one month. For the offence under Section 302

IPC, the appellant has been sentenced to undergo imprisonment for life

and to pay fine of Rs.500/- and in default of payment of fine, simple

imprisonment for one month.

2. As far as homicidal death of Bablu is concerned, the same stands

proved by the statement of PW-9, Dr. Arvind Kumar, Senior Resident,

Department of Forensic Medicine, AIIMS, New Delhi. He has proved

on record the postmortem report given by Dr. Prashant Kulshrestha and

Dr. Varun Dixit. As per the postmortem report Ex.PW 9/A, the

deceased had sustained the following injuries:-

"1. Dark reddish brown irregular, near to oval shape abrasion mark of size 1×1.5 cm over angle of left mandible.

2. 1×1 cm abrasion of same nature placed about 4 cm below and inwards to the first abrasion mentioned on the left side.

3. 1×2.5 cms sized abrasion of same nature on upper part of neck on right side placed about 3 cms from the mid line.

4. Neck injury- on cut section maggots were seen inside and in the areas sowed no clear distinction as regard to subcutaneous and muscular place. The area had reddish pink hue, though no frank blood or injuries to the muscles be appreciated because of being eaten by maggots and in continuity the subcutaneous tissues and the muscle of chest wall had pale green dis coloration.

3. Body was in a highly decomposed stage having foul smell,

maggots over the eyes, mouth, armpit etc. were present. Liquid blood

could not be recovered because of decomposition. Cause of death, as

per the postmortem report, was asphyxia as a result of manual

strangulation.

4. In the death report-unnatural death by violence, Ex.PW 11/B, it

is stated that dead body of a small boy aged 10 years called Bablu was

recovered from Wild Life Santury, Satbani. He was wearing blue

check shirt and greyish nicker, which were rotten due to decomposition

of the dead body. The lower limbs and upper limbs were decomposed

and appeared to have been eaten by animals. Statement made by PW-

11, Head Constable Shamim Ahmad to this extent remained

uncontroverted and unchallenged.

5. Learned counsel appearing for the appellant, however,

submitted that DNA test of the said body was not undertaken and,

therefore, it cannot be said certainly that the body was of Bablu. The

second contention raised is with regard to involvement of the appellant

in the commission of the said offence. The said contentions will be

examined when we consider and evaluate the evidence produced and

relied upon by the prosecution. The present case is one of

circumstantial evidence as there is no eye witness.

6. PW-3, Shobha Ram is the father of the deceased child Bablu. He

has stated that he had made a complaint to the police on 29th October,

2001, Ex.PW 4/A, regarding his missing child Bablu. In the said

complaint which was made at 9.30 A.M., it was stated that his son

Bablu aged 10 years about 4 feet in height was missing from 4 p.m.

since the evening before. They had searched for him but could not

locate him. In the statement in the court, PW-3 had stated that he

suspected involvement of Raju. One Yogender had informed him that

he had seen his son Bablu with the appellant-Raju and both had gone to

pluck palm (Ber) in the jungle. He had further stated that on Diwali in

2001, the appellant-Raju had visited his house where he had

misbehaved and teased his wife and threatened them. When Bablu did

not return, he went and spoke to the owner of the farm house, where he

was working as a Chowkidar, and with him reported the matter to the

police. Raju was interrogated by the police and he made a disclosure

statement, Ex.PW 1/A. PW-3, Shobha Ram had put his thumb

impression on the disclosure statement at point X. After the disclosure

statement, on the pointing out of the appellant-Raju, dead body of

Bablu was recovered from the jungle. Investigating Officer had

prepared pointing out memo of the spot and of the way (Ex. PW 1/C

and D). PW-3 had put his thump impression at point X. He identified

the dead body as that of his son Bablu in his statement, Ex.PW 3/B. He

identified Raju in the court and stated that he had put his thumb

impression at point X on the personal search memo of Raju, Ex.PW

3/A. In his cross-examination PW-3 had stated that he had come to

know about kidnapping of his son next day and Yoginder (sic.

Yogender) had told him that his son was taken away by Raju.

Yoginder was a Chowkidar in one of the farm houses near his

residence. He was illiterate and put his thumb impression wherever

required. Some police officials,( PW-6) Ranjeet Singh and his

employer Sindhi Sahib (PW-1) were with him when Raju was taken

and participated in the recovery proceedings. Raju was residing near

to his residential house at his native village.

7. PW-1, Tejender Singh is the employer of PW-3, Shobha Ram

and owner of the farm house. He has stated that PW-3, Shobha Ram

was working a gardener in his farm house. On the day of incident, he

had seen Raju with the son of his gardener, PW-3. At about 8.00/9.00

p.m. when he was going back, his gardener told him that his son was

missing and could not be traced out. He had, then, told PW-3 to wait

for his child as he might be watching television in the neighbourhood.

On the next day at about 8.00/9.00 a.m., PW-3 informed him on phone

that his son could not be traced in the neigbourhood farm houses and

he had called him for help. He reached his farm house at about

8.00/9.00 a.m. and met Shobha Ram and other gardeners of

neighboring farm houses. One of the gardeners had stated that he had

seen the appellant-Raju with the child of Shobha Ram in the Palm

(Ber) bushes and they were plucking Palm (Ber). After 2-3 hours,

Raju returned alone and the child was not seen with him. PW-1,

Tejender Singh asked PW-3, Shobha Ram to make inquiries from Raju

regarding his child. If the child was not found, then they would lodge

a complaint with the police. On the next day they lodged a complaint

with the police and the police reached the farm house to trace Raju, but

Raju was missing from the date of incident. On the next day, police

apprehended Raju. PW-1 was called to the police station where he

reached along with PW-3, Shobha Ram, 2-3 other gardeners and

Sarpanch Ranbir Singh (PW-6). Police conducted proceedings in their

presence and proceedings were videographed. The appellant made a

disclosure statement Ex.PW 1/A, which was signed by him at point A.

The appellant took the police to the spot where the dead body of the

child in the bushes was recovered. Pointing out memo, Ex.PW 1/C

was signed by him at point A. The route by which the appellant took

the child inside the jungle was also pointed out and the pointing out

memo was marked as Ex. PW 1/D. Dead body of the child was in

decomposed condition. The dead body was identified by him and PW-

3, Shobha Ram. Recovery memo of the dead body was prepared and

marked as Ex.PW 1/E and was signed by him at point A. The appellant

was arrested vide arrest memo Ex. PW1/B, which was signed by him.

In the cross-examination, he stated that he had not accompanied PW-3,

Shobha Ram at the time of lodging of the complaint and he did not

speak to the police officials. He clarified that the word "we" used in

the examination in chief referred to the gardeners or Malis. However,

he was present in the police station when Raju was interrogated on 30 th

October, 2001 and made disclosure statement leading to the recovery

of the dead body.

8. PW-2, Yogender Rishidev was working as a gardener. He had

stated that he knew the appellant, who was working in a workshop near

his farm house. On 28th October, 2001 at about 1.30/2.00 p.m. Raju

was plucking Palm (Ber) along with the son of PW-3, Shobha Ram and

after plucking Palm (Ber), Raju took the child towards the bushes.

After two and a half hours, Raju returned alone from the jungle. Child-

Bablu was not with him. In the cross-examination, he had stated that

Raju was alone when he was going to pluck Palm (Ber). PW-3,

Shobha Ram, father of the child had come to him and had made

inquiries about his child. He told him that he had seen his child with

Raju.

9. PW-6, Ranjeet Singh was then the Sarpanch of the village. He

had stated that on 1st November, 2001 at about 4 p.m., PW-1, Tejender

Singh had informed him that the son of his gardener Shobha Ram was

missing. He had gone to the police station with PW-3 and PW-1 and

one boy, namely, Raju was there. Raju disclosed that he had throttled

to death the son of PW-3, Shobha Ram. He had also stated that he

could identify the place where he had murdered the son of PW-3. He

had led the police, PW-1, PW-3 and PW-6 to the place of occurrence,

where dead body of the child was recovered. The distance was one

and a half kilometer from the farm house and it was located in a thick

forest area. The dead body was decomposed. He was accompanied by

Additional SHO, some police officials, Tejender Singh (PW-1) and

Shobha Ram (PW-3). He had not signed the papers as he was not

having his spectacles with him. He had correctly identified the

photographs marked Ex.PW 6/1-9, which depicted the place where the

body of the child was recovered on the pointing out of the appellant.

In the cross-examination, he had stated that no other public person was

present at the place from where the dead body of the child was

recovered. He denied the suggestion that appellant had not confessed

and pointed out the place from where the dead body was recovered or

that he was deposing on the direction of the police and Tejender Singh

(PW-1).

10. PW-10, Inspector Diwan Chand Sharma has stated that he was

posted as Additional SHO at police station Mehrauli and the appellant-

Raju was produced before him by SI Jitender Kumar, who was the

Investigating Officer. Appellant confessed having committed murder

of the child of PW-1, Shobha Ram. PW-1 Shobha Ram, PW-3

Tejender Singh, PW-6 Ranjit Singh and two constables Satender and

Shamim also reached the police station and in the presence of the said

persons, Raju confessed and thereafter took them to the place from

where the dead body of the child-Bablu was recovered. The appellant

confessed that he had strangulated the child in the Wild Life Sanctuary.

The dead body was decomposed and worms infested. He identified the

photographs marked Ex.PW 6/1-9. He had also identified the video

cassette, which was thereafter marked as PW 10/A. In the cross-

examination he had stated that the jungle in question was substantially

big in size. He denied the suggestion that recovery of body was

already effected by him and the place of incident was in his knowledge

before the recovery of the dead body.

11. PW-11, Head Constable Shamim Ahmad had stated that the

appellant was apprehended for interrogation from Ansal Work Shop,

Sushant Lok, Gurgaon, where he was working. He confessed to the

crime after he was interrogated by PW-10, Diwan Chand Sharma.

PW-1, PW-3 and PW-6 also reached there. The interrogation was

video graphed and disclosure statement marked Ex.PW 1/A, which

bears his signature at point A, was recorded. The entire episode was

video graphed. The dead body was identified by Shobha Ram and

thereafter the same was sent for postmortem. In the cross-examination

he had stated that the place of recovery of dead body was at a distance

of about one kilometer from the wall of Wild Life Sanctuary. The Wild

Life Sanctuary was a big area and he had remained there till 3-4 p.m.

He had denied the suggestion that the police had recovered the dead

body first and thereafter planted the same against the appellant to

strengthen the case. He had also denied the suggestion that the

videography was done only to fill up lacunas.

12. PW-12, Sub Inspector Jitender Kumar had stated that on 31st

October, 2001, the case was marked to him for further investigation.

He had recorded statements of PW-1, PW-2 and PW-3. PW-11,

Constable Shamim Ahmad produced appellant-Raju before him on 1st

November, 2001. Raju was interrogated and made disclosure

statement marked Ex.PW 1/A in the presence of the public witnesses,

which was signed by him at point X. Videography of the disclosure

statement was done by the videographer Brijvir. Dead body was

recovered pursuant to the disclosure statement and was identified by

the witnesses. Thereafter the appellant was arrested. The dead body

was sent to the mortuary of AIIMS and the request for autopsy was

made vide memo Ex. PW 11/A. He proved the endorsement made by

ASI Birsa Oraon on DD No. 6-A, on the basis on which FIR marked

Ex. PW 7/A, was registered. Rukka was also marked as Ex. PW 11/K.

PW-12, SI Jitender Singh was again examined on 22nd August, 2008,

when it was noticed that the CD was not available in the judicial file.

PW-12 had stated that the CD was annexed with the judicial file.

Ahlmad of the court however had stated that the CD was not received

by him but by the Ahlmad of another Judge. The court, however, did

not adjourn the matter for want of CD as the appellant had been on trial

for 7 years and was languishing in jail. PW-12 thereafter was cross-

examined. He had stated that this was the first case when they had

arranged for a videographer. Photographs were also taken. He had

stated that no foot prints or chance prints were taken from the nearby

place where the dead body was recovered. He volunteered and clarified

that it was a jungle and there was no possibility to collect the chance

prints. He stated that he did not ask other public witnesses to join as

no public witnesses were available in the jungle. He admitted that

DNA test was not done.

13. Learned counsel for the appellant has submitted that there are

material and distinct contradictions in the statements of PW-1,

Tejender Singh PW-3, Shobha Ram and PW-6 Ranjit Singh. These

contradictions and other contentions are as under:-

(i) The witnesses have given different depositions with regard to

the colour of the shirt and nicker worn by the child.

(ii) There is discrepancy in the statement of PW-10, PW-11 and

PW-12 on the one hand and PW-1, PW-2 and PW-3 on the other hand

on how and when the appellant was arrested.

(iii) Evidence of PW-1, Tejender Singh regarding statement made by

a gardener that he had seen the appellant with the child of PW-3,

Shobha Ram and Raju had taken the child to the jungle is hearsay and

unbelievable. Name of the gardener was not given by PW-1. PW-1

had also stated that he had seen the appellant with the son of PW-3,

Shobha Ram, but to this extent there is a contradiction.

(iv) Statement of PW-2, Yogender is inherently unbelievable

because he claimed to have seen the entire episode from the window of

his house and he had remained quiet.

(v) PW-3 had tried to impute motive to falsely implicate the

appellant. The prosecution has not been able to establish that the

appellant had committed murder because PW-3 had protested against

misbehavior by the appellant with his wife and had objected.

(vi) Presence of PW-6, Ranjeet Singh is debateable as he had not

signed documents/proceedings either relating to disclosure or recovery.

(vii) There was no reason or cause for the police to videograph the

interrogation, disclosure and recovery. The resort to videography itself

creates a suspicion about the entire prosecution story. The

Videographer Brijvir was not produced and, therefore, the CD could

not have been marked Ex.PW 11/D.

14. We have considered the said contentions, but do not find any

merit in the same. PW-10, 11 and 12 had stated that PW-11 was asked

to search and produce the appellant for interrogation. PW-11 thereafter

went to Ansal Work Shop, Gurgaon and brought the appellant to the

police station for interrogation. It is during the course of interrogation

that the appellant had made the disclosure statement leading the police

party, PW-1, 3 and 6 to the jungle where the dead body of the child

was recovered. There is therefore no material contradiction in the

statement of the said witnesses. The alleged discrepancy as to the

colour of the clothes worn by the deceased is a minor matter or issue

which does not and cannot be regarded as destructive of the case put up

and stated by PW-1, 3, 5 and 6. PW-1, 3 and 6 were examined long

after the incident and they might not have properly recollected the

colour of the clothes worn by the child. Photographs of the child with

the clothes are available and have been exhibited as PW-6/1-9 and

show the colour of the clothes. Statements of PW-1, 3 and 6 are

identical and similar on all material and relevant aspects/facts.

15. Non-examination of the Videographer Constable Brijvir can be

explained as the CD itself could not be located and found on the

judicial file as recorded in the order dated 22nd August, 2008. On the

question of motive, we only record that the motive was stated and

narrated in the disclosure statement. Motive in cases of circumstantial

evidence is an important element as it reflects the cause for

commission of the offence by a particular person. However it is not

mandatory for the prosecution to prove motive in all cases. Even in

cases of circumstantial evidence, guilt or commission of offence by a

particular person can be proved without establishing motive.

16. Regarding non-joining of public witness, we record that PW-6,

Ranjeet Singh was the Pradhan of the village and was a public witness.

PW-1, Tejender Singh, employer of PW-3, Shobha Ram, can be

regarded as a public witness in the present case. The contention that

the police should have explained and stated as to why they had

engaged a Videographer is to be rejected. In the present case the

police had taken precaution to engage a videographer to ensure that the

interrogation, disclosure and recoveries were proved and should not be

challenged in the Court. In fact, taking these precautions and

videography makes the prosecution case stronger. This cannot be a

ground to disbelieve the case of the prosecution. However as held

above, the videographer was not produced and therefore cannot be

relied upon. We also do not find any merit in the contention that DNA

test was not conducted. The body of the child was recognized by PW-

1, Tejinder Singh, and PW-3, father of the child. PW-5, Sukhlal, who

is the grandfather had identified the dead body of the child in the

mortuary of the AIIMS hospital. Failure to get conducted DNA test in

view of the said evidence cannot be a ground to hold that the

prosecution has failed to prove that the dead body was not of Bablu,

son of PW-3, Shobha Ram. The said factum has been proved beyond

the doubt.

17. We also do not agree with the contention that the statement of

PW-1, Tejender Singh is unbelievable and untrustworthy as he had not

mentioned the name of the gardener. It is apparent that PW-2,

Yogender was the gardener and he had himself appeared in the witness

box and narrated how the appellant was plucking Palm (Ber) with the

child and had taken him into the jungle. He had stated that the

appellant returned from the jungle after two and a half hours, but Bablu

was not with him. We also do not agree with the contention that PW-

1, Tejender Singh has contradicted himself as he has stated that he had

seen the child of his gardener Shobha Ram with Raju and at the same

time, he had stated that a gardener had seen the child with Raju while

plucking Palm (Ber). What PW-1 has stated was that on the day of

incident at about 2.00/2.30 p.m., when he was going to his farm house,

he saw Raju going with the child of his gardener. The second part is

hearsay and not admissible.

18. What is clear from the statement of PW-1,2 and 3 is that the

child was seen in the company of the appellant in the afternoon on 28 th

March, 2001. Both of them were plucking Palm (Ber). Thereafter, the

child could not be seen. PW-2, Yogender has stated that the child had

gone with Raju inside the jungle. Appellant returned from the jungle

after two and a half hours later but child was not with him. There may

be some differences in the statement of PW-1 and 2, but these are

minor contradictions and do not lead to the conclusion that the

statement made by the said witnesses are not trustworthy or reliable.

Statements of PW-1 and PW-2 make it clear that the police

apprehended the appellant and thereafter interrogated and questioned

him. Upon interrogation, the appellant made the disclosure statement

marked Ex.PW 1/A. Confessional statement leading to recovery is

admissible under Section 27 of the Evidence Act. Two facts are

apparent. Firstly, the appellant had stated that the child was

strangulated and murdered by him in the jungle and had left his body in

the jungle. Secondly, he had stated that he could take the police to the

place where the child was killed. Till that time, police, PW-1, PW-3

and PW-6 were not aware that the child had been strangulated or had

died. They were also not aware where the child or his body was lying.

It has come on record that the body was found deep inside the jungle

about one and a half kilometer away from the farm house. Only a

person, who knew about the dead body, could have furnished the said

information. Recovery was affected pursuant to the disclosure

statement made by the appellant. The jungle in question is

substantially big in size starting from Mehrauli and ending on Haryana

border. The dead body was highly decomposed and body parts were

mutated. As per the post mortem report Ex. PW 9/A, there were

several abrasions on the body. Left ear, left thumb and index finger,

right thumb and distal phalxe of ring and little finger were missing.

We may record that the post mortem report with regard to lower limbs

of the child is inconclusive, though it is stated in the said report as

under:-

"As mentioned above, penis and scrotum missing

and the area showed live-crawling maggots and margins

of wound were clear with no extravasation of blood in the

region and extended deep up to the pelvic cavity."

The post mortem report confirmed that the death was due to asphyxia

as a result of manual strangulation, a fact which was stated for the first

time by the appellant. Post mortem report states that death had taken

place about 5 days back. Recovery of the dead body deep inside the

jungle is to be attributed to the special knowledge of the appellant-

accused. PW-3, Shobha Ram had been searching for his son for 4 days

and was not able to locate him. The appellant in his statement under

Section 313 Code of Criminal Procedure, 1973 had not stated how and

in what circumstances, he had acquired the knowledge of the dead

body of the child of PW-3 deep inside the jungle. If he had acquired

knowledge of the dead body of the child, why he did not inform, PW-3

and others, who were looking for him. It is amply clear from the

evidence on record that the appellant was friendly with the son of PW-

3, Shobha Ram and was known to PW-3 and others.

19. In the case of State of Maharashtra v. Suresh (2000) 1 SCC

471, the Supreme Court examined the case law and the provisions of

Sections 27, 106 and 114 of Evidence Act and held as under:

"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to

know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."

20. In another case titled Suresh Chandra Bahri v.State of Bihar

1995 Supp(1) SCC 80 the Supreme Court while discussing the

essentiality for invoking of Section 78 of Evidence Act, held as under:-

"71. The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW 59 and others to the hillock where according to him he had thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe

that the disclosure statement was true and the evidence led in that behalf is also worthy of credence.

72. In the light of the facts stated above we are afraid the two decisions mentioned above and relied on by the learned counsel for the appellants have no application to the facts of the present case and do not advance the case of the appellants challenging the discovery and seizure of the incriminating articles discussed above. In Nari Santa the accused of that case was charged for the theft and it is said that in the course of investigation the accused produced certain articles and thereafter made a confessional statement and it was in these facts and circumstances it was held that there was no disclosure statement within the meaning of Section 27 as the confessional statement was made only when the articles were already discovered having been produced by the accused. Similarly the decision rendered in Abdul Sattar also does not help the appellants in the present case. In the case of Abdul Sattar recovery of wearing apparels of the deceased is said to have been made at the instance of the accused of that case more than three weeks after the occurrence from a public place accessible to the people of the locality and, therefore, no reliance was placed on the disclosure statement and recovery of the wearing apparels of the deceased. But in the present case it was soon after the arrest of appellant Gurbachan Singh that he took the Police Officer while in custody to the place where according to him he had thrown the dead body of Urshia wrapped by the incriminating articles. Those articles were not found lying on the surface of the ground but they were found after unearthing the Khad gaddha dumping ground under the hillock. Those articles were neither visible nor accessible to the people but were hidden under the ground. They were

discovered only after the place was pointed out and it was unearthed by the labourers. No fault therefore could be found with regard to the discovery and seizure of the incriminating articles."

21. In Ram Lochan Ahir v. State of West Bengal AIR 1963 SC

1074, it has been observed that recovery of the dead body at the

instance of the accused is a highly incriminating evidence. The only

thing which is required to be seen in such cases is whether the

prosecution has successfully proved that it could lay its hand or recover

the body only with aid of the accused.

22. In Criminal Appeal No. 979/2010 titled Harvinder Singh v.

State decided on 2nd June, 2011, a Division Bench of this Court has

referred to the judgments of the Supreme Court in Deepak

Chandrakant v. State of Maharashtra (2006) 10 SCC 151, Ningappa

Yallappa Hosamani and Ors. Vs. State of Karnataka and Ors. (2009)

14 SCC 582, State of Maharashtra v. Suresh (2000) 1 SCC 471 on the

question of recovery pursuant to disclosure statement and the weight

and evidentiary value attached. In the case of Deepak Chandrakant

(supra), the Supreme Court has observed that recovery of the dead

body is a highly incriminating circumstance if it is satisfactorily and

clearly established that the police could not have traced out or

recovered the body except on the basis of the disclosure statement.

23. Looking at the nature of the evidence, we are fully satisfied that

the dead body of the child was recovered only on the basis of the

disclosure statement made by the appellant and the police, PW-1, 3 and

6 did not have any knowledge about the death of the child and location

of the dead body. The dead body was concealed. Photographs marked

Ex.PW 6/1-9 and statement of witnesses clearly indicate that no one

had seen the dead body. We are fully satisfied that the trial court was

justified in convicting the appellant under Section 302 IPC.

24. The next question relates to conviction of the appellant under

Section 364 IPC. We have referred to the statements of PW-1, 2 and 3.

From the said statements it cannot be inferred or held that the

prosecution has proved or established the charge of kidnapping. As

noticed, alleged motive has not been proved by the prosecution. No

allegation or facts to show and establish kidnapping have been made

by any witness. PW-2, Yoginder had stated that appellant and the child

of PW-3, Shobha Ram had gone to the jungle and they were plucking

Palm (Ber). This does not indicate that the appellant had kidnapped

the child at that time. PW-2, Yoginder did not suspect or plead that

the child of PW-3 was abducted or taken away by the appellant. In

these circumstances, we are of the view that conviction of the appellant

under Section 364 IPC cannot be sustained and his conviction to this

extent is set aside on the ground of benefit of doubt.

25. Conviction of the appellant under Section 302 IPC, sentence and

fine imposed by the trial court under the said section are confirmed.

SANJIV KHANNA, J.

S.P. GARG, J.

AUGUST 27, 2012 NA