SANJAY RAJAK versus THE STATE OF BIHAR on 22 July 2019

654

[2019] 9 S.C.R. 654

SUPREME COURT REPORTS

[2019] 9 S.C.R.

A

SANJAY RAJAK

v.

THE STATE OF BIHAR

(Criminal Appeal No.1070 of 2017)

B

JULY 22, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Penal Code, 1860: s.364(A) – Conviction and rigourousimprisonment for life – Acquittal of co-accused by High Court –Prosecution case was that the co-accused kidnapped 6 years oldCchild – In confessional statement, both the accused disclosed thatafter kidnapping the child, they killed him and buried the corpse inthe bed of river – Both the accused were last seen together alongwith the victim – Police made no effort to make recovery of body –Trial court convicted both the accused on circumstantial evidenceD– High Court affirmed the conviction of appellant while acquittedthe co-accused – On appeal, held: The classmate of the victimdeposed that while they were standing at the gate of school, a manwith his face covered approached the victim and told him that hisfather was calling him and that the victim recognized him and calledhim uncle – The evidence of the parents of the victim was to theEeffect that the co-accused had worked as a servant in their houseearlier and being acquainted with co-accused, the child naturallymust have gone along with him – They also deposed that a demandfor ransom was made on phone by co-accused as they couldrecognize his voice – Several prosecution witnesses saw the appellantFand co-accused with the victim on the day of occurrence – Recoveryof victim’s bag was made from the house of the appellant which wasidentified by the father of the victim – No explanation was offeredby the appellant about the said recoveries – In the facts andcircumstances of the case, the failure of the police to recover thedead body was not of much consequence in the absence of anyGexplanation by the appellant both with regard to the victim beinglast seen with him coupled with the recovery from his house of thebelongings of the deceased – Therefore, interference with order ofconviction not called for.

H

Evidence: Identification of a person – Every individual has adistinctive style of speaking which makes identification by thoseacquainted possible – Identification of a known person by voice indarkness has been well recognized in criminal jurisprudence – Evenif a person tries to camouflage his voice in one call, given thelimitations of human nature there will be a tendency to state certainwords or sentences in an inimitable style exposing the identity – Inthe instant case, High Court without considering these factors, erredin granting acquittal opining that no recorded voice sample wasavailable – Criminal jurisprudence – Penal Code, 1860 – s.364(A).

Evidence: Circumstantial evidence – Corpus delicti not found– It is not an invariable rule of criminal jurisprudence that thefailure of the police to recover the corpus delecti will render theprosecution case doubtful entitling the accused to acquittal onbenefit of doubt – It is only one of the relevant factors to beconsidered along with all other attendant facts and circumstancesto arrive at a finding based on reasonability and probability basedon normal human prudence and behavior – Penal Code, 1860 –s.364(A).

Dismissing the appeal, the Court

HELD : 1. PW-10, aged about 8 years and a classmate ofthe victim deposed that while both of them were standing at thegate of the school at about 12 o’clock, a man with his face coveredwith a napkin approached the victim and told him that his fatherwas calling him. The victim addressed him as “uncle uncle”.The man took the school bag of the child on his shoulder, fed himice-cream and took the victim away. PW-11 and PW-12 the parentsof the victim deposed that the acquitted co-accused had workedas a servant in their house earlier. In the said facts, thesignificance of the victim addressing co-accused as “Uncle!Uncle!”, cannot be lost sight of and unfortunately did not fall forconsideration by the High Court at all. [Para 5] [658-H;659-A-C]

2. PW-11 and PW-12 deposed that co-accused had madecalls on mobile demanding ransom. Co-accused having workedearlier in the house of the witness, there is no infirmity in theirstatement of having recognised his voice. Every individual has a AB

C

D

E

F

G

H

Adistinctive style of speaking which makes identification by thoseacquainted possible. Identification of a known person by voice inthe darkness has been well recognized in criminal jurisprudence.Even if a person tries to camouflage his voice in one call, giventhe limitations of human nature there will be a tendency to statecertain words or sentences in an inimitable style exposing theBidentity. The High Court without considering these factors,unfortunately granted acquittal opining that no recorded voicesample was available. [Para 6] [659-C-E]

3. PW 5, the liquor shop owner deposed that on the day of occurrence itself the appellant and co-accused had come to hisCshop to purchase liquor. The appellant introduced co-accused ashis relative. They were accompanied by a boy aged 5-6 yearswearing pink shirt, blue pant, blue socks, black belt, red tie. Theyconsumed liquor at his shop for about two hours and then leftalong with the child. Nonetheless co-accused acquitted by theDHigh Court on the reasoning that his identity as the abductorcould not be established as PW-10 stated that the abductor hadhis face covered with a napkin and therefore the dock identificationwas doubtful. The prosecution did not choose to challenge theacquittal. The mere acquittal of a co-accused in the facts andcircumstances of the case can be of no benefit to the appellant.EPW-8 deposed that the appellant had come to his hotel with achild aged 5-6 years and requested for food to be served.Likewise, PW-9 also deposed having seen the appellant with thechild. Subsequently in the evening when he saw the photographof the missing child on the television, he was able to identify theFchild accompanying the appellant. The witness then went to thepolice station to give information. The house of the appellantwas raided in presence of seizure witnesses PW-6 and PW-7. Theblack coloured school bag of the victim was recovered from thehouse of the appellant. The school diary and copies inside thesame bore the name of the victim. The school diary also containedGhis home phone number and the mobile number of his father.The recovered items were identified by PW-12, the father of thevictim. The appellant offered no explanation about the saidrecoveries, except for denying the same. [Paras 7, 8] [659-F-H;660-A-C]H

4. It is not an invariable rule of criminal jurisprudence thatthe failure of the police to recover the corpus delecti will renderthe prosecution case doubtful entitling the accused to acquittalon benefit of doubt. It is only one of the relevant factors to beconsidered along with all other attendant facts and circumstancesto arrive at a finding based on reasonability and probability basedon normal human prudence and behavior. In the facts andcircumstances of the instant case, the failure of the police torecover the dead body is not much of consequence in the absenceof any explanation by the appellant both with regard to the victimlast being seen with him coupled with the recovery from his houseof the belongings of the deceased. [Para 9] [660-C-E]

Rama Nand and others v. State of Himachal Pradesh(1981) 1 SCC 511 : [1981] 2 SCR 444 ; SevakaPerumal and another v. State of Tamil Nadu (1991) 3SCC 471 : [1991] 2 SCR 711 – relied on.

Sattatiya alias Satish Rajanna Kartalla v. State ofMaharashtra (2008) 3 SCC 210 – distinguished.

Lohit Kaushal v. State of Haryana (2009) 17 SCC106 ; Iqbal and another v. State of Uttar Pradesh (2015)6 SCC 623 : [2015] 6 SCR 239 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1070 of 2017.

From the Judgment and Order dated 14.07.2015 of the High Courtof Judicature at Patna (Bihar) in Crl. Appeal (D.B.) No. 813 of 2009.

Prabhash Kr. Yadav, Mansoor Ali, Advs. for the Appellant.

Saket Singh, Ms. Sangeeta Singh, Mrs. Niranjana Singh, Advs.for the Respondent.

A

B

C

D

E

F

G

H

AThe Judgment of the Court was delivered byNAVIN SINHA, J.

1. The appellant assails his sentence and conviction under Section364(A) I.P.C to rigorous imprisonment for life with a default stipulation.Co-accused Balram convicted by the Trial Court has been acquitted byBthe High Court. Consequently, the appellant has been acquitted of thecharge under Section 120B I.P.C.

2. The victim, according to the prosecution case was a schoolgoing child aged about 5-6 years. According to the allegations, he is saidto have been kidnapped from the school on 12.04.2007 at about 12:15Cpm. by the co-accused Balram. The appellant and the co-accused werelast seen together along with the victim. In their confessional statementboth the accused disclosed that after kidnapping the child they had killedhim and buried the corpse in the bed of river Saryu at Chhapra. Thepolice did not make any effort to recover the body. The belongings ofthe deceased victim were recovered from the house of the appellant.D

3. Learned counsel for the appellant submitted that according toPW-10, the classmate of the deceased, co-accused Balram had kidnappedhim from the school. PW-11 and PW-12, the parents of the victim hadfurther deposed that ransom calls were made by Balram. Acquittal ofthe co-accused makes the conviction of the appellant unsustainable.EReliance on PWs. 5, 8 and 9 that the victim was last seen with theappellant is based on a preponderance of probabilities only. PW-5 haddeposed having seen the appellant along with Balram and the victim.The prosecution case against the appellant is based on circumstantialevidence with the link in the chain of events being incomplete. TheFfailure to take any step for recovery of the dead body leaves it open todoubt whether any such incident of kidnapping had occurred or not.Reliance in support of the submissions was placed on Sattatiya aliasSatish Rajanna Kartalla vs. State of Maharashtra, (2008) 3 SCC210, Lohit Kaushal vs. State of Haryana, (2009) 17 SCC 106 andIqbal and another vs. State of Uttar Pradesh, (2015) 6 SCC 623.G

4. Learned counsel for the State submitted that the acquittal ofco-accused Balram is irrelevant in the nature of the evidence availableagainst the appellant. His conviction therefore calls for no interference.

5. We have considered the submissions on behalf of the partiesHand carefully perused the materials on record. PW-10, aged about 8

years and a classmate of the victim deposed that while both of themwere standing at the gate of the school at about 12 o’clock, a man withhis face covered with a napkin approached the victim and told him thathis father was calling him. The victim addressed him as “uncle uncle”.The man took the school bag of the child on his shoulder, fed him ice-cream and took the victim away. PW-11 and PW-12 Manoj Kumar, theparents of the victim have deposed that the acquitted accused Balramhad worked as a servant in their house earlier. In the aforesaid facts, thesignificance of the victim addressing Balram as “Uncle! Uncle!”, cannotbe lost sight of and unfortunately did not fall for consideration by theHigh Court at all. Being acquainted with the co-accused, the child naturallywent along without any qualms in this background.

6. PW-11 and PW-12 deposed that Balram had made calls onmobile demanding ransom. Balram having worked earlier in the houseof the witness, we find no infirmity in their statement of having recognisedhis voice. Every individual has a distinctive style of speaking which makesidentification by those acquainted possible. Identification of a knownperson by voice in the darkness has been well recognized in criminaljurisprudence. Even if a person tries to camouflage his voice in one call,given the limitations of human nature there will be a tendency to statecertain words or sentences in an inimitable style exposing the identity.The High Court without considering the aforesaid factors, unfortunatelygranted acquittal opining that no recorded voice sample was available.

7. PW 5, the liquor shop owner deposed that on the day ofoccurrence itself the appellant and Balram had come to his shop topurchase liquor. The appellant introduced Balram as his relative. Theywere accompanied by a boy aged 5-6 years wearing pink shirt, bluepant, blue socks, black belt, red tie. They consumed liquor at his shopfor about two hours and then left along with the child. Nonetheless Balramhas been acquitted by the High Court on the reasoning that his identityas the abductor could not be established as PW-10 stated that the abductorhad his face covered with a napkin and therefore the dock identificationwas doubtful. The prosecution has not chosen to challenge the acquittal.The mere acquittal of a co-accused in the facts and circumstances ofthe case can be of no benefit to the appellant.

8. PW-8 deposed that the appellant had come to his hotel with achild aged 5-6 years and requested for food to be served. Likewise,PW-9 also deposed having seen the appellant with the child. Subsequently A

B

C

D

E

F

G

H

Ain the evening when he saw the photograph of the missing child on thetelevision, he was able to identify the child accompanying the appellant.The witness then went to the police station to give information. Thehouse of the appellant was raided in presence of seizure witnesses PW-6 and PW-7. The black coloured school bag of the victim was recoveredfrom the house of the appellant. The school diary and copies inside theBsame bore the name of the victim. The school diary also contained hishome phone number and the mobile number of his father. The recovereditems were identified by PW-12, the father of the victim. The appellantoffered no explanation about the aforesaid recoveries, except for denyingthe same.C

9. It is not an invariable rule of criminal jurisprudence that thefailure of the police to recover the corpus delecti will render theprosecution case doubtful entitling the accused to acquittal on benefit ofdoubt. It is only one of the relevant factors to be considered along withall other attendant facts and circumstances to arrive at a finding basedDon reasonability and probability based on normal human prudence andbehavior. In the facts and circumstances of the present case, the failureof the police to recover the dead body is not much of consequence in theabsence of any explanation by the appellant both with regard to thevictim last being seen with him coupled with the recovery from his houseof the belongings of the deceased. Rama Nand and others vs. State ofEHimachal Pradesh, (1981) 1 SCC 511, was a case of circumstantialevidence where the corpus delicti was not found. This court upholdingthe conviction observed:

“28…..But in those times when execution was the only punishmentfor murder, the need for adhering to this cautionary rule wasFgreater. Discovery of the dead body of the victim bearing physicalevidence of violence, has never been considered as the only modeof proving the corpus delicti in murder. Indeed, very many casesare of such a nature where the discovery of the dead body isimpossible. A blind adherence to this old “body” doctrine wouldopen the door wide open for many a heinous murderer to escapeGwith impunity simply because they were cunning and clever enoughto destroy the body of their victim. In the context of our law, SirHale’s enunciation has to be interpreted no more than emphasisingthat where the dead body of the victim in a murder case is notfound, other cogent and satisfactory proof of the homicidal death H

of the victim must be adduced by the prosecution. Such proofmay be by the direct ocular account of an eyewitness, or bycircumstantial evidence, or by both. But where the fact of corpusdelicti i.e. “homicidal death” is sought to be established bycircumstantial evidence alone, the circumstances must be of aclinching and definitive character unerringly leading to the inferencethat the victim concerned has met a homicidal death. Even so,this principle of caution cannot be pushed too far as requiringabsolute proof. Perfect proof is seldom to be had in this imperfectworld, and absolute certainty is a myth. That is why under Section3 of the Evidence Act, a fact is said to be “proved”, if the courtconsidering the matters before it, considers its existence so probablethat a prudent man ought, under the circumstances of the particularcase, to act upon the supposition that it exists. The corpus delictior the fact of homicidal death, therefore, can be proved by tellingand inculpating circumstances which definitely lead to theconclusion that within all human probability, the victim has beenmurdered by the accused concerned….”

10. Sevaka Perumal and another vs. State of Tamil Nadu,(1991) 3 SCC 471, was also a case where the corpus delicti was notfound yet conviction was upheld observing:

“5….In a trial for murder it is not an absolute necessity or anessential ingredient to establish corpus delicti. The fact of deathof the deceased must be established like any other fact. Corpusdelicti in some cases may not be possible to be traced orrecovered. Take for instance that a murder was committed andthe dead body was thrown into flowing tidal river or stream orburnt out. It is unlikely that the dead body may be recovered. Ifrecovery of the dead body, therefore, is an absolute necessity toconvict an accused, in many a case the accused would manage tosee that the dead body is destroyed etc. and would afford acomplete immunity to the guilty from being punished and wouldescape even when the offence of murder is proved. What,therefore, is required to base a conviction for an offence of murderis that there should be reliable and acceptable evidence that theoffence of murder, like any other factum of death was committedand it must be proved by direct or circumstantial evidence, althoughthe dead body may not be traced…”

AB

CD

E

F

G

H

A11. Sattatiya (supra) is completely distinguishable on its own factsas there was no credible evidence with regard to the last seen theory.The recovery of the weapon of the offence was disbelieved as nodisclosure statement under Section 27 of the Evidence Act was broughton record and the recoveries were effected from an open place. Likewisein Lohit Kaushal (supra) the appellant was made an accused onBconfession of a co-accused. But the vehicle allegedly recovered fromthe appellant was found not to be involved in the kidnapping. There wasno evidence with regard to the appellant having been involved in thekidnapping and taking away of the child. In Iqbal (supra) it was heldthat identification parade was not substantive evidence and apart fromCthe same there was no other incriminating evidence like recovery ofarticles from the appellant.