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Tuesday, April 19, 2016

the absence of visible injury on the body per se does not militate against the otherwise unambiguous medical opinion that the death was due to asphyxia. Breaking of bronchial tube is understandably a finding in endorsement of the above cause of death. Absence of visible injuries on the dead body, therefore as such, does not cast any doubt about the homicidal death of Jagram. This is also authenticated by the medical opinion that death had occurred between 12.6.1996 and 15.6.1996, i.e. during the interval between the abduction of the deceased and the detection of his dead body. “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that it means facts that are pre-eminently or exceptionally within his knowledge.”

                                                              NON-REPORTABLE

              IN  THE  SUPREME  COURT  OF  INDIA         CRIMINAL  APPELLATE
JURISDICTION

               CRIMINAL APPEAL NO. 365 OF 2013

CHAMAN AND ANOTHER                      …APPELLANTS

            VERSUS

STATE OF UTTRAKHAND                         …RESPONDENT
                     WITH
CRIMINAL APPEAL NO. 597 OF 2013

                       J U D G M E N T

AMITAVA ROY, J.

          The  appeals  assail  the  judgment  and  order  dated  11.6.2012,
rendered by the High Court of Uttrakhand, Nainital in  Criminal  Appeal  No.
111 of 2004, affirming the  conviction  of  the  appellants  under  Sections
302,364 r/w 34 IPC.  For the offence under Section  302  r/w   34  IPC,  the
appellants have been sentenced to undergo imprisonment for life and fine  of
Rs. 5000/- each and for the offence under Section 364 r/w 34 IPC, they  have
been sentenced to suffer rigorous imprisonment  for seven  years  and   fine
of Rs. 5000/- each.  Sentence of imprisonment in default of  fine  has  also
been awarded.  The trial court had convicted and  sentenced  the  appellants
in identical terms.

      2.    We have heard Mr. V. Shekhar, learned  senior  counsel  for  the
appellants – Chaman and Sukhbeer in Criminal Appeal No.  365  of  2013,  Mr.
P.K. Dey, learned counsel for  the  appellant  –  Rakesh  Kumar  @  Mota  in
Criminal Appeal No. 597 of 2013  and  Mr.  Jatinder  Kumar  Bhatia,  learned
counsel for the State.

3.  The genesis of the prosecution case is traceable to the  F.I.R.   lodged
on 12.6.1996 by Rajo Devi, widow of the deceased Jagram,  addressed  to  the
Station In-charge, Police Station Cleamantown,  Dehradun.   She  alleged  in
the FIR that prior to the date of incident i.e.  12.6.1996,  the  appellants
Chaman, Rakesh @ Mota and Sukhbeer along with two  associates  had  come  to
their residence in search of her son Vinod, who they  alleged  was  involved
in the murder of the son of Chaman.  As Vinod was not available there,  they
went back.  They returned on the date of the  incident  at  about  11  A.M.,
when she along with her husband and daughters Bina and  Manju  were  present
in the house.  The appellants again enquired about Vinod and as he  was  not
present in the house, they took away her  husband  Jagram  with  them.   The
informant stated that the appellants had come in a jeep bearing No.  UP  015
5330 and had forced her husband in the said jeep and  had  taken  him  away.
She expressed apprehension that due to  the  impression  of  the  appellants
that her son Vinod was involved in the murder of the  son  of  Chaman,  they
would eliminate her husband, Jagram.  She mentioned as well in the FIR  that
at the time of the incident, her daughters Bina and Manju raised alarm,  but
the people of the locality did not intervene.

4.    This information was registered as FIR No. 250 of 1996 and  in  course
of the investigation, on 15.6.1996 at  about  1400  hours,  one  Amar  Singh
informed the Police Station Chandpur, District  Bijnour  that  a  decomposed
dead body, 3/4 days old, had been detected in a  jungle  between  Cehla  and
Ismailpur.  This information was recorded and inquest of the dead  body  was
conducted  in  presence  of  panch  witnesses,  whereafter  the   body   was
dispatched for post-mortem examination.  At that stage, the  dead  body  was
unidentified.  It was found to  be  decomposed  with  maggots.   No  visible
injury was noticed on the dead body.  The appellant Chaman was  arrested  on
3.7.1996, who thereafter led the police to  the  jungle  at  Village  Cehla,
within the jurisdiction of P.S. Chandpur,  District  Bijnour  from  where  a
rope, as shown by him, was recovered from bamboo bushes.  According  to  the
prosecution, the appellant Chaman also showed to the police,  the  place  in
the jungle where Jagram had been killed by hanging him by that rope  from  a
tree.  The rope was seized vide recovery memo  and  the  site  plan  of  the
place of occurrence as indicated by the appellant Chaman, was prepared.

5.     The dead body, on the completion  of  inquest,  was  sealed  and  was
brought to the District Hospital, Bijnour for autopsy.  On the basis of  the
evidence  collected  in  the  course  of  investigation,  charge-sheet   was
submitted against the appellants – Chaman, Rakesh Kumar  @  Mota,  Sukhbeer,
Ghanshyam @ Bundu, Tofique and Ashok under Sections  302/364/201  IPC.   The
case being exclusively triable by the Court of  Sessions  was  committed  to
the Court of Additional Sessions Judge, Fast Track (IV),  Dehradun.   Charge
was framed under Sections  147,  201/302/364  r/w  149  IPC,  to  which  the
accused persons pleaded “not guilty” and claimed to be tried.

6.      The prosecution examined ten witnesses,  whereafter  the  statements
of the accused persons were recorded under  Section  313  Cr.P.C..   All  of
them stood by their denial in their statements.  On the  conclusion  of  the
trial, the trial court acquitted accused Ghanshyam,  Tofique  and  Ashok  of
all the charges.  It acquitted appellants as  well,  of  the  charges  under
Sections 147, 201 r/w 149 IPC but convicted  them,  under  Sections  302/364
r/w 34 IPC and sentenced them as above.

7.   The High Court, by the verdict  impugned,  affirmed  the  sentence  and
conviction recorded by the trial court.

 8.     Mr. Shekhar, learned senior counsel for the appellants-  Chaman  and
Sukhbeer has at the threshold dismissed  the  case  of  the  prosecution  as
motivated and concocted and to buttress this plea, has drawn  the  attention
of the Court to a letter  dated  15.4.1996,  addressed  by  one  Surender  @
Baniya, a detenue  in  District  Jail,  Bijnour  to  the  Superintendent  of
Police, Bijnour, U.P. hinting at a plot to kill, the  appellant  Chaman  who
is a witness in the case of the murder  of  his  son.   The  learned  senior
counsel sought to impress upon the court on  the  basis  of  this  document,
that the appellant Chaman in particular, was thus falsely implicated in  the
case of alleged abduction and murder of  Jagram.   Apart  from  emphatically
contending that there was an apparent confusion in  the  information  as  to
the type of the vehicle in which the appellants had visited her  house,  Mr.
Shekhar has endeavoured to discredit the prosecution case, for the  omission
to examine the scribe of the FIR, who admittedly had penned the same on  the
disclosures of the informant Rajo Devi.  According  to  the  learned  senior
counsel,  the  discrepancy  in  the  description  of  the   rope   allegedly
recovered, being led thereto by the appellant Chaman and  the  one  produced
in the court, did conclusively belie the prosecution case.

 9.     Mr. Shekhar laboured to emphasise that this anomaly  is  writ  large
from the testimony of PW4, Constable Nardev Singh who  identified  the  rope
produced in the court to  be  made  of  plastic  whereas  PW10  S.I.  Ramesh
Chander Sharma, the Investigation Officer in categorical terms, had  deposed
that the seized rope was made of jute and that it  was  not  a  nylon  rope.
Mr. Shekhar  further  urged,  that  admittedly  though  the  dead  body  was
decomposed and some portions of the abdomen and lower half were missing,  no
visible injury was noticed thereon and particularly on  the  neck  and  thus
the prosecution version of death by  asphyxia,  as  opined  by  the  doctor,
effected by the rope  recovered,  was  wholly  untrustworthy.   The  learned
senior counsel, while questioning the identification of the appellants,  has
also cast aside the prosecution case to be wholly improbable as well.

10.   While  generally  endorsing  the  above  contentions,  Mr.  P.K.  Dey,
learned counsel for the appellant Rakesh Kumar @ Mota, has  urged  that  the
FIR, lodged within 45 minutes of the incident, is too  prompt  in  point  of
time, having regard to the nature of  the  incident  complained  of  and  in
reality is ante timed to falsely implicate the appellant  –Rakesh  Kumar  in
the case. According to the learned counsel, not only  the  prosecution  case
is inherently unbelievable, in absence of any endeavour  whatsoever  by  the
family members to resist the  alleged  abduction  of  Jagram  and  the  non-
intervention of residents of the otherwise densely populated  neighbourhood,
the acquittal of the three co-accused, who  allegedly  had  accompanied  the
appellant, is destructive of the sub stratum of the prosecution case.   This
is more so, as the accused-appellant and their companions were unarmed.  Mr.
Dey has argued, that not only the discrepancy  in  the  description  of  the
rope recovered and produced in  the  court,  renders  the  prosecution  case
highly doubtful, in absence of identification  of  the  dead  body  and  any
perceptible  nexus  between  the  offence  of  murder  of  Jagram  and   the
appellants, their conviction, if sustained, would be a travesty of  justice.
The learned counsel underlined the contradictions in the statements of  PW6,
the Doctor and PW5-Rakesh  about the state of the body  before  the  autopsy
and also maintained that in absence of any evidence of coordination  between
the police stations at Dehradun and Bijnour over the detection of  the  dead
body, the despath thereof and its identification, the prosecution could  not
 establish that the dead body was that of Jagram.   Inviting  the  attention
of this Court to the evidence of PW5- Rakesh, the son of  the  deceased  who
stated  to have come to learn about the abduction of  his  father  4/5  days
prior to the recovery of the dead body, the  learned  counsel  has  insisted
that such a statement being a part of the  same  transaction  enfolding  the
alleged abduction of the deceased and recovery of the dead body, it  is  res
gestae and thus demolished the version in the FIR as well as  the  testimony
of the informant to that effect.  Mr. Dey has urged  as  well  that  as  the
factum of the identification of the dead body to be of Jagram,  as  made  by
his son PW5 Vinod, had not been put to the  appellants,  in  the  course  of
their statements under Section 313 Cr.P.C., this incriminating  circumstance
could not have been taken note of and acted upon in support of the charge.

11.   Per contra,  learned counsel for the State  has maintained  that   the
testimony of PW1–Rajo Devi, the informant, PW2- Manju, the daughter of   the
deceased, PW4 Constable Nardev Singh, the seizure witness of the  rope,  PW5
Rakesh, son of the deceased who identified the dead body, PW6 Dr. A.K.  Kaul
who had performed the post-mortem examination and PW10 S.I.  Ramesh  Chander
Sharma in particular has proved the charge  against  the  appellants  beyond
all reasonable doubt and thus the conviction and sentence   as  recorded  by
the trial  court  and  affirmed  by  the  High  Court  does  not  merit  any
interference.

12.      The learned  counsel  for  the  State  has  asserted  that  as  the
abduction of the deceased has been convincibly proved by PWs  1  and  2  and
that Jagram had met a homicidal death immediately thereafter,  there  was  a
rebuttable presumption of guilt against  the  appellants  and  as  they  had
failed to offer any explanation whatsoever, as to how they  had  dealt  with
Jagram while he was in their custody, their  conviction  is  sustainable  in
law and on facts.  He referred, in particular to Section 106 of  the  Indian
Evidence Act, 1872  to  reinforce  this  plea  and  also  relied  upon   the
decision of this Court in State of State of W.B. vs. Mir Mohammad  Omar  and
others, (2000) 8 SCC 382.

13.   The arguments advanced and the materials on record have  received  our
due  attention.   Concurrent  findings  of  facts,  notwithstanding,  having
regard to the conviction and sentence as recorded,  we  have  traversed  the
evidence available to the extent essential for the present adjudication.

14.   The facts narrated in the FIR dated 12.6.1996, in  our  estimate,  are
of sufficient clarity regarding the dual visits of  the  appellants  to  the
house of the deceased in search of his son Vinod.  The contents  thereof  do
not admit any doubt that the appellants along with two others had come in  a
jeep, the number whereof had been provided in the FIR, on the  date  of  the
incident at about 11 A.M. and had taken away with them the deceased,  father
of Vinod in presence of the informant- Rajo Devi,  his  daughters  Bina  and
Manju.  There is a clear averment that though  the  daughters  raised  alarm
and that the people of the locality were present, no body did  come  forward
to prevent the abduction.  The omission on the part of  the  people  in  the
neighbourhood to intervene per se, in our opinion,  does  not  detract  from
the truthfulness of the report made which admittedly had  been  done  within
the shortest possible time.  Though the FIR was  written by one H.S.  Verma,
  his non-examination as well is of no adverse bearing  on  the  prosecution
case.  The letter by Surender,  a  detenu  in  the  District  Jail,  Bijnour
hinting at the plot to kill Chaman also, in our  comprehension,  is  not  of
any definitive significance.

15.    PW1-Rajo Devi, in unequivocable terms, stated on  oath  that  on  the
date of the incident at 11 A.M.,  the  appellants  and  two  other  persons,
whose names were not known to her, had come in a car  with  curtains.   They
searched for her son Vinod and when he was not found,  they  picked  up  her
husband Jagram, pushed him in the car and took  him  away.   She  identified
the appellants and other accused persons in the court to be  the  kidnappers
of her husband.  She stated as well, in terms of the  FIR  filed,  that  the
appellants had visited her house 15 days prior  to the date of the  incident
looking for her son Vinod, disclosing it to her that they suspected that  he
was involved in the murder of the son of Chaman.  The witness  also  deposed
that thereafter she along with her two daughters Bina and Manju and  son-in-
law, had visited the Bijnour mortuary and had identified the  dead  body  of
her husband.

16.   PW2- Manju, daughter of the deceased testified in the  same  lines  as
of her mother.  She identified the appellants who along with two others  had
come in a car to their house on the date of the  incident.   She  reiterated
the purpose  of  the  visit  of  the  appellants  and  their  companions  as
disclosed by them and confirmed that they had similarly come to their  house
in search of Vinod 15 days prior to the date  of  incident.   She  mentioned
about the presence of her sister Veena in the  house  at  the  time  of  the
incident.  She was categorical  in  the  matter  of  identification  of  the
accused persons.

17.    PW4 Constable Nardev Singh  deposed that  the  appellant  Chaman  led
the police to recover the rope whereby Jagram was  hung from the  tree.   He
stated that the appellant Chaman not only identified the tree but  also  led
the police to the rope which was recovered from the  bush   in  the  jungle.
He identified the rope in  the  court  to  be  one  of  plastic.  In  cross-
examination, this witness clarified that the jungle  was not on  a  thorough
fare.  He stated that he was unaware  as  to  why  in  his  statement  under
Section 161 Cr.P.C., the recovered rope was described to be  a  “jute  rope”
(suthli).

18.      PW5 Rakesh, son of the deceased on oath deposed that he  recognized
the dead body of his father at District Hospital  Mortuary, Bijnour,   after
it was taken out from the sealed cloth before the  post-mortem  examination.
He stated that he came to know about 4/5 days before, that appellant  Chaman
had called his father and had taken him away.

19.    PW6 Dr. A.K. Kaul who had performed the autopsy, testified  that  the
dead body was then in an advanced stage of decomposition  and  maggots  were
present on it.  He stated that some body parts like middle stomach and  left
thigh were  missing and that  it  appeared  that  it  had  been  nibbled  by
animals.  He mentioned that  there was no  apparent  injuries  on  the  dead
body of the deceased but opined that the cause of death might  be  asphyxia.
He stated as well that there was no mark of rope on the body but added  that
bronchial tube was broken.  According to him,  death  had  occurred  between
12.6.1996 to 15.6.1996.

20.    PW7 Shakoor Khan was a witness to the recovery  and  inquest  of  the
dead body.  PW8 S.I.  Charan Singh had prepared the inquest  report  of  the
dead body.  PW9  Amar Singh had detected the dead body of an unknown  person
lying in the jungle between Cehla and Ismailpur.   The  dead  body  was  3/4
days old and he had informed of this fact in writing to the  Police  Station
Chandpur.

21.    PW10 S.I. Ramesh Chander Sharma, the Investigating  Officer  narrated
the steps taken by him in the course of investigation.  He stated about  the
recovery of the rope from the bamboo bushes  of  the  place  of  occurrence,
being led thereto by appellant Chaman and the preparation  of  the  memo  of
seizure thereof.  He admitted in his cross-examination that the  place  from
where the rope was recovered was accessible to all.  He mentioned  that  the
rope recovered was a jute rope and not a nylon rope.

22.   A perusal of the statements of  the  accused  persons  recorded  under
Section 313  Cr.P.C.  reveal  that  comprehensive  questions  pertaining  to
abduction and murder of Jagram by them, detection  of  his  decomposed  dead
body,  post-mortem  thereof  with  the  cause  of  death  and  the  recorded
statement  of  appellant  Chaman  leading  to  the  discovery  of  the  rope
involved, were put to them so as to fully enable them  to  explain  all  the
incriminating circumstances appearing against them in the  evidence  adduced
by the prosecution.

23.      An analytical evaluation of the materials on record does not  admit
of any doubt of the successive visits of the appellants on the  turn  of  15
days to the house of the deceased in search of  Vinod  whom  they  suspected
was involved in the murder of the son of the  appellant  Chaman.   There  is
nothing to disbelieve PWs 1 and 2 that the appellants, on the  date  of  the
incident, had come in a jeep and as they did not find Vinod  in  the  house,
they abducted  Jagram,  who  was  later  on  found  dead  within  3/4   days
therefrom in a nearby jungle.  Though the incident took place in  the  broad
day light and the daughters did raise alarm, the  mere  non-intervention  by
the persons in the locality, in our opinion, in the face  of  the  otherwise
overwhelming and consistent testimony of the mother and  the  daughter  does
not discredit the prosecution case.   Noticeably,  the  PWs  1  and  2  were
steadfast in the matter of identification of the three appellants, not  only
at the time of the incident but also  thereafter  in  court.   According  to
them,  the  appellants  were  of  the  village  Ismailpur  and  thus   their
identification was not difficult for them.  Admittedly the  FIR  was  lodged
with due promptness, thus obviating the possibility  of  any  embellishment.
To reiterate, non-examination of the scribe  of  FIR  does  not  render  the
prosecution case untrustworthy in the attendant facts and circumstances.

24.  The irrefutably proved circumstance  against  the  appellants  is  that
they had visited the house of the deceased twice within a  span  of  fifteen
days, on each occasion in search of his son  Vinod  and  ultimately  on  the
date of the incident    had forcibly taken him away, only thereafter  to  be
found to have died a homicidal death in an unnatural setting.  The  fact  of
recovery of  the  rope,  being  led  thereto  by  the  appellant  Chaman  is
admissible in evidence against the appellants.  The  discrepancy  about  the
texture of the rope, the seizure thereof having otherwise  been  proved,  is
not of much significance.  PW4 Constable Nardev Singh,  who  was  associated
with the procedure of seizure of the rope had identified  the  same  in  the
court.   In  our  opinion,  nothing  much  turns  on  the  mismatch  in  the
description thereof as has been sought to be emphasised on the basis of  his
statement to this effect under Section 161 Cr.P.C.  The dead body  has  been
identified by the informant wife in presence of her daughters  and  sons-in-
law as well as the son PW5 as is evident from the evidence on record.

25.     The motive for the offence is also discernible in the facts of  this
case and for that matter, from the disclosures made by  the  appellants  for
their visits in search of Vinod, who they  believed,  was  involved  in  the
murder of the son of the appellant Chaman.  The pleas based  on  res  gestae
and the perceived omission to bring to the notice  of  the  appellants,  the
factum of identification of the dead body, in the face  of  the  consistent,
cogent and coherent evidence on record, do not commend for  acceptance.  The
statement of PW2 that he came to know about the  abduction  after  4/5  days
can by no means be  one  in  course  of  the  transaction  encompassing  the
incident to attract the doctrine of res gestae.

26.    Significantly, the proved  abduction of the deceased from  his  house
by the appellants is per se a criminal offence and carries with it   a  much
higher degree of sinister culpability compared to any phenomenon  of   “last
seen together”, simpliciter.  Further the deceased being in the  custody  of
the appellants after  his  abduction  on  12.6.1996,  it  was  within  their
special knowledge as to how he  had  been  dealt  with  by  them  thereafter
before his dead body was found in a decomposed state  in  a  nearby  jungle.
No  explanation  is  forthcoming  in  any  form  in  this  regard  from  the
appellants.

27.   This Court in State of West Bengal (supra) in a somewhat similar  fact
situation, where the deceased  was  abducted  by  the  accused  persons  and
thereafter his mangled body was found, held that the pristine rule that  the
burden of proof is on the prosecution to prove  the  guilt  of  the  accused
should not be taken as a fossilised doctrine as if it  admits of no  process
of  intelligent  reasoning.   It  was  enunciated  that  the   doctrine   of
presumption is not alien to the above rule, nor would it impair  the  temper
of the rule qua the purport of presumption of fact as a rule in the  law  of
evidence.  It was observed thus:

“Presumption of fact is an inference as to the existence of  one  fact  from
the existence of some other facts, unless the truth  of  such  inference  is
disproved. Presumption of fact is a rule in law  of  evidence  that  a  fact
otherwise doubtful may be inferred from certain  other  proved  facts.  When
inferring the existence of a fact from other set of proved facts, the  court
exercises a process of reasoning and reaches a  logical  conclusion  as  the
most  probable  position.  The  above  principle  has   gained   legislative
recognition in India when Section 114 is incorporated in the  Evidence  Act.
It empowers the court to presume the existence of any fact which  it  thinks
likely to have happened. In that process the court shall have regard to  the
common course of natural events, human  conduct  etc.  in  relation  to  the
facts of the case.”

28.    Adverting to the facts, this Court ruled that as the prosecution  had
succeeded in establishing  that  the  deceased  had  been  abducted  by  the
accused, they alone knew what happened to him until he was with them and  if
he was found murdered in a short time, after the  abduction,  the  permitted
reasoning process would enable the court to draw the  presumption  that  the
accused  had  murdered  him.   It  was  held  that  such  inference  can  be
disrupted, if the  accused would tell the Court what else  had  happened  to
the deceased at least until he was in their custody.

29.  Referring to Section 106 of the Evidence Act, it  was  propounded  that
the said section was not intended to relieve  the prosecution of its  burden
to prove the guilt of the accused beyond reasonable doubt, but would   apply
to cases where prosecution had succeeded  in  proving  facts  from  which  a
reasonable inference could be drawn  regarding   the  existence  of  certain
other facts,  unless  the  accused,  by  virtue  of  his  special  knowledge
regarding such facts, succeed to offer any explanation, to  drive the  court
to draw a different inference.

30.       The following observations by this Court in the context  of  above
legal provision in Shambhu Nath Mehra vs. State of Ajmer  AIR  1956  SC  404
was adverted to with approval.

“This lays down the general rule that in  a  criminal  case  the  burden  of
proof is on the prosecution and Section 106 is  certainly  not  intended  to
relive it of that duty.  On the contrary, it is designed   to  meet  certain
exceptional  cases  in  which  it  would  be  impossible,  or  at  any  rate
disproportionately difficult for the prosecution to  establish  facts  which
are ‘especially’ within the knowledge of the  accused  and  which  he  could
prove without difficulty or inconvenience. The  word  ‘especially’  stresses
that it means facts that  are  pre-eminently  or  exceptionally  within  his
knowledge.”



31.   Proof beyond reasonable doubt, as has  been  held  in  a  plethora  of
decisions of this Court, is only a guideline  and  not  a  fetish  and  that
someone, who is guilty, cannot get away with  impunity  only  because  truth
may suffer some infirmity when projected  through  human  processes  as  has
been  observed  in  Inder  Singh  and   another   vs.   The   State   (Delhi
Administration) (1978)4SCC161. A caveat  against   exaggerated  devotion  to
the rule of benefit  of  doubt  to  nurture  fanciful  doubts  or  lingering
suspicion  so as to destroy social defence has been sounded  by  this  Court
in Gurbachan Singh vs. Satpal Singh and others (1990)1SCC 445.  It has  been
propounded that reasonable doubt is simply that degree of doubt which  would
permit a reasonable and a just man to come to a  conclusion.   It  has  been
underlined therein that reasonableness of doubt must be commensurate to  the
nature of the offence to be investigated.

32.    Judged  by  the  above  touchstone  of  reasonableness  of  doubt  in
evaluating the facts and circumstances of the present case, we are clear  in
our mind that the complicity of the appellants in the  offences  with  which
they have been charged, has been convincingly  proved as  required  in  law.


33.      It is patent from the evidence of the doctor conducting  the  post-
mortem examination that the cause of death is  asphyxia.   PW6  –  Dr.  A.K.
Kaul has indicated as well in his statement on oath that the bronchial  tube
of the deceased was broken.   Having regard to the decomposed state  of  the
dead body, at the time when the post-mortem was conducted,  the  absence  of
visible injury on the body per se does not militate  against  the  otherwise
unambiguous medical opinion that the death was due  to  asphyxia.   Breaking
of bronchial tube is understandably  a finding in endorsement of  the  above
cause of death.   Absence of visible injuries on the  dead  body,  therefore
as such, does not  cast any doubt  about  the  homicidal  death  of  Jagram.
This is also authenticated by the medical opinion that  death  had  occurred
between 12.6.1996 and  15.6.1996,  i.e.  during  the  interval  between  the
abduction of the deceased and the detection of his dead body.

34.    On a anxious consideration of the entire gamut of the  facts  of  the
case  and the principles of law evolved, we are,  thus   of  the  unhesitant
opinion that  the concurrent convictions and the  sentences  based  thereon,
as recorded by the trial court and  the  High  Court,  do  not  warrant  any
interference in the present appeals.  The appeals are, thus dismissed.

……..……………………..….J.
                                  (S.A. BOBDE)


……..……………………..….J.
NEW DELHI                    (AMITAVA ROY)
APRIL 19, 2016.

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