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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 26 OF 2008
Prakash .... Appellant(s)
Versus
State of Rajasthan .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 27 OF 2008
J U D G M E N T
P.Sathasivam,J.
1) These appeals are directed against the final judgment
and order dated 02.03.2006 passed by the High Court of
Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal
No. 154 of 2002, whereby the High Court dismissed the
appeal filed by the appellants herein and confirmed the
order dated 31.01.2002 passed by the Additional Sessions
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Judge, Barmer, Rajasthan in Sessions Case No. 28 of 1998 by
which the appellants herein were convicted for the offence
punishable under Sections 302, 364 and 120-B of the Indian
Penal Code (in short “IPC”) and sentenced them to undergo
imprisonment for life under Section 302 and to pay a fine of
Rs.5000/- each.
2) Brief facts:
a) This is a case of kidnapping and murder of a 7 year old
child out of enmity.
b) On 16.04.1998, Leeladhar (PW-1) lodged a report at
Police Station, Barmer stating that on 15.04.1998 his son
Kamlesh aged about 7 years left for the school in the
morning but did not return home till evening at 7.00 p.m. In
pursuance of the said report, the police made a search. On
19.04.1998, on an information by Hansraj (PW-8), Khet Singh
(PW-9) and Bheemaram (PW-11) that a dead body of a boy
was found lying on the hill of Sujeshwar in mutilated
condition, the police along with one Leeladhar (PW-1) went
to the spot. They found that some parts of the dead body
were eaten by the animals. From the clothes, shoes, socks
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and school bag, PW-1 identified the dead body as that of his
son.
c) On 19.04.1998, another report of kidnapping and
murder was lodged by Leeladhar (PW-1) suspecting the
involvement of Ramesh S/o Dashrath, Prakash s/o
Gautamchand, Ramesh @ Papiya S/o Bhanwar Lal, Pannu,
Inder S/o Murlidhar, Ganesh and Pappu. After the
investigation and recovery, the police arrested Prakash,
Ramesh @ Papia and Ramesh Khatri on 22.04.1998 and a
charge sheet under Sections 302, 364 and 120-B of IPC was
filed against the accused persons.
d) By order dated 31.01.2002 in Sessions Case No.28 of
1998, the Additional Sessions Judge, Barmer convicted all
the three accused persons for the offences punishable under
Sections 302, 364 and 120-B of IPC and sentenced them
under Section 302, to undergo life imprisonment with a fine
of Rs.5000/- each, in default of payment of fine, further to
undergo rigorous imprisonment for one year, under Section
364, RI for 7 years with a fine of Rs.2000 each, in default of
payment of fine, further to undergo RI for 6 months and
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under Section 120-B to undergo 7 years RI with a fine of
Rs.2000 each, in default of payment of fine, further to
undergo 6 months RI.
e) Challenging the order of conviction and sentence, the
appellants filed appeal being D.B. Criminal Appeal No. 154 of
2002 before the High Court. By order dated 02.03.2006, the
High Court dismissed the appeal filed by the appellants
herein.
f) Aggrieved by the said order, the appellants have
preferred these appeals by way of special leave.
3) Heard Mr. Seeraj Bagga, learned Amicus Curiae for the
appellants and Mr. Shovan Mishra, learned counsel for the
respondent-State.
Discussion:
4) In the case on hand, the prosecution case rests solely
on the basis of circumstantial evidence.
It was contended by
the learned amicus curiae for the appellants that in the
absence of direct evidence, the slightest of a discrepancy,
depicting the possibility of two views would exculpate the
accused of guilt, on the basis of benefit of doubt. Before
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considering the materials placed by the prosecution and the
defence, let us analyse the legal position as declared by this
Court on the standard of proof required for recording a
conviction on the basis of circumstantial evidence. In a
leading decision of this Court in Sharad Birdhichand
Sarda vs. State of Maharashtra, (1984) 4 SCC 116,
this
Court elaborately considered
the standard of proof required
for recording a conviction on the basis of circumstantial
evidence and laid down the golden principles of standard of
proof required in a case sought to be established on the
basis of circumstantial evidence which are as follows:
“153. A close analysis of this decision would show
that the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned “must or should” and
not “may be” established. There is not only a
grammatical but a legal distinction between “may be
proved” and “must be or should be proved” as was
held by this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra,(1973) 2 SCC 793 where the
observations were made: [SCC para 19, p. 807):
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between ‘may be’
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and ‘must be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based
on circumstantial evidence.”
5) Though learned counsel for the appellants referred
other decisions, since the above principles have been
followed in the subsequent decisions, we feel that there is no
need to deal with the same elaborately. With the above
“five golden principles”, let us consider the case of the
prosecution and find out whether it satisfies all the tests.
6) The relevant and material circumstances heavily relied
on by the prosecution are:
(i) The deceased was last seen in the company of the
appellants-accused.
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(ii) Recovery of incriminating articles in pursuance of the
information given by the appellants.
(iii) Motive.
7) Learned amicus curiae for the appellants as well as
learned counsel for the respondent-State took us through
the entire evidence, both oral and documentary. We
scrutinized the same and also considered the respective
submissions made by them. Before proceeding further, it is
relevant to note that among these three accused, A-1 has
not challenged his conviction and sentence. The present
appeals are filed by A-2 and A-3, wherein we refer the
appellants which relates to A-2 and A-3 alone.
8) The first witness examined by the prosecution was
Leeladhar (PW-1) – father of the deceased. In his deposition,
PW-1 deposed that he is residing at Hathidhora, near Shiv
Temple, Barmer. He had two sons and one daughter. His
one son died prior to the incident. His eldest son was
Kamlesh, thereafter his daughter Khushbu and then
youngest son Narendra. He is doing the work of light fitting.
He usually goes to work at 8.30-9.00 in the morning and
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returns back home at 8.00-8.30 in the night. Amongst his
three children, Kamlesh used to go to School. He studied in
Alesh Narayan Khatri School. On 15.04.1998, his son had
gone to school at 11.30 a.m. At that time, son of Peetamber
accompanied him. He further narrated that at 5.45 p.m.,
when he was working at the place of Cobblers, he received
the news that his son Kamlesh has not come back from the
school. On receipt of the said information, he went home
where his wife informed that Kamlesh has not come back
from the school. Thereafter, he went to the school and
enquired from the school teacher, who told that Kamlesh had
not come to school on that day. Thereafter, he enquired
from all his relatives at Barmer and searched for him but
could not locate him. Then he lodged a complaint with City
Police Station stating that his child is not traceable. Five
days thereafter at about 7 p.m. the police informed him that
they found a dead body. Thereafter, he along with Premji
Ghanshyamji went up to the hills. There is a mountain
behind the Shivji temple. He was taken up to that mountain
and Premji, Ghanshyamji and Moola had gone to the
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mountain top where the dead body was lying. On seeing the
dead body, all the three came to C.I. Sahib and told that it
was the dead body of his son Kamlesh. During night, it was
not possible to lift the dead body, therefore, next morning he
again went to that place and collected the dead body of his
son tied in a cloth and brought the same to his home and
buried it. He also stated that the right hand of the dead
body was cut and the same was missing. The head of the
dead body was also missing. There was a white shirt with
black spots, black pant, black belt and black shoes put on
the dead body. There was also a school bag with the dead
body, which was of his son Kamlesh. The clothes worn on by
the dead body was also of his son.
9) He further narrated that on the second day after
missing of his son, suspicion rose on Pappu who had gone to
Delhi. He further explained that three months prior to the
incident, Ramesh Khatri had entered into the house of
Indramal Brahmin, whose house is adjacent to his house. In
this regard he made a complaint to the parents of the girl as
well as to the persons of the locality. The girl was of
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Indramal. Then Ramesh put the poison packet in the house
of Indramal over the wall. Later on, the daughter of
Indramal died by consuming that poison. Thereafter,
Ramesh Khatri and Indramal Brahmin used to threaten him
that they would take revenge of it and would abduct his son
at the time of going to school. Three months after the said
threat, they committed the murder of his son after abducting
him when he was on the way to school. C.I. Sahib of police
had taken away the clothes in his presence and also
collected pant with black belt, a small blood smeared shit
with black spot design, two shoes and socks etc. He lodged
a report (Ex.P-01) with police station on the same day
stating that his child did not come back home from school.
He also informed the police that the dead body of his son
was found five days after his missing. After conducting
inquest, the police handed over the dead body of his son.
10) The next witness relied on by the prosecution is PW-7,
mother of the deceased. In her evidence, she deposed that
she had three children. The name of the third child was
Kamlesh. She narrated that about 14 months ago, she had
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sent Kamlesh to school. On the relevant date, when she was
standing outside her house, the accused persons, namely,
Pappu, Ramesh and Prakash present in the court were
standing at the shop of Pappu. Amongst them, Pappu went
to his house and brought scooter and went on the scooter in
the same direction in which Kamlesh and Santosh had gone.
Thereafter, she went inside her home. At the relevant time,
her husband was doing the work of light fitting and he used
to go to work spot at 9 ‘O Clock in the morning return home
at 8 ‘O Clock in the evening. On the relevant date, when he
returned home, she informed him that their son Kamlesh had
not come back from the school. Thereafter, her husband
PW-1 went in search of Kamlesh along with her brother
Prem. She also narrated the incident about Ramesh that 12
months prior from the date of her missing of her son, at 11 O
clock, she had seen the accused Ramesh entering the house
of Indrammal which is close to her house. Ramesh had
relationship with the daughter of Indrammal, namely,
Pappuni. The said Ramesh used to enter their house even
during night. She informed the same to Indrammal’s wife.
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She also disclosed this fact to other neighbours. According
to her, on coming to know of the said incident, Indrammal
and his sister beat her for which she had lodged a complaint
with the police due to which they threatened that they would
take revenge of it. One month after the said incident,
Pappuni died by consuming poison and, thereafter, the
accused Ramesh used to quarrel with her and many times
threatened her. She also reported the matter to the police.
With the assistance of the local people, the matter was
compromised with him. However, she complained that after
compromise, her son Kamlesh was missing and subsequently
murdered. She narrated the motive for killing of her son by
the accused persons. She also asserted that Pappu, Ramesh
and Prakash had made her son disappear and according to
her, they did it on account of the death of Pappuni and
thereafter, murdered her son.
11) Apart from the evidence of PWs 1 and 7 with regard to
the last seen theory, prosecution examined three persons,
namely, Moolchand (PW-3), Gautam Chand (PW-4) both are
goldsmiths and Biglaram (PW-10). In his evidence, PW-3 has
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stated that he was known to Leeladhar, Ramesh and
Prakash. He further stated that on the date of the incident,
in the afternoon at about 12 he had seen all the accused
persons moving towards Panchpati Circle Road on a scooter.
He had also seen the son of Leeladhar sitting in between the
three accused persons on the scooter. Gautam Chand (PW-
4), who is also a goldsmith, in his evidence has stated that
on the date of the incident at about 12.15 he had seen the
accused moving in a scooter along with the small boy.
Though both PWs 3 and 4 did not identify the accused
persons in the identification parade, in view of their
assertion, we are satisfied that the prosecution has
succeeded in establishing the circumstance of last seen
theory.
12) The next witness relied on by the prosecution to
support the last seen theory is Bijlaram (PW-10). In his
evidence, he stated that on 15.04.1998, he had gone to
Sujesar Hillock for collecting firewood. While he was
returning on Gelu Road, he saw the accused along with a
boy moving towards the Hillock. The boy was wearing black
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pant and white shirt and black shoes. He further narrated
that all the three accused and the child moved towards the
Hillock. He identified all the accused in the Court. He also
admitted that he was known to all the three accused persons
and the child. He was cross-examined at length but nothing
was elicited disproving his statement relied on by the
prosecution. The prosecution very much relied on by PWs 3,
4 and 10 to prove the last seen theory and the courts below
rightly accepted their version.
13) The analysis of the above evidence discussed so far
clearly show that the prosecution has succeeded in
establishing that the relations betweens the family of
Leeladhar and the appellants-accused were hostile. In fact,
Ramesh Khatri, one of the accused had threatened
Leeladhar and his wife of finishing their family. We are
satisfied that the prosecution has proved motive on the part
of the appellants for committing the murder of Kamlesh, son
of PWs 1 and 7.
14) It is true that counsel appearing for the appellant
pointed out the discrepancy in the evidence of PWs 11, 12,
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16 and 21 about the condition of the dead body.
It is
relevant to point out that these prosecution witnesses are
villagers and further the body was recovered only on
20.04.1998 whereas the incident occurred on 15.04.1998.
In
fact, PWs 9 and 11 cattle grazers have deposed that the
dead body was partly eaten by dog.
In view of the same,
merely because the prosecution witnesses were not
consistent in describing the dead body of 14 year old boy,
the entire prosecution case cannot be disbelieved.
15) In the course of investigation and in pursuance of the
information given by A-1, pant and shirt stained with blood
of Ramesh were recovered from his house in the presence of
PWs 21 and 23. The pant and shirt were seized and sealed
in a packet marked as S-8. It is further seen that as per FSL
report, Exh.P-86, the presence of blood on the pant and shirt
are of human origin.
16) In the light of the above discussion, we hold that the
prosecution has established all the circumstances by cogent
and acceptable evidence and if we consider all the
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circumstances it leads to a conclusion that it was the
appellants/accused who kidnapped and committed the
murder of the deceased Kamlesh.
We are satisfied that the
trial Court has rightly accepted the prosecution case and
awarded life sentence which was affirmed by the High Court.
We fully concur with the said conclusion. Consequently, the
appeals fail and the same are dismissed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
MARCH 22, 2013.
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