Monday, 29 July 2019

Whether accused is entitled to get benefit of doubt if dead body is not recovered?

 Sevaka Perumal and another vs. State of Tamil Nadu,
(1991) 3 SCC 471, was also a case where the corpus delicti was not
found yet conviction was upheld observing:
“5….In a trial for murder it is not an absolute
necessity or an essential ingredient to establish
corpus delicti. The fact of death of the deceased must
be established like any other fact. Corpus delicti in

some cases may not be possible to be traced or
recovered. Take for instance that a murder was
committed and the dead body was thrown into
flowing tidal river or stream or burnt out. It is
unlikely that the dead body may be recovered. If
recovery of the dead body, therefore, is an absolute
necessity to convict an accused, in many a case the
accused would manage to see that the dead body is
destroyed etc. and would afford a complete immunity
to the guilty from being punished and would escape
even when the offence of murder is proved. What,
therefore, is required to base a conviction for an
offence of murder is that there should be reliable and
acceptable evidence that the offence of murder, like
any other factum of death was committed and it
must be proved by direct or circumstantial evidence,
although the dead body may not be traced…”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s).1070 OF 2017

SANJAY RAJAK Vs  THE STATE OF BIHAR 

NAVIN SINHA, J.
Dated:July 22, 2019.

The appellant assails his sentence and conviction under
Section 364(A) I.P.C to rigorous imprisonment for life with a default
stipulation. Coaccused
Balram convicted by the Trial Court has
been acquitted by the High Court. Consequently, the appellant has
been acquitted of the charge under Section 120B I.P.C.
2. The victim, according to the prosecution case was a school
going child aged about 56
years. According to the allegations, he is
said to have been kidnapped from the school on 12.04.2007 at

about 12:15 pm. by the coaccused
Balram. The appellant and the
coaccused
were last seen together along with the victim. In their
confessional statement both the accused disclosed that after
kidnapping the child they had killed him and buried the corpse in
the bed of river Saryu at Chhapra. The police did not make any
effort to recover the body. The belongings of the deceased victim
were recovered from the house of the appellant.
3. Learned counsel for the appellant submitted that according to
PW10,
the classmate of the deceased, coaccused
Balram had
kidnapped him from the school. PW11
and PW12,
the parents of
the victim had further deposed that ransom calls were made by
Balram. Acquittal of the coaccused
makes the conviction of the
appellant unsustainable. Reliance on PWs. 5, 8 and 9 that the
victim was last seen with the appellant is based on a preponderance
of probabilities only. PW5
had deposed having seen the appellant
along with Balram and the victim. The prosecution case against the
appellant is based on circumstantial evidence with the link in the
chain of events being incomplete. The failure to take any step for

recovery of the dead body leaves it open to doubt whether any such
incident of kidnapping had occurred or not. Reliance in support of
the submissions was placed on Sattatiya alias Satish Rajanna
Kartalla vs. State of Maharashtra, (2008) 3 SCC 210, Lohit
Kaushal vs. State of Haryana, (2009) 17 SCC 106 and Iqbal and
another vs. State of Uttar Pradesh, (2015) 6 SCC 623.
4. Learned counsel for the State submitted that the acquittal of
coaccused
Balram is irrelevant in the nature of the evidence
available against the appellant. His conviction therefore calls for no
interference.
5. We have considered the submissions on behalf of the parties
and carefully perused the materials on record. PW10,
aged about
8 years and a classmate of the victim deposed that while both of
them were standing at the gate of the school at about 12 o’clock, a
man with his face covered with a napkin approached the victim and
told him that his 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 icecream
and took the victim away. PW11
and
PW12
Manoj Kumar, the parents of the victim have deposed that
the acquitted accused Balram had worked as a servant in their
house earlier. In the aforesaid facts, the significance of the victim
addressing Balram as “Uncle! Uncle!”, cannot be lost sight of and
unfortunately did not fall for consideration by the High Court at all.
Being acquainted with the coaccused,
the child naturally went
along without any qualms in this background.
6. PW11
and PW12
deposed that Balram had made calls on
mobile demanding ransom. Balram having worked earlier in the
house of the witness, we find no infirmity in their statement of
having recognised his voice. Every individual has a distinctive style
of speaking which makes identification by those acquainted
possible. Identification of a known person by voice in the darkness
has been well recognized in criminal jurisprudence. Even if a
person tries to camouflage his voice in one call, given the limitations
of human nature there will be a tendency to state certain words or
sentences in an inimitable style exposing the identity. The High

Court without considering the aforesaid factors, unfortunately
granted acquittal opining that no recorded voice sample was
available.
7. PW 5, the liquor shop owner deposed that on the day of
occurrence itself the appellant and Balram had come to his shop to
purchase liquor. The appellant introduced Balram as his relative.
They were accompanied by a boy aged 56
years wearing pink shirt,
blue pant, blue socks, black belt, red tie. They consumed liquor at
his shop for about two hours and then left along with the child.
Nonetheless Balram has been acquitted by the High Court on the
reasoning that his identity as the abductor could not be established
as PW10
stated that the abductor had his face covered with a
napkin and therefore the dock identification was doubtful. The
prosecution has not chosen to challenge the acquittal. The mere
acquittal of a coaccused
in the facts and circumstances of the case
can be of no benefit to the appellant.

8. PW8
deposed that the appellant had come to his hotel with a
child aged 56
years and requested for food to be served. Likewise,
PW9
also deposed having seen the appellant with the child.
Subsequently in the evening when he saw the photograph of the
missing child on the television, he was able to identify the child
accompanying the appellant. The witness then went to the police
station to give information. The house of the appellant was raided
in presence of seizure witnesses PW6
and PW7.
The black
coloured school bag of the victim was recovered from the house of
the appellant. The school diary and copies inside the same bore the
name of the victim. The school diary also contained his home phone
number and the mobile number of his father. The recovered items
were identified by PW12,
the father of the victim. The appellant
offered no explanation about the aforesaid recoveries, except for
denying the same.
9. It is not an invariable rule of criminal jurisprudence that the
failure of the police to recover the corpus delecti will render the
prosecution case doubtful entitling the accused to acquittal on

benefit of doubt. It is only one of the relevant factors to be
considered along with all other attendant facts and circumstances
to arrive at a finding based on reasonability and probability based
on normal human prudence and behavior. In the facts and
circumstances of the present case, the failure of the police to
recover the dead body is not much of consequence in the absence of
any explanation by the appellant both with regard to the victim last
being seen with him coupled with the recovery from his house of the
belongings of the deceased. Rama Nand and others vs. State of
Himachal Pradesh, (1981) 1 SCC 511, was a case of
circumstantial evidence where the corpus delicti was not found.
This court upholding the conviction observed:
“28…..But in those times when execution was the
only punishment for murder, the need for adhering
to this cautionary rule was greater. Discovery of the
dead body of the victim bearing physical evidence of
violence, has never been considered as the only mode
of proving the corpus delicti in murder. Indeed, very
many cases are of such a nature where the discovery
of the dead body is impossible. A blind adherence to
this old “body” doctrine would open the door wide
open for many a heinous murderer to escape with
impunity simply because they were cunning and
clever enough to destroy the body of their victim. In
the context of our law, Sir Hale’s enunciation has to
be interpreted no more than emphasising that where

the dead body of the victim in a murder case is not
found, other cogent and satisfactory proof of the
homicidal death of the victim must be adduced by
the prosecution. Such proof may be by the direct
ocular account of an eyewitness, or by circumstantial
evidence, or by both. But where the fact of corpus
delicti i.e. “homicidal death” is sought to be
established by circumstantial evidence alone, the
circumstances must be of a clinching and definitive
character unerringly leading to the inference that the
victim concerned has met a homicidal death. Even
so, this principle of caution cannot be pushed too far
as requiring absolute proof. Perfect proof is seldom to
be had in this imperfect world, and absolute
certainty is a myth. That is why under Section 3 of
the Evidence Act, a fact is said to be “proved”, if the
court considering the matters before it, considers its
existence so probable that a prudent man ought,
under the circumstances of the particular case, to
act upon the supposition that it exists. The corpus
delicti or the fact of homicidal death, therefore, can
be proved by telling and inculpating circumstances
which definitely lead to the conclusion that within all
human probability, the victim has been murdered 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 not
found yet conviction was upheld observing:
“5….In a trial for murder it is not an absolute
necessity or an essential ingredient to establish
corpus delicti. The fact of death of the deceased must
be established like any other fact. Corpus delicti in

some cases may not be possible to be traced or
recovered. Take for instance that a murder was
committed and the dead body was thrown into
flowing tidal river or stream or burnt out. It is
unlikely that the dead body may be recovered. If
recovery of the dead body, therefore, is an absolute
necessity to convict an accused, in many a case the
accused would manage to see that the dead body is
destroyed etc. and would afford a complete immunity
to the guilty from being punished and would escape
even when the offence of murder is proved. What,
therefore, is required to base a conviction for an
offence of murder is that there should be reliable and
acceptable evidence that the offence of murder, like
any other factum of death was committed and it
must be proved by direct or circumstantial evidence,
although the dead body may not be traced…”
11. Sattatiya (supra) is completely distinguishable on its own
facts as there was no credible evidence with regard to the last seen
theory. The recovery of the weapon of the offence was disbelieved
as no disclosure statement under Section 27 of the Evidence Act
was brought on record and the recoveries were effected from an
open place. Likewise in Lohit Kaushal (supra) the appellant was
made an accused on confession of a coaccused.
But the vehicle
allegedly recovered from the appellant was found not to be involved
in the kidnapping. There was no evidence with regard to the

appellant having been involved in the kidnapping and taking away
of the child. In Iqbal (supra) it was held that identification parade
was not substantive evidence and apart from the same there was no
other incriminating evidence like recovery of articles from the
appellant.
12. We therefore find no merit in this appeal. The appeal is
dismissed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
July 22, 2019.

Print Page

No comments:

Post a comment