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PETITIONER: PREM PRAKASH MUNDRA

       Vs.

RESPONDENT: STATE OF RAJASTHAN AND ANR.

DATE OF JUDGMENT:       03/02/1998

BENCH: G.T. NANAVATI, B.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                             WITH             CRIMINAL APPEAL NOS. 679-80 OF 1990                       J U D G M E N T Nanavati, J.      These four  appeals arise  out of  the same judgment of the Rajasthan  High Court in D.B.Criminal Reference No. 1/89 and D.B.Criminal Appeal No. 14/89. Criminal Appeal Nos. 666- 67/90 are  filed by  the father of deceased Babloo for whose murder the  respondent - Bhagirath and one Gopal were tried. The other  appeals are  filed by  the State.   In  all these appeals,  the   acquittal  of   Bhagirath  for  the  offence punishable under Section 302 IPC is called in question.      The charge against Bhagirath was that as he was removed form service  by Prem  Prakash  Mundra,  he  bore  a  grudge against Prem Prakash and by way of revenge, he kidnapped his son Babloo  on 2.9.1986  at about  6.00p.m. and subsequently killed him  and buried  the dead  body near  the  Rudreshwar Mahadev temple  on the  river bank. It was also alleged that he committed  those acts  along with  co-accused Gopal.  The prosecution examined  some witnesses  to prove that they had seen Bhagirath taking Babloo on a cycle. There was no direct evidence to prove the murder.      The  trial   court  held   that  the   prosecution  has satisfactorily established  that Bhagirath  had a  motive to kidnap and  kill Babloo  and that the circumstances, namely, that he  was last  seen in the company of Babloo and that he had pointed  out the place where the dead body of Babloo was buried were  not only  sufficient for  convicting him  under Section 364  IPC but  also for  his conviction under Section 302 IPC. It then awarded sentence of death. The trial court, however, held that the evidence against co-accused Gopal was not sufficient  to establish  his  participation  either  in kidnapping or  in  the  murder  of  Babloo.  It,  therefore, acquitted him.      As death sentence was awarded to Bhagirath, a reference was made  by  the  trial  court  to  the  High    Court  for confirmation of  theat sentence.  Bhagirath also  challenged his conviction  under Section  364 IPC by filling an appeal. The High  Court disposed  of both  the  cases  by  a  common judgment. The  High  Court  agreed  with  the  finding  that

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Bhagirath had  a motive  to commit  the offence and that the circumstance that Bhagirath  had pointed out the place where the dead  body of Babloo was buried was not an incriminating circumstance against  him as   he had not stated that he had buried the  dead body.  The High Court, therefore, held that the trial  court had committed an error in relying upon this circumstance and  convicting him  for the offence punishable under Section  302 IPC.  Taking this  view  the  High  Court acquitted Bhagirath  of the offence punishable under Section 302 IPC. His conviction under Section 364 was altered to one under Section  365.  The  accused  had  not  challenged  his conviction under  Section 365  and we  are told  that he has already serve out six years imprisonment for that offence.      It was  contended by  the learned counsel appearing for the appellant  - Prem Prakash and by the learned counsel for the State  that the  High Court  committed an  error in  not placing reliance  upon the circumstance that the accused had buried the  dead body  and that  it  was  recovered  at  his instance. They  submitted that the Investigating officer has categorically stated  in his  evidence that  the accused had made a statement before him that he had buried the dead body in the  river bank  near the  Rudreshwar Mahadev  temple and there was  no good  reason to  disbelieve him.  It was  also submitted that  even otherwise  that the  fact that  it  was recovered at  his instance ought to have been regarded as an incriminating circumstance  and that circumstance along with the other  circumstances ought  to have been held sufficient for upholding the conviction under Section 302 IPC.      The finding  that he accused had a motive to commit the offence is  well supported  by the  evidence on  record. The evidence of  PW-14 Kavita,  PW-15 -Gopal  Bhandari, PW-19  - Bherulal, PW-20 - Ramesh Chandra and PW- 1- Rooplal has also established beyond  doubt that  the accused  had taken  away Babloo on  a cycle, from the place where he was playing just by the  side of  his house  to the room in which the accused was  staying.   The  evidence  of  these  witnesses  further establishes that Babloo was with him till about 8.00 P.M. It was contended by the learned counsel for the appellants that these  circumstances,   together   with   absence   of   any explanation by  the accused  as to when he left Babloo, were sufficient for  convicting accused  Bhagirath under  Section 302 IPC.  I was  also contended  that the High Court was not justified in  not placing any reliance upon the circumstance that Bhagirath had pointed out the place where Babloo’s dead body was buried.      We  have   read  the   statement  as  recorded  by  the Investigating officer  and also its translation. Accused has not stated  therein that  he had  buried the  dead body. The Investigating officer  was, therefore,  not  right  when  he deposed that  the accused  had stated  to him  that  he  had buried the  dead body  of Babloo. The statement was not made in presence  of any  independent witness. The explanation of the accuse  was that  he had  come to  know about that place from the  talk among  Hemant, Pravin,  Rajesh and Sushil who were with him in the lock-up. He also stated that he had not voluntarily taken  the  police  to  hat  place  but  he  was forcibly taken there. The Investigating officer has admitted that he  had recorded  statement  of  Rages.  Therefore,  it becomes doubtful  that the dead body was really recovered as a result of information given by the accused. The High Court was, therefore,  right in  holding that only conclusion that could be drawn from the statement of the accused was that he knew that place where the dead body was buried and as he had not stated  that he had buried it, he could not be connected with the offence on the basis of that circumstance.

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    The other  two circumstances  were rightly  regarded as not sufficient  for convicting the accused under Section 302 IPC. The  material on  record discloses  that  probably  co- accused Gopal  was also  with him  till 8.00P.M. Though PW-1 denied in  his evidence  that he  had seen Gopal also in his evidence that  he  had  seen  Gopal  also  in  the  room  of Bhagirath when  he had  gone there on hearing a chile crying in that  room, it   has  been  brought  out  in  his  cross- examination that he had stated like that to the police. That creates a  doubt regarding  the circumstance that Babloo was last seen  in the  company of  Bhagirath alone at about 8.00 P.M. on  2.9.1986. The  dead body  was found on the next day int he  afternoon. For  all these reasons, the view taken by the High Court cannot be regarded as unreasonable.      All these appeals are, therefore, dismissed.