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PETITIONER: RAJINDER KUMAR AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 04/05/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS KAPUR, J.L. DAYAL, RAGHUBAR

CITATION:  1966 AIR 1322            1963 SCR  (3) 281

ACT: Murder--Motive  note established--Want of proof  of  motive, not  a reason for doubling evidence of  crime--Indian  Penal Code (Act 45 of 1860), ss. 201, 802.

HEADNOTE: The first appellant was convicted under s. 302 of the Indian Penal  Code  for the murder of a three and a half  yea.  old boy, T, and sentenced to death, while his father, the second appellant,  was convicted under s. 201 for having  concealed T’s dead body.  The prosecution case was that on January  5, 1961,  between 3-30 p.m. and 4 p.m. when T was at the  house of  the appellants and the other inmates of the  house  were away,  the  first appellant killed T by stuffing  his  mouth with  a cloth and kept the dead body in the garage in  their house; and that on that very night he and his father  buried the  dead body in the compound after putting it in  a  gunny bag.  The evidence showed that a few days before January  5, 1961,  relations between the first appellant and T’s  father had  become strained because the first appellant had  talked to T ’ Is mother in a way which her husband did not like and the  latter asked the first appellant to stop his visits  to their house; and T who used to be a frequent visitor to  the first appellant stopped his visits for some days, but resume them  three or four days before January 5; and that on  that day  T was last seen alive at about 3-30 p m. in  the  first appellant’ house playing with him.  Both the trial court and the  High  Court found that the prosecution case  was  fully established  by  the  evidence.  It was  contended  for  the appellants  that the findings of the lower courts  were  not justified,  and that no reasonable motive for the crime  had been proved. Held,  that the appellants had been rightly convicted;  that though  the motive for the murder does not appear  from  the evidence. that can be no reason for doubting the  conclusion which  flows,  clear  from the  circumstances.   The  motive behind  a crime is a relevant fact of which evidence can  be given;  absence of motive is also a  relevant  circumstance. That  has to be considered along with  other  circumstances. It  often  happens that only the culprit  knows  the  motive behind his action.

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282

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 182 of 1961. Appeal  by special leave from the judgment and  order  dated September  7, 1961, of the Punjab High Court, Chandigarh  in Criminal Appeal No. 595 of 1961 and Murder Reference No.  56 of 1961. A.  S. B. Chari, Om Prakash Passey and K. R.  Chaudhri,  for the appellants. Gopal Singh and P. D. Menon, for the respondent. 1962.  May 4. The Judgment of the Court was delivered by DAS  GUPTA,  J.-Three  and a half year  old  Tonny,  son  of Ravindernath  Goyal was last seen alive on January 5,  1961. A  month  later  on  February 5, 1961,  his  dead  body  was discovered,  buried in the compound of the house of  Goyal’s next  door  neighbour Jagdish Chander  and  Rajinder  Kumar. These two, Jagdish Chander and Rajinder Kumar are father and son.   Tonny’s body was found in a gunny bag with  a  blood- stained piece of cloth stuffed in the mouth; a blood-stained towel  was also found in the bag.  When the  cloth  stuffing the  mouth  was removed the tongue was found pushed  to  the left  side backward looking the throat. ,The Civil  Surgeon, Bhatinda, who held the postmortem examination has given  his opinion  that  the death of the child was  due  to  asphyxia resulting from suffocation caused by packing the mouth  with the cloth. Rajinder  Kumar  ;has  been convicted under s.  302  of  the Indian  Penal Code for the murder of Tonny and sentenced  to death.  The father Jagdish Chander has been convicted  under a.  201  of the Indian Penal Code for having  concealed  the dead body of Tonny. 283 The  prosecution case is  that on January 5, 1961,  between 3-30  p.  m.  and 4 p. m. when Tonny was  at  the  house  of Jagdish  and,  Rajinder and the other inmates of  the  house were away Rajinder killed Tonny by stuffing his mouth with a cloth and, kept the dead body in the Garage in their  house- and  that that very night he and his father buried the  dead body in the compound after putting: it in a gunny bag.   For the  entire  month after the, child was  found  missing  and before his body was discovered frantic efforts had been made by the distracted parents and grandfather of Tonny to  trace him but in vain,.  Indeed, according to the prosecution, the two accused made a show of taking part in the search for the boy. The  details,  of  the prosecution story are  beat  told  by enumerating  the  circumstances  on  which  the  prosecution relied to prove its case that Rajinder killed Tonny. (1)  A  few days before January 5,  1961  relations  between Rajinder  Kumar on the one hand and Tonny’s father  Ravinder Kumar on the other had become strained because Rajinder  had talked to Tonny’s mother in a way which her husband did  not like and Ravinder asked Rajinder to stop his visits to their house.   After this Tonny who used to be a frequent  visitor to Rajinder, whom he called "’uncle" also stopped his visits for some days; but then three or four days before January 5, he  resumed  his  visits to Rajinder as  Rajinder  had  been giving  him  sugar drops. (2) Tonny was last seen  alive  at about  3-30.  p.  in.  in  Rajinder’s  house  playing   with Rajinder. (3) At that time Rajinder’s wife, his father,  his sister and his servant Bhagat Ram were away from the  house,

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Bhagat  Ram  having been actually sent out  by  Rajinder  at about 2-30 p. in. (4) At about 4 p. M. Tonny’s mother  Sudha called out to Tonny after preparing the tea 284 but not getting any response asked Rajinder Kumar, whom  she saw  coming  from the direction of the Garage  as  to  where Tonny was. (5) Rajinder Kumar said that Tonny had gone  with his  wife  to the house of Jagdish Goyal.   Rajinder’s  wife came  back  to the house just at that time and in  reply  to Sudha  said  that Tonny had not gone with her but  had  been playing  about with her husband.  Sudha then enquired  again from Rajinder about Tonny and he said Tonny might have  gone to  the shop of Baba to fetch a toast. (6) At the same  time Bhagat  Ram  returned with his cycle and wanted to  keep  it into  the  Garage but finding that Rajinder had  looked  the Garage he asked him to open the lock but Rajinder asked  him to  put the cycle in the house saying that he had  put  some important  articles in the Garage and so would not open  the lock.  (7) That night Bhagat Rain slept in the  kitchen  and Rajinder  Kumar  who Lad gone out of the house  after  4  O’ clock  pretending  to  take part in  the  search  for  Tonny returned  home  at 12 midnight and put on the light  in  the kitchen where Bhagat Ram had laid himself down and asked him why  he had not gone to sleep. (8) At about 2 O’ clock  when Bhagat  Ram  came  out to answer a call  of  nature  he  saw Rajinder  and his father in front of the Garage  talking  to each  other  but  they kept quiet when  he  drew  near.  (9) Rajinder  remained outside the house for about  another  two hours during which Bhagat Ram was awake. (10) On January  9, Rajinder met Raj Kumar a teacher in a primary school on  the bridge  in Mohalla Jori Bhatia and asked for his  assistance in  removing the dead body of the child after confessing  to him that he had murdered him. (11) Rajinder was interrogated by the police on the 3rd and 4th February, and ultimately on the 5th February when he was taken by the Police to his  own house  he made a statement that he had buried the dead  body of the child at a distance of 6 to 7 ft. from the main 285 gate towards the right, wrapped in a gunny bag close to  the Gul  Mohar  tree.  (12) Then Rajinder Kumar  pointed  out  a place, dug there about 4 ft. deep and Tonny’s body was found there  in  a gunny bag with his own garments on and  with  a banian  thrust  in his mouth. (13) There was  also  a  towel which has been identified by Bhagat Ram as belonging to  the accused Rajinder Kumar, inside the bag. (14) Human blood was detected  on  the banian towel and the bag as  also  on  the garments on the body of the child. Both the accused pleaded not guilty and urged that they  had been implicated falsely on unjustified suspicion. The  Trial  Court as also the High Court found  all  the  14 circumstances mentioned above fully established by evidence. Mr.  Chari,  who appeared before us, on behalf of  both  the appellants,  does  not contest that if  these  circumstances have  been proved they fully justify the conclusion  reached by the courts below.  He, however, tried to persuade us that the   High  Court,  was  wrong  in  finding  some   of   the circumstances, at least, to have been proved. It  appears  to us that if no other circumstances  than  the second, fifth and twelfth circumstances mentioned above have been  proved  they  are by  themselves  sufficient,  without anything more, to justify the conclusion that Rejinder Kumar murdered Tonny.  If Tonny was last seen with him at 3. 30 p. m.  on  the 5th and the dead body is discovered in  his  own house  buried under the earth and this fact is known to  him and  it is further found that about 4 p. m., on the  5th  he

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made  contradictory statements as to where Tonny  had  gone, these  three circumstances are incapable of  explanation  on any other reasonable hypothesis than that he killed the  boy between 3.30 and 4 p.m. 286 on that day and some time later buried, the body.  Mr.  Mari suggested  that it might be that Tonny was killed  somewhere else by some unknown person and then that killer found  some opportunity  of bringing the dead body into the  appellant’s house and buried it there.  This appears to us as an  absurd suggestion hardly worth serious consideration.  If  somebody else  killed Tonny elsewhere, what could be the reason  for. his  taking  the  trouble  of  carrying  the  body  to   the appellant’s house and burying it there at the risk of  being surprised by somebody before he had finished the job ? Apart from  that  the  fact remains, as proved  beyond  shadow  of doubt,  that  the place where the body had been  buried  was known  to Rajinder and it was Rajinder himself who  dug  the ground.  at  the right place for the recovery of  the  body. Mr.Chari drew our attention to the statement of  prosecution witness.   No..  5 Mrs. Gurdeep Kaur Girin that  the  police came  to  the  house  of the accused  two  days  before  the recovery;  of the child’s deadbody and that some  pits  were dug  by the police on that day and. that Rajinder  was  with them.  All the police officers have denied that any  digging was  done  before the 5th.  It seems to us clear  that  Mrs. Gurdeep  Kaur while giving evidence in June 1961 has made  a mistake  about the date on which she saw the  digging  being done.   But even assuming that what she says was correct  it would, not show that Rajinder did not know the’ place  where the  body had been kept;: it would; merely show  that.  even then he was keeping quiet about it. Some  comment  has been made by the learned Counsel  on  the failure  of  the- police to discover  by  themselves  during their  numerous  visits to the appellant’s  house  that  the ground  was disturbed.  We find nothing surprising in  this. Few people Dot even the police officers who had some  suspi- cion  against the accused from the very commencement of  the investigation would expect the accused 287 to be so daring as to bury the dead body in the compound  of his own house.  The fact that any disturbed condition of the ground  was  not  discovered by the police  before  the  5th February  can  be therefore no ground for thinking,  as  the learned  Counsel  suggests, that the body had  been  brought there from somewhere else shortly before the 5th. While we think the few circumstances mentioned above are  by themselves sufficient to justify the conviction of Rajinder Kumar  under  s. 302 of the Indian Penal Code, we  think  it proper  to add that nothing has been shown to us that  would justify us in interfering with the conclusion of the  courts below  that  the  6th, 7th, 8th and  the  9th  circumstances mentioned above have also been proved.  Mr. Chari wanted  us to believe that Bhagat Ram was taken into police custody  on the  31st January and it is strange that his  statement  was not  recorded by the police before the 5th February.   The High  Court  has believed the evidence of the  Inspector  of Police, Ram Nath Paras, that Bhagat Ram was not available at Patiala  for  recording  of  his  statement  till  the   7th February, 1961 and we cannot see anything that calls for our reappraisal of the evidence on this question. The criticism levelled by Mr. Chari against the evidence  of prosecution  witnesses  Raj  Kumar  and  Mahabir  Dayal  for proving   the  10th  circumstance  mentioned   above   about Rajinder’s  extra-judicial  confession  is  more  plausible.

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These  two  witnesses are on their own  showing  persons  of shady  character and they would not, be above  giving  false evidence  to  oblige the police, if the  police  wanted  it. But,  it is difficult to see why the police should think  it necessary to secure the services of these persons for giving false  evidence  when the  practically  conclusive  evidence afforded   by  the  discovery  of  the  dead  body  in   the appellant’s compound was already 288 there.   The  story  of  the  extra-judicial  confession  of Rajinder  Kumar,  as  given by Raj Kumar  and  supported  by Mahabir  Dayal is therefore likely to, be true.  But  it  is really  unnecessary for the purpose of the present  case  to examine  the question further.  For, any support  from  this 10th circumstance regarding the extra-judicial confession is not needed by the prosecution. What  moved Rajinder Kumar to commit this dastardly deed  is not  clear.  The strained relations between  Tonny’s  father Ravinder on the one hand and Rajinder on the ’Other  because the  former  had  asked  Rajinder  to  stop  his  visits  as mentioned in the first circumstance specified above does not explain his action.  Let us assume, however, that even  this evidence of strained relations had not been given.  That can be no reason for doubting the evidence, as regards the other circumstances  that  has been adduced or for  hesitating  to draw  the  inescapable  conclusion from  them.   The  motive behind a crime is a relevant fact of which evidence  can  be given.   The  absence of a motive is a also  a  circumstance which   is  relevant  for  assessing  the   evidence.    The circumstances which have been mentioned above as proving the guilt  of the accused Rajinder are however not  weakened  at all  by this fact that the motive has not been  established. It  often happens that only the culprit himself  knows  what moved him to a certain course of action.  This case  appears to be one like that. We  are  satisfied  that Rajinder  Kumar  has  rightly  been convicted  under  s.  302  of  the  Indian  Penal  Code  and sentenced to death. The  case  against  Jagdish Chander rests  on  Bhagat  Ram’s evidence.   This witness, a youth of seventeen,  joined  the service  of the accused about 5 or 6 months  before  January 1961.  He was a servant in the house on the 5th January.  He has  289 given evidence that when on that day at about 9 or 10 p.  m. he asked for the key of the Garage to bring out his  bedding which was there the appellant Jagdish said that he would  do it  himself  and actually brought out the bedding.   He  has further said that when at about 2 O’clock he got up to  make water he saw Rajinder and his father, walking about in front of the Garage, that they were talking to each other but kept quiet when he went out; and also that he could not sleep for about a couple of hours after that and that during all  this time both the father and son-Rajinder and  Jagdish--remained outside the house.  We have already stated above that  there is no reason for us to interfere with the view taken by  the courts below that Bhagat Ram’s evidence should be  believed. Once that is believed the conduct of Jagdish as proved by it becomes  incapable’ of explanation on any  other  reasonable hypothesis than that after coming to know that Rajinder  had murdered  Tonny  he helped Rajinder in concealing  the  dead body  by burying it underground.  Mr. Chari  suggested  that Rajinder  might have told his father that the boy  bad  died accidentally on receiving an electric shock and the  learned Counsel  drew our attention in this connection to  the  fact

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that  an  electric wire made into a ring was  found  on  the thumb  of  the  dead body.  The  medical  examination  shows however  that  this wire had nothing to (lo with  the  boy’s death.   Mr.  Chari accepts that position, but  argues  that still  Rajinder might have falsely told his father that  the death was due to electrocution.  There might have been  some force  in  this  argument were it not for the  fact  that  a blood-stained  banian was found stuffed in the mouth of  the boy  and a blood-stained towel was also found in  the  gunny bag.   There  is therefore no scope for  the  argument  that Jagdish was misinformed by his son Rajinder about how  Tonny had met his death. e circumstances that have been proved clearly 290 establish the prosecution case that Jagdish after knowing-on the  January 5, 1961, that an offence had been committed  by the  murder of Tonny caused some evidence of the  commission of that offence to disappear with the intention of screening the  offender from legal punishment.  He has therefore  been rightly convicted under s. 204 of the Indian Penal Code  and the sentence passed on him is proper.        The appeal is accordingly dismissed.                 Appeal dismissed.