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PETITIONER: STATE OF U.P ETC.

       Vs.

RESPONDENT: BAL KISHAN DAS & ANR.

DATE OF JUDGMENT:       29/10/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT: Present:               Hon’ble Mr Justice M.K.Mukherjee               Hon’ble Mr  Justice S.P.Kurdukar      (Pramod Swarup,)Adv.  for(A.S.Pundir)  Adv.,  Ms,Prerna Swarup and Prashant Choudhary; Adv. for the appellant      R.P.Gupta, Adv. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered      M.K.MUKHERJEE, J.      These three  appeals have  been heard together as  they arise out  of a  common Judgment  rendered by the  Rajasthan High Court  disposing of  three criminal     appeals.  Facts relevant for disposal of these appeals  are as under.      Rama, (deceased) was the daughter of Shri S.S. Kela (PW 35) and  Smt. Vimlawati  (PW 33)  of Kasganj,  District Etah (U.P.). She  held a post graduate degree in Hindi literature and was  active in  games. On May 6, 1981 she was married to Suresh Narain  of Saharanpur  (U.P.) and  since then she was living with  her husband  in the  house of  her  in-laws  at Mohalla Memaran (Khalapur) in Saharanpur.      In the  following year  (1982) the  festival of  ’Holi’ fell on  March 9;  and as, according to the custom prevalent in their  community Rama could not celebrate the festival in the first  year of her marriage in the house of her in-laws, her father  came to  fetch her.  Her in-laws however did not permit her  to go  with her father but sent her to the house of her  elder sister  Smt. Malti  Devi  (P.W  30),  who  was married to one Satish Kumar and was living in a neighbouring Mohalla. Rama  however came  back to her matrimonial home on the following day (March 10, 1982).      In the  afternoon of  March 14,  1982, Bal Kishan Dass, father-in-law of  Rama, lodged  a report  (Ex.P.31) with the Kotwali (City)  Police Station  to the  effect that  she was missing from  the house  and in  spite of their best efforts they were  unable to  trace her whereabouts. It was reported that Rama  had retired  for the  night as  usual but  in the morning it  was found  that the  main door  of the house was wide open  and she  was not there. It was also reported that she was  a victim cf occasional fits for which she was being treated. It  was further mentioned that when she went to bed

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in the  previous night  she was wearing a red printed cotton saree, a  sweater of  orange colour, ear-rings, a neckchain, some glass-bangles  of ’maroon’  colour, two golden rings on the fingers,  silver ’paizeb’  on ankles  and   ’Bichwas’ on toes. Along  with the  report, her  photograph (Ex.P.33) was also handed  over to  the police.  Before lodging the report Bal Kishan  Dass had  sent  telegraphic  message  to  Rama’s father. Similar  messages were  also sent to Khamgaon in the State of  Maharashtra where  Suresh Narain, husband of Rama, was supposed  to have gone in the night of March 10, 1982 to attend a marriage and other places where Suresh was expected to visit after attending the marriage.      On  getting   information  from  Mahesh  Narain,  elder brother of  Suresh, that  Rama was  missing Malti along with her husband  Satish went  to the  house of  Bal Kishan.  She however was  not satisfied with the explanation given by the mother-in-law of  Rama about  her  disappearance.  Returning therefrom she  and her  husband telephonically contacted Dr. S.S. Rathi (P.W.12), a professor of Delhi University to whom Rama’s another  sister Sushma  was married.  Dr.  Rathi  was requested to  inform Shri  Kela  at  Kasganj  also.  On  the following day  (March 15,  1982) Shri  Kela, Dr.  Rathi  and Kanti  Chand   (PW  34),  elder  brother  of  Rama,  reached Saharanpur. Since  Shri Kela was also not satisfied with the story of  mysterious disappearance  of Rama  as given out by the members  of her husband’s family he lodged a report with the Saharanpur  police station  on the  same day (Ex.P.161). Therein he  stated that  when he  last met  her she told him that she  was being  tortured by  her in-laws.  It was  also stated in  the report  that earlier two of the daughters-in- law  of   bal  Kishan   Das  had   died   under   mysterious circumstances. Accordingly,  Shri  Kela  asked  the  Station House Officer to make a proper investigation into the matter in the light of the information given by him.      On March  16, 1982, Bal Kishan Dass met Shri M.S. Bali, the Addl.  Superintendent of  Police, Saharanpur  and handed over to  him an application (Ex.P.41) along with an ’Inland’ letter (Ex.P.59), which he claimed to have received by post. The inland letter, which was addressed to Bal Kishan Dass by one Ahmed  Hasan, gave  the information  that his son‘s wife Smt. Rama was in his custody and that she would be sent back only after  he was  paid two lacs of rupees. He (Bal Kishan) was warned  that any report to the Police and failure to pay the required  ransom at  the desired place by March 18, 1982 would cost  the life  of the  kidnapped  lady.  The  alleged abductor of  Rama had  asked him  to enquire  of his address from Bharat  Steels, Dehradoon  Chowk, Saharanpur. Shri Bali directed the Kotwali (City) Police Station to take necessary action in the matter.      Since no  action was  taken by the Saharanpur police to trace out  Rama her relatives decided to approach the higher authorities. Accordingly,  Dr. Rathi  held  talks  with  his colleague Dr. K.S. Shukla (P.W.1l), Dean of Students Welfare in Delhi  University and  apprised him of the matter; and on March 24,  1982 along  with others met the Minister of State for Home  Affairs of  the Government of India. After getting an assurance  from the  Minister that he would look into the matter when  they were  returning from  the Parliament House they met  some press  reporters and  gave them  the news  of Rama’s missing.      In the  meantime, on  March 17,  1982 at  or about 1.00 A.M. when  Kali Ram  (P.W.5), a Sanitary Jamadar, along with his men  was washing  platform No.  1 of  New Delhi  Railway Station he  found a  green coloured hold-all lying abandoned and unclaimed  near a  bench in front of the II Class Ladies

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Waiting Room.  When he  tried to  keep it  aside he found it heavy and  emitting bad  smell. Suspecting some foul-play he sent information  to the  Police Head Constable Kartar Singh (P.W.2) of  the Railway  Police Station  who, in  his  turn, informed Station House Officer (S.H.O.) Ram Swaroop Yadav (P.W.38). On  getting the  information Shri  Yadav rushed to the site of the hold-all along with other police personnel.      On opening  the hold-all  he first  found a large gunny bag (Art.4)  tied with  a rope  (Art.15) beneath  it another small gunny  bag (Art.3)  and then a gadda (Art.2). When the large gunny  bag was  opened a decomposed and swollen corpse of a  woman aged  about 25/26  years came out. On inspection Shri Yadav found that the decomposed had a red printed saree (Art.5), a  yellow petticoat  (Art.7), a  woolen sweater  of ’BADAMI’ colour (Art.6) and a yellow cotton blouse under the woolen blouse  (Art.8) on  her person.  Besides, there  were some glass  bangles of  red colour  (Art.12) around her left wrist and a few broken pieces of such bangles (Art.13).      Shri Yadav  than recorded  the statement  of  Kali  Ram Jamadar (Ex.34) and forwarded the same to the police station for registering  a case.  Kartar Singh H.C. registered Crime No. 87/82  under Section  302 IPC vide F.I.R. Ex.P.3 at 3.26 A.M. Shri Yadav got photographs of the dead body taken, held inquest  upon   it  and   then  sent   it  for  post  mortem examination. He  seized the  holdall, the  gunny  bags,  the gadda and the broken bangles and sealed them.       Dr.  L.T. Ramani  (PW 17) held post mortem examination on the  same day  and found that the deceased was aged about 25 years,  medium complexioned  (on fairerside), with a well built body and of a height of 5’-2". Besides the clothes and the bangles  mentioned above, he found a ’tilli’ in her left nostril. The body was decomposed and fluid was oozing out of the nostrils. Her eye-balls were decomposed, nails were blue and felling out and the tongue was protruding in between the teeth. He  removed the  coir rope  which was  encircling the neck and  found a  deep  constricting  groove,  horizontally placed on  the middle of the neck over the thyroid cartilage all around  the neck.  The width of the ligature mark varied from 1/2"  to 3/4" at places. On internal examination of the dead body  Dr. Ramani  found that  the  scalp  tissues  were normal, skull  bones were intact and brain was congested. On dissection of  the neck  tissues he  found effusion of blood there, hyoid bone intact and trachea contained fluid and was congested. The  ribs were  intact.  Lungs  showed  signs  of decomposition and  the heart was decomposed and the chambers were empty.  Dr. Ramani  opined that  the ligature  mark was caused by  the rope  present around  the neck  and was ante- mortem. He  further opined  that the ligature was sufficient to cause  death in  ordinary course  of nature  and that the deceased  had   died  due   to   asphyxia   resulting   from strangulation. As  the dead  body had  been reported to have been found  in a  hold-all Dr. Ramani opined that her  death had taken  place two to three days before. Later, on June 4, 1982, when  Shri Yadav  the Investigating   Officer, further enquired of  him whether the time  between her death and the autopsy could be more or less  that what he had mentioned in his report,  Dr. Ramani   it  could be 4 to 5 days but in no case it  could be  later than  the  time  he  had  mentioned earlier. Dr.  Ramani preserved  the viscera, scalp and pubic hair   and handed  over the  same to the constable in sealed condition. The  clothes and  the  glass  bangles  were  also handed over  to the  constable, but not in sealed condition, as they  were required for identification purposes. However, the ’tilli‘  was removed  from the nostrils of the deceased. On chemical  examination of  the viscera,  Dr.  K.S.  Chabra

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(P.W.25), Senior  Scientific Officer  cum Assistant Chemical Examiner of  the Central  Forensic Science  Laboratory,  New Delhi found that it was positive for methyl alcohol.      After the  post mortem  examination the  dead body  was kept in  the  mortuary  for  identification  and  a  Gazette notification in  that behalf  was also  published. Besides a pamphlet  entitled   ’Hue  and  Cry’  (Ex.P.172),  with  the photograph of  the dead  body and necessary  particulars and details  of  her  clothes,  was  published  and  circulated. Wireless  messages   were  also   sent  to   the      Police Commissioner and  S.Ps. all over the country as  also to all the police  stations in  Delhi. Letters  to   the press  and ’missing persons squad’ were sent for  getting clues for the identification of  the dead  body.   Since the dead body was not identified  within the  next   four days  its last rites were performed by a Sewa  Samiti.      On March  25, 1982, Shri S.R. Yadav, the  Investigating Officer, came  across a  news captioned     ’Vain search for Rama in  the Hindustan  Times (English)  in its issue of the above date  (Ex.P.43). From  the news  item he learnt that a deputation of  the Delhi  University   Teachers had  met the Minister of  State for  Home Affairs  in connection with the disappearance of  a lady called  Rama who was reported to be missing since  March 13,  1982. Since the names of Dr. Rathi (P.W.12) and  Dr.Shukla    (P.W.11),  besides  others,  were mentioned as  the members  of  the  deputation,  Shri  Yadav contacted them. Dr. Rathi and his wife Smt. Sushma could not however identify  the deceased either from the photograph or the clothes and bangles but they told Shri Yadav that Rama’s elder sister,  Smt.  Malti  Devi  who  was  also  living  in Saharanpur might  possibly be  in a  postition to  identify. Accordingly, Shri  Yadav requested Dr. Rathi and his wife to ask Smt. Malti Devi to come to Delhi.      On the  following day  Smt. Malti  Devi and her  father Shri Kela  (P.W.35) reached  the New  Delhi Railway   Police Station along  with Dr.  Rathi and  Dr. Shukla.    When  the photographs of  the deceased  were shown to them  they could not identify  but on  seeing the  clothes  and    the  glass bangles of the deceased, Smt. Malti Devi  identified them as belonging to  Rama. The  clothes and   bangles  having  been identified by  Smt. Malti  an  identification memo (Ex.P.44) was prepared  by Shri  Yadav   and  the  clothes  and  glass bangles which  had so far been  kept open for identification were duly  sealed. Later  on June 10, 1982 when the enlarged photographs of  the   dead body were shown to Smt. Malti and her father they  identified the same as those of Rama.      The identity of the dead body having been  established, Shri Yadav  went to  Saharanpur. There  he    contacted  Bal Kishan Dass  and Mahesh  Narain and brought  them to the New Delhi Railway  police station on March  29, 1982 to identify the belongings  of Rama.  At the  police Malkhana, when they were shown the clothes of the  deceased, they it is alleged, became nervous  and began  to look at each other. Shri Yadav then found  reasonable   grounds  to  suspect  them  in  the commission of  the murder   of Rama and, therefore, arrested them.      After their  arrest both  of them  are alleged  to have made certain  incriminating  disclosures.  Balkishandass  is alleged to  have made a statement leading to the recovery of a golden  chain (Art.20),  a pair of golden ’churies’ (Arts. 21 and  22), a  pair of  gold ear-rings (Arts. 23 and 24), a gold ring (Art.25 a pair of silver bichwas (Arts. 26 and 27) and a  pair of  silver ’Paizeb’  (Arts. 28  and 29)  from an almirah in  his house  at Saharanpur  which were  seized and sealed, The  ornaments were later on identified as belonging

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to the deceased. In course of further search of the house, 7 large gunny  bags were also recovered. Later Shri S.R. Singh (PW  22)   Senior  Scientific  Officer  Cum-Asstt.  Chemical Examiner to  the Government of India and head of the Physics Department Forensic  Science Laboratory,  New Delhi  on  his examination and  comparison of these gunny bags with the one in which  the dead  body of  Rama was found, opined that the bags were  quite similar  to each  other in  their ’physical measurements’ and  other        general/accidental  printing characteristics (Ext. P.99).      On interrogation  of the  above  two  accused  persons, namely, Bal  Kishan Dass  and Mahesh  Narain, it appeared to the Investigating  Officer  that  Suresh  Narain  and  Ashok Kumar, a  cousin of  Suresh Narain were also involved in the murder of  Rama.  Accordingly  he  also  arrested  them  and continued with  the investigation  in the  light of  further materials disclosed  in course  thereof.  On  completion  of investigation he  filed chargesheet  against  the  aforesaid four accused  persons before  the Chief Judicial Magistrate, Saharanpur who  committed the  case to the Court of Session, Saharanpur for  trial. Before,  however, the Sessions Judge, Saharanpur  could   commence  the   trial,  the   case   was transferred by  an order of this Court, to the Court of  the Sessions Judge  Bharatpur in  the State  of Rajasthan    for trial.      At the commencement of the triaI a charge under Section 120 B read with Sections 302 and 201 IPC was  framed against three of  the accused  persons, namely,  Bal   Kishan  Dass, Mahesh Narain  and Suresh  Narain. Against   Bal  Kishan and Mahesh Narain additional charges under  Sections 302 and 201 IPC and against Ashok Kumar only a  charge under Section 201 IPC was framed.      In the  absence of  any eye-witness  to bring  home the above  charges   the  prosecution   rested   its   case   on circumstantial evidence;  and for  that purpose  examined 42 witnesses and  exhibited 195  documents.  The  circumstances which the  prosecution relied upon to prove its case are  as under:      (i) Rama  was  seen  alive  in  her      matrimonial home  on March 12, 1982      by Smt.  Balloo (P.W.25),  who  was      then   working as  a  maid  servant      there;      (ii)  However,   on  the  following      morning (on  March 13)   Balloo did      not see  her in  the house;  and in      the same  afternoon when Smt Shobha      (P.W.41), a school friend of Rekha,      daughter of Bal Kishan Das, went to      meet her  she could  not also  find      her.      (iii) In  that night,  at or  about      9.30 P.M. Mahesh Narain was seen by      Rasul Ahmed  (P.W.9),  a  tea  shop      owner, to  go to the house of Ashok      Kumar.      (iv) At  or about  11 P.M.  in  the      same night  Mahesh Narain had hired      the rickshaw of Ishab Singh (P.W.8)      and brought it to their house;      (v) A  little later  Mahesh  Narain      and Ashok  Kumar had loaded a hold-      all (Art.l)  in that  rickshaw  and      carried  it   to   the   Saharanpur      Railway Station;

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    (vi) Some two hours later the above      two accused  persons were  seen  at      that Railway Station with the hold-      all by  Ghanshyam  Dass  Maheshwari      (P.W.10);      (vii} On  the following afternoon (      March 14, 1982) the   same hold-all      was   seen    by   Gursewak   Singh      (P.W.26), an   Electrical Fitter of      the Amritsar  Railway  Station,  on      platform No.3 of that station;      (viii) In  the same  afternoon  Bal      Kishan Dass  had  gone  to  Kotwali      Police  Station,  Saharanpur  along      with Mahesh   Narain  and lodged  a      false report  that Rama was missing      (Ex.P.31)      (ix) On  March 16,  1982 Bal Kishan      Dass and  Mahesh Narain  had handed      over an  application  (  Ex.  P/41)      along   with    a   ransom   letter      (Ex.P/59) which  was  a  fabricated      document,     to      the     addl.      Superintendent      of       Police      Saharanpur;      (x) The  application (Ex.P/41), was      typed by Anil Kumar (P.W.13) on his      typewriter at  the behest of Mahesh      Narain  and  Bal  kishan  Dass  and      signed by  the latter;  the  ransom      letter (Ex.P/59)  was also typed on      the same  typewriter after it  (the      typewriter) was  procured from Anil      Kumar by  Mahesh Narain  and  Ashok      Kumar on  the  pretext  of  getting      some confidential matters typed.      (xi) In  the night of March 17,1982      a  dead   body  of   a  woman   was      recovered from the hold-all (Art.1)      when it  was lying on platform No.1      of New Delhi Railway Station;      (xii) The  dead body  was  that  of      Rama,   as   testified   by   Malti      (P.W.30) and  her father  Shri Kela      (P.W.35).      (xiii)  Rama  met  with  her  death      owing to strangulation;      (xiv) Mahesh  Narain and Bal Kishan      Dass had  the opportunity to commit      the murder;      (xv) Bal Kishan Dass, Mahesh Narain      &  Suresh   Narain  had  hatched  a      conspiracy in  the evening of March      10,1982 to  commit  the  murder  of      Rama;      (xvi) Bal  kishan Dass  and his two      sons had  a strong motive to commit      the murder  as the  parents of Rama      failed to meet their dowry demands.      (xvii) Some  of the  ornaments that      Rama was wearing immediately before      her death  were recovered  from the      house of  Bal Kishan  Dass pursuant      to his statement;      (xviii) Seven  gunny bags,  similar

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    to the  one in  which the dead body      of Rama  was found,  were recovered      from the  house of  the Bal  Kishan      Dass; and      (xix)  Bal   Kishan  Dass  made  an      extra-judicial  confession   before      Kamta Prasad (P.W.31).      The common  defence of  the four  accused persons,  who pleaded not  guilty to  the charges framed against them, was that they  had been  falsely implicated.  They disputed  the identity of  the deceased  as Rama  as also the claim of the prosecution that  the deceased died due to strangulation. In disputing the  cause of  death they examined Dr. B.P. Jangid (D.W.4), a  medical jurist. In his examination under Section 313 Cr.P.C.  Bal Kiahan  Dass stated  that he  was a  man of principles and  did not  believe in  either taking or giving dowry in marriages. He arrested that he had neither demanded nor received any dowry from Shri Kela and that his relations with him  had throughout  been cordial.  He admitted that on the occasion  of ’Holi’ Rama had gone to stay with her elder sister Malti  for the night but disputed her (Malti’s) claim that she  had visited  his house on March 12, 1982. He added that his  was a  well-to-do family  and that  his eldest son Ramesh Narain  was the  Secretary of   the Maheshwari Samaj, Saharanpur whereas  Munshi Lal,  father-in-law of Malti, was the Adhyaksh  of that  Samaj. Since  Satish  Chand,  son  of Munshi Lal  and husband of Malti, was a man of bad character and was  convicted and  sentenced for immoral trafficking he (Bal Kishan)  had asked  Munshi Lal  to step  down from  the office of  the Adhyaksh. This had enraged Munshi Lal and his family and  it was  he who  had left  no stone  unturned  in getting him and the members of his family falsely implicated in the  case with  the help  of Shri  Kela and his son Santi Chandra. He asserted that Rama had left the house of her own during the  night between  March 13 and 14, 1982. He further stated that  on coming  to know  of Rama’s  missing from the house he  had sent  Mahesh Narain  to enquire  of Rama  from Malti and  had sent  a telegrarhic  message to  Shri Kela at Kasganj. As  Suresh Narain  had - gone to Khamgaon to attend the marriage of his niece there, he sent telegraphic message there for  his early  return. He  further stated that he had lodged the  report (Ex.P.31)  with the  local police  and on getting the  ransom letter  (Ex.P/59) on  March 16,  1982 by post, he had handed over the same along with his application (Ex.P/41) to  the Saharanpur  Police. He denied to have ever conspired with  his sons to murder Rama and to have made any extra judicial  confession before  Kamta Prasad  (P.W.31) He arrested that  his two  sons (the  two accused) and daughter Rekha were  taken by the Delhi Railway Police from his house in the  night of March 26, 1982 and in Delhi he came to know that accused  Ashok Kumar and Smt. Balloo (P.W.25) were also brought likewise.  He denied  to have  made any statement to the police  leading to the alleged recovery of the ornaments (Ex.20 to  29) from  his house.  He asserted that he himself was a money lender by profession and advanced loans to needy persons against  pledge  of  ornaments  and,  therefore  had sufficient knowledge  about the purity of gold and from such knowledge he  could say  that the above ornaments, stated to be of  gold,  were  actually  not  so.  In  support  of  his assertion he examined two goldsmiths,  namely,  Amar  Singh  (D.W.1)  and  Om  Prakash (D.W.5).      In their  examination under  Section 313 Cr.P.C. Suresh Narain and  Mahesh  Narain  also  made  similar  statements. Suresh  Narain  stated  that  he  had  left  Saharanpur  for

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Khamgaon in  the night  of March 10, 1982 and on getting the telegram from  his father  he returned on March 18, 1982. He arrested that  his wife had not been killed and he was still in search  of her. Mahesh Narain stated that he was an M.Sc. in Agriculture  and was employed as a Quality Inspector with Food Corporation of India in its branch office at Saharanpur He further  stated that  he had gone to Kasganj on March 10, 1982 and  had returned  therefrom along  with the brother of his wife  on the  following day.  He examined his brother-in law Kaushal  Baboo Rathi  (DW.2) in support of this version. It was  further stated  by him  that on  March 11,  1982 the Saqai ceremony  of Rekha  with the son of Seth Krishna Kumar (D.W.3) was  to be  performed at his house but that had been postponed to  March 21,  1982. According to him the question of his entering into a criminal conspiracy to murder Rama on the eve  of such  an  auspicious  occasion  could  not  have arisen. He  pointed out  that he  himself was married in the month of  February 1982.  He also  denied to  have taken the holdall (Art.1)  to the  Saharanpur Railway  Station.  Ashok Kumar denied  that he was ever called by Rasul Ahmad (P.W.9) from his house or had gone to the Saharanpur Railway Station with the  hold-all in  the rickshaw  of Ishab  Singh and had talks with  Ghanshyam. Ghanshyam’s  version that he had gone to the  Railway Station  to send  off his  cousin,  who  was allegedly going to Palwal, was also disputed by him. Apart from  examining six  witnesses  in  support  of  their defence the accused persons exhibited 77 documents.      From the  judgment of the trial Judge which runsthrough 170 pages, we find that he detailed and discussed the entire evidence adduced by the parties keeping in view the cases of the respective parties before answering the question whether all or  any of  the  circumstances  enumerated  above  stood established.  According   to  the  trial  Judge,  while  the prosecution failed  to prove  circumstances under  item nos. (vi),(vii),(xv),(xvi),(xvii),(xviii) and (xix), it succeeded in conclusively  proving all  the other  circumstances. From the circumstances  so proved  the trial  Judge conclude that the murder  of Rama  had definitely  been committed  in  the house of  Bal Kishan Dass and subsequently her dead body had been disposed  of in  the manner alleged by the prosecution. With the  above conclusion  the  trial  Judge  proceeded  to consider the alleged involvement of the four accused persons in the  above offences.  In dealing  first with  Bal  Kishan Dass, the  trial Judge  observed that  consequent  upon  the failure of  the prosecution  to prove the motive as also any conspiracy behind  the commission  if  the  above  offences, there were  only two incriminating circumstances which stood proved against  Bal Kishan  Dass: namely,  that he  lodged a false report  (Ex.P.31) and  later on  produced a fabricated ransom letter  (Dx.P.59) before the police. According to the trial Judge,  it was not unlikely that being the head of the family he  thought it  necessary  to  save  its  honour  and reputation which  was likely to be affected by the murder of Rama and  probably it was only with that object in view that he made the report and produced the ransom letter before the police. That  apart, the  learned Judge observed, the report (Ex.P.31) was  written by  Mahesh Narain  and not Bal Kishan Dass. Accordingly,  the learned  Judge felt  that Bal kishan Dass was entitled to the benefit of doubt. so far as  Suresh Narain was  concerned the  trail Judge  held that  since the prosecution signally failed to prove the offence of criminal conspiracy and  since  he  was  admittedly  not  present  in Saharanpur  at   the  material   time  he  was  entitled  to acquittal. As  regards Ashok  Kumar the  Sessions Judge held that the  charge under  Section 201  IPC stood  conclusively

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proved against  him as the prosecution was able to establish beyond all  reasonable doubts that he actively helped Mahesh Narain in  causing the  dead body  of Rama,  which  was  the evidence of  the commission of her murder, to disappear with the  intention   of  screening   her  murderer   from  legal punishment. Lastly,  he dealt with the role of Mahesh Narain and held that both the charges under Section 302 and 201 IPC stood fully  established against  him as  he  had  the  best opportunity to  commit the murder which took place in  their house and  he was  instrumental in removing her dead body as also in  giving false  report to  the police and fabricating the ransom  letter. With  the  police  and  fabricating  the ransom letter.  With the  above findings,  the  trial  Judge convicted and sentenced Mahesh Narain under Sections 302 and 201 IPC  and  Ashok  Kumar  under  Section  201  IPC,  while acquitting the other two accused.      Against their conviction and sentence Mahesh Narain and Ashok kumar  filed two  separate appeals  in the High Court; and the  state, in  its turn,  filed an  appeal against  the acquittal of  Bal Kishan  Dass and  Suresh. The  High  Court concurred with all the findings of the trial Judge regarding the incriminating  circumstances alleged against the accused except so  far as  it related  to the recovery of gunny bags similar to  the gunny bag in which the dead body of Rama was found from the house of Bal Kishan Dass. The High Court also concurred with  the view  expressed by  the trial  Judge  as regards the alleged complicity of the accused persons in the offences committed. Rssultantly the High Court dismissed all the three  appeals. The  above judgment of the High court is under challenge  in these  three appeals,  two of which have been filed  by Ashok  Kumar (Criminal  Appeal No.82 of 1988) and Mahesh  Narain (Criminal Appeal No. 221 of 1988) and the other (Criminal  appeal No.120/88)  by  the  State  of  U.P. dismissing their  appeal against the acquittal of Bal Kishan Dass and Suresh.      We have  heard the  earned counsel  appearing  for  the parties at  length  and  carefully  perused  the  voluminous evidence, oral  and documentary,  adduced during trial. From the record  we find  that in  the learned  Courts below  the defence did  not challenge the prosecution case so far as it sought to prove (a) the Rama was in  her matrimonial home on March 12,  1922; (b  that   both Bal  Kishan Dass and Mahesh Narain were also there on March 12 and 13, 1982; (c) that on March 14,  1982 both of them went to Kotwali Police Station, Saharanpur and lodged the missing report (Ex.P.31); (d) that on  March 16,  1982 they  handed over  the  application (Ex.P.41) along  with the  ransom letter  (Ex.P.59)  to  the Additional Superintendent  of Police,  Saharanpur;  and  (e) that on  March 17,1982  the dead  body of  a woman was found inside a  hold-all which  was lying  on platform No.1 of New Delhi  Railway  Station.  Mr.  Gupta,  the  learned  counsel appearing for  the accused persons in these appeals also did not dispute  the findings  recorded by  the  learned  Courts below in  that behalf  though he  refuted the claim of Malti that she had met Rama on March 12, 1982. Mr. Gupta, however, strongly assailed  their other  findings particularly  those relating to  the identity  of the  daceased and the cause of her death,  and reiterated the arguments canvassed on behalf of the accused persons in the Courts below. He asserted that having regard  to the  facts that the indictment against the accused  persons   pivoted  on  the  identification  of  the deceased as  Rama and  that  the  prosecution  had  signally failed to prove such identity, its entire case must fail. He next  contended  that  even  if  it  was  assumed  that  the prosecution established  the identity  still its  case would

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fail as  it was unsuccessful in proving that Rama met with a homicidal death.      While there  cannot be any quarrel with the proposition that on  the prosecutions’s  failure to prove  either of the above facts  its entire  case would  fail, we  are unable to accept the contention of Mr. Gupta that those facts have not been established in the instant case. As noticed earlier the prosecution sought to establish the identity of the deceased by the identification of the clothes and glass bangles found on her  person and  also the  photographs taken  of the dead body. from  the evidence  of Shri  Yadav  (P.W.38)  and  the inquest report  he prepared  (Ex.P.162 and 162A) it is found that the  deceased had  on her  person a  red printed  sari, woolen sweater  and a  number of red coloured glass bangles. Smt. Malti  (P.W.30) had  identified the  above articles  as belonging to  Rama and further stated that the glass bangles had been  given to Rama by her on the occasion of the ’Holi’ when she had visited her. She also testified, on being shown the enlarged photographs of the deceased, that those were of her  sister.  Both  the  trial  Court  and  the  High  Court discussed the evidence of Malti in this regard and found the same   trustworthy. This  apart, the  Courts  below  noticed thatthe description  of wearing apparels of Rama as given by Bal Kishan  Dass in  the missing  report (Ext. P.31) tallied with the  description of the articles found on the person of the deceased.  From the  judgments we  further find that all the comments that were made on behalf of the defence against acceptance of  the  evidence  of  identification  have  been aduquately dealt with and rejection. Having gone through the evidence of  Malti we  do not  see any  reason whatsoever to disturb the  above concurrent  findings. So far as the cause of death  of Rama  is concerned  the Courts  below have also given detailed  reasons for  accepting the  opinion  of  Dr. Ramani (PW  17) in preference to that of Dr. Jangid (D.W.4), who opined  that the death was not due to strangulation. One of the reasons so given is that Dr. Jangid had expressed its opinion solely  on the  basis of the report submitted by Dr. Ramani after holding the autopsy and that he had no occasion or opportunity  to see and examine the dead body itself; and in  fortification   thereof  the   Courts  relied  upon  the following passage  from the  judgment of this Court in Piara Singh Vs. State of Punjab AIR 1977 SC 2274:      "Apart from  this  in  the  instant      case it   appears that Dr. Jitendra      Singh had  the  - initial advantage      of  examining  the    deceased  and      holding   his   post   mortem   and      observing   the   nature   of   the      injuries  on     the  body  of  the      deceased.   His    opinion      is,      therefore,  based   on  first  hand      knowledge and would be in any event      preferable  to   Doctor   Paramjeet      Singh  who      did  not  have  the      advantage of  seeing the   deceased      or the  injuries on  his  body  but      deposed purely  on the basis of the      description of  the injuries  given      by Dr.   Jitendra  Singh.  For  all      these reasons,  therefore, we would      prefer the evidence of Dr. Jitendra      Singh  to  the  evidence  of    Dr.      Paramjeet Singh."      In the  instant case  the prosecution  was required  to prove, after  having succeeded  in establishing the identity

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of thedeceased  as Rama  that she met with a homicidal death in  her   matrimonial  home.   If,   therefore,   from   the circumstances appearing  on record  the prosecution has been able to  conclusively prove  that fact,  the manner  how her such death  was brought  about would  not be  of any moment. Judged in  that perspective,  in our  considered  view,  the findings recorded  by the learned Courts below in respect of the cirumstances  under item  Nos.  (iv)  and  (v)  detailed earlier clinch  the issue in favour of the prosecution, sans the  testimony   of  Dr.   Ramani.  To   prove   the   above circumstances the  prosecution examined Ishab Singh (P.W. 8) a rickshaw puller, who testified that his rickshaw was hired by accused  Mahesh Narain in the night of March 13, 1982 and in that  rickshaw he  carried a  holdall from their house to Saharanpur Railway  Station. Both  the Courts have found his evidence  trustworthy  and  after  careful  perusal  of  his evidence we  also do  not see  any reason to differ with the finding so  recorded. Incidertally  it may be mentioned that the trial  Judge has  observed that he (P.W.8) had impressed him (the  Judge) very  much  by  his  straight  forward  and unhesitant  answers   to  the   questions  put   to  him  in examination-in-chief  and   cross  examination.   When   his evidence is  read in the context of the fact that a few days Later (on  17th March)  dead body of Rama was recovered from inside a  similar hold-all  (irrespective  of  the  question whether its identity stood established or not) the only reasonable conclusion  that can  be drawn  therefrom is that she met with her death in the house of her in-laws. As it is nobody’s case  that such  death was accidental or suicidal - indeed, it was not even suggested by the defence that it was so -  the only  corollary that follows from the proof of the above two  circumstances and  the manner  in which  her dead body was recovered is that her death was homicidal.      Now that  we have  found that  Rama was  killed in  the house of  Bal Kishan  Dass and  her dead  body  was  removed therefrom we  have to  ascertain the  role  of  the  accused persons, if  any, in  these crimes. As stated earlier except Ashok Kumar,  the other  accused were of the same household. Since, admittedly,  Suresh Narain  was not  in Saharanpur on March 12  and 13,  1932 and  the charge  of  conspiracy  has failed his acquittal has got to be upheld.      That brings  us to the case of the other two members of the household, namely, Mahesh Narain and Bal Kishan Dass. In distinguishing the  case of  Bal Kishan  Dass from  that  of Mahesh Narain, the learned Courts below observed that though both of  them were party to the fitting of false reports and a fabricated  ransom letter with the police to mislead them, the former  did so only to save honour and reputation of the family. Besides,  the Courts noticed that the missing report (Ext. P.31)  was written  by Mahesh  Narain and  the  ransom letter  was  procured/prepared  by  him.  Having  given  our anxious consideration  to this  aspect of  the matter we are unable to  hold that their cases are distinguishable; and in our opinion they stand on the game footing for they acted in unison.      It is  not in  dispute that  Bal Kishan Dass and Mahesh Narain were in their house in the fateful nights. It is also not in  dispute that  the missing report (Ext. P.31), though prepared by Mahesh Narain, was signed by Bal Kishan Dass and he  handed  over  it  to  the  police  on  March  14,  1982. Undisputedly again,  the application (Ext.P.41) was typed by Anil Kumar  (P.W.13) at  the instance of Bal Kighan Dass and was signed and handed over to the police by him on March 16, 1982. since  it stands  established that  before the missing report was  lodged with  the police,  Rama had  met with her

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death in  his house,  it necessarily  means  that  both  the reports that  were lodged  with the  police (Ext.  P.31  and P.41) were  false and prepared to mislead the police. Now to ascertain whether  the ransom  letter (Ext.  P.59) that  was annexed to the second report (Ext. P.41) was also fabricated at the instance of Bal Kishan Dass it will be appropriate to first refer  to the  same. The transliterated version of the letter, which  is in  Hindi and  was addressed to Bal Kishan Dass reads as under:      " Mohaday,      Aap ke  ladke ki  dharam  patnismt.      Rama  hamara  pass  surakshit  hai,      jise  hamne  13.3.82  ki  ratri  me      prapt kiya hai. Aap use prapt karne      ke  liye   do  lakh   rupees  lekar      18.3.82  tak   Dahradun  Chowk  par      Bharat Steel  se hamara  pata malum      karke prapt  kar  le,  anthya  usko      maut ka ghat utar diya jayega. Iski      suchna kisi  bhi police  eityadi ko      dene  ki  avaskta  nahi  hai,  yadi      police ko  suchit kiya  to hum  use      jan se turant mar denge. 18.3.82 ko      samay ratri 7 baje.                  Aapka              Ahmed Hussain              through Bharat              Steel, Dehradum                  Chowk,               Saharanpur"      In commenting  upon the  above quoted  letter the  High Court noticed  that in  the first  line of  the original the words ’Smt. Rama’ has been written above the line and a mark has been  made between the words Dharampatani ’ and ’Hamare’ and then  ’Smt. Rama’ has been inserted which indicated that the writer  was particular  about writing  the name  of Rama even though  it was  not typed  in the  main line.  The High Court went  on to  say that the letter used very respectable words and  Rama has been referred to as ’dharampatni’ of his son and  ’Smt.’ has  been prefixed  to her  name. Bal Kishan Dass has  been addresed  as ’aap’  and in  the end  also the writer has  written ’aapka’.  According to  the High Court a kidnapper would  not use  such respectable  words nor make a polite request  to pay  ransom. Then  again, the  High Court observed, while  demanding ransom  the kidnapper  would  not write the  time when  the person was kidnapped but would fix the time  and place  where the   ransom money is to be paid. The High Court also noticed that in that letter the time for payment has been added in the end which appeared to it to be an after  thought. The High Court noticed that in the letter emphasis is  not on the payment of money or the time for its payment but on the date and time when Rama was kidnapped and who Rama was. The High Court observed that a letter claiming ransom would  have been  short and  to the point rather than containing irrelevant  details. It  is on  the basis  of the contents of  the letter  and  the  evidence  of  Anil  Kumar (P.W.13)  who   testified  that   apart  from   getting  the application (Ex.P.41)  typed by  him Ashok  Kumar and Mahesh Narain had  borrowed  his  type  machine  for  getting  some confidential papers  typed, the  High Court  agreed with the finding of  the trial  Judge  that  the  ransom  letter  was prepared by  Mahesh Narain  for misguiding  the  police.  On going through  the ransom  letter and  the evidence  of Anil Kumar we  are in  complete agreement  with the  Courts below that the  ransom letter  was a  fabricated letter  and false

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reports were  lodged with the police to misguide them but we are unable  to  hold  that  only  Mahesh  Narain  was  party thereto.      The  reason  letter  was  an  annexure  to  the  report /application (Ext.P.41)  that Bal  Kishan  Dass  signed  and presented before  the Addl. Superintendent of police. In his examination under  Section 313  Cr.P.C. when the trial Court brought to  his notice that it had come in the evidence that on March  16,1982 he  got Ex.P.41 type written by Anil Kumar he admitted  that he  had done  so. Unfortunately,  however, while dealing  with the  case of Bal Kishan Dass the learned Courts below  did not  at all  take into  considertation the application (Ext.P.41) and proceeded  only on the basis that the earlier  report Ex.P.31 was written by Mahesh Narain and he was only responsible in procuring the false ransom letter When the  ransom letter so prepared/procured was posted with him (Bal  Kishan Dass)  as the addressee, and after  receipt of the  same when  it was  annexed to  a document  which  he himself signed  after getting  it typed  it must be said Bal Kishan Dass  was also  a party  thereto. For  the  self-same reason Bal Kishan Dass would be also culpable for filing the earlier missing report with the police. When these facts and circumstances are considered in juxta-position with presence of Bal  Kishan Dass  in the house when the murder took place the only  inference that can be drawn is that he was a party to murder of Rama and removal of her dead body.      As regards  accused Ashok  Kumar, his conviction  under Section 201  IPS has  got to  be upheld  in  view  of    the unimpeachable evidence  of   Ishab Singh  (P.W.8) and  other evidence discussed  earlier, which  indubitably proves  that being fully  aware that  Rama had been  murdered he actively associated himself  in removal  of  her dead body, obviously to screen the offenders.      On the  conclusions as  above we uphold the  conviction of Ashok  Kumar under  Section 201  IPC but  considering the facts and  circumstances of  the case  and  particularly the fact that  since  the  offence  was    committed  more  than fourteen years  have elapsed  we    reduce  the  substantive sentence of  rigorous imprisonment   of  five years  imposed upon him  for the above conviction  to rigorous imprisonment for two  years. Subject to the  above modification regarding sentence his  appeal (being   Crl. Appeal No. 82 of 1988) is dismissed. Crl.  Appeal No. 221 of 1986) preferred by Mahesh Narain, is  also dismissed  with only this modification that his conviction  under Section  302  IPC  (simiplciter)  will stand altered  to one  under  Section  302/24  IPC  but  the sentences imposed  upon  him  shall  stand  confirmed.  Crl. Appeal No.  120 of 1988 filed by the State of U.P. is partly allowed in  that, the  appeal so  far as  it relates  to the acquittal of  Suresh Narain  is dismissed  but in respect of Bal Kishan  Dass the  same is  allowed. The convicted of the Offences under  Sections 302/24  and  201/34  IPC.  For  his conviction under  Section 302/34  IPC   he is  sentenced  to suffer imprisonment  for life  but   no separate sentence is passed for  the other conviction.   Suresh Narain, who is on bail is  discharged from  his   bail bonds.  The other three accused persons,  namely Bal  Kishan Dass, Mahesh Narain and Ashok Kumar  , who  are on  bail, will now surender to their bail bonds to serve out the sentences.