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CASE NO.: Appeal (crl.)  371 of 2005

PETITIONER: Yogesh Narain Saxena

RESPONDENT: State of Uttaranchal

DATE OF JUDGMENT: 09/03/2007

BENCH: C. K. Thakker & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.

       The appellant has filed this appeal against the judgment  dated November 23, 2004, passed by a Division Bench of High  Court of Uttaranchal at Nainital confirming the conviction and  sentence for life in respect of the offence punishable under  Section 302 of the Indian Penal Code [for short "the IPC"] and  further rigorous imprisonment for seven years under Section  201, IPC, awarded by the Sessions Judge, Dehradun, in  Sessions Trial No. 77/79.         Brief facts, which led to the trial of the accused, are as  follows:-         Appellant-Yogesh Narain Saxena is a permanent resident  of Jabalpur.  He was employed as Junior Electrician in Hydel  Department at Dak Pathhar, P.S. Vikas Nagar, District  Dehradun.  The appellant for the last about 5-6 years prior to  the date of occurrence, i.e. 24.7.1979, was living in Quarter  No.  5(B), Gol Market, Dak Pathhar.  Sunder Lal (P.W.3) along  with his three brothers, namely, Rajesh Kumar (P.W.4), Gopal  Krishna and Pradeep Kumar, were also living in the nearby  quarter at Gol Market.  They were running small shops in  front of their quarters.         Sandeep alias Bunti, son of Sunder Lal (P.W.3), aged  about 10= years, was a student of Class VI.  He was taking  tuition from Surender Singh Patia (P.W.1).  In the evening of    24.7.1979, Sandeep had gone to the house of P.W.1 for taking  his routine lessons from P.W. 1.  He came back to his home  after about one hour but again he went back to the house of  P.W. 1 to collect his inkpot which he by mistake left there.    Sandeep did not return to his home till about 9.00 p.m.   P.W.3, P.W.4 and other family members in the company of  neighbourers proceeded in search of Sandeep but he could not  be traced anywhere.  P.W. 4 at 9.45 p.m. lodged a missing  report of Sandeep at Police Out-post.  Sub-Inspector Jeet  Singh (P.W.8) along with three Constables immediately  reached Gol Market.  They cordoned the area and initiated  search of Sandeep throughout the night in the market and  nearby places.  According to the prosecution, the accused had  cordial and friendly relations with P.W. 3 being a neighbourer,  but he did not show any interest for searching the missing  boy.     It was alleged that in the morning of 25.07.1979, the  accused was seen present in his quarter by Gopal Krishna (not  produced), brother of P.W. 3 and P.W. 4.  Gopal Krishna asked  the accused whether he had seen Sandeep anywhere in the

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vicinity, but the accused did not utter any word and on the  contrary, he got upset and quietly went inside his quarter.   After sometime, Rajendra Kumar (P.W.2) noticed the accused  locking the door of his quarter and going out.  It was alleged  that on 25.07.1979 at about 9.00 a.m., P.W. 3 - father of  Sandeep, received a call on his telephone from Dehradun.  The  caller demanded a ransom of Rs.20,000/- for returning his  son, Sandeep.   Finally, the deal was settled for Rs.12,000/-.   P.W. 3 was asked by the caller to keep money near Bindal  Bridge, Dehradun, on the same night at 9.00 p.m.  It was  alleged that the voice of the caller appeared somewhat like that  of the appellant.  P.W.8 \026 the Sub Inspector Jeet Singh advised  P.W. 3 to keep the amount as demanded by the caller at the  appointed time and place under watch and control of the  police so that the police could apprehend the culprit.   According to the settled plan, P.W. 3 left the money at the  place as directed, but it appeared that the culprit some how  got information of the presence of the police so he did not turn  up till midnight to collect the ransom amount.  Finally, P.W. 3  and the police party decided to go back to Dak Pathhar as  there was no useful purpose of waiting at that place.         It was in the forenoon of 26.07.1979 at about 3.45 p.m.  when P.W. 4, Jagdish Prasad (P.W. 9), a shop keeper in the  neighbourhood of P.W. 3 and P.W. 8 along with police  constables and other residents of the area were on the look  out of Sandeep near a place known as Khadar, they noticed  the accused coming from the opposite side of Gol Market.  On  seeing the police party and other persons, the accused  tried to  run away, but he was over-powered by the members of the  search party.  On interrogation by P.W. 8, the Investigating  Officer, the accused disclosed that he had dumped the dead  body of Sandeep in his quarter and the same could be  recovered by him.  Pursuant to the information supplied by  the appellant, the Investigating Officer recorded the said  information in writing marked as Exhibit Ka-28 in the case  diary. The accused was arrested at Gol Market on the spot and  was taken to his quarter.  The Investigating Officer asked the  accused to handover the keys of the lock of the outer door of  the quarter but he replied that he had lost the keys.  The  Investigating Officer was left with no other option except to get  the locks of the outer door and also the lock of the other door  of the inner room of the quarter broken up in the presence of  witnesses.  On entering the inner room of the quarter, the  accused opened a tin box in which dead body of Sandeep was  found lying.  The dead body was removed from the box and on  visual examination marks of strangulation were noticed on the  neck of the deceased.  The Investigating Officer recorded the  First Information Report under Sections 302/201 IPC on  26.7.1979 at 5.15 p.m. against the accused and held  necessary mazhar on the spot.  The neck and knee of the  deceased were found tied with a piece of cloth when the dead  body was removed from the tin box.  The dead body of the  deceased was despatched  for autopsy which was performed  by Dr. P.D. Jakhmola (P.W. 5) on the following day.  The  Investigating Officer recorded the statements of the material  witnesses on the spot.  When the accused was further  interrogated on 27.07.1979, he took the Investigating Officer  and other witnesses to the rear portion of his quarter and got  a pair of chappal of the deceased recovered from a water drain.   After completion of the investigation and after receipt of post- mortem report and other reports, charge sheet was filed  against the accused for offences punishable under Sections  302 and 201 IPC.  The prosecution examined as many as nine  witnesses to support its version.  In his statement under

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Section 313 of the Code of Criminal Procedure, 1973 [ for  short "the Cr.P.C."], the accused has denied his involvement in  the crime.  In answer to question No.25 [viz., Do you have to  say anything more?], he replied as under:-         "I am working as Junior Electrician at Dak  Pathhar in Electricity Department since 1973.    Every one was satisfied with my work.  I was  married on 10.10.78 in a Punjabi family due to  which some Punjabi families became annoyed  with me and threatened me to destroy.  On  31.3.79, my father-in-law was transferred to  Uttar Kashi.  My wife was in a family way.  My  wife said that she would not be able to go in  future, so for some days, ’I want to go to Uttar  Kashi’.  Therefore, I applied for earned leave from  10.7.79 to 30.7.79 and we left for Uttar Kashi on  10.7.79.  On 23.7.79, myself and my wife came to  Dehradun from Uttar Kashi.  We reached  Dehradun in the evening of 23.7.79 at 4.30 p.m.   My wife said that tomorrow we shall go to Dak  Pathhar for the cleaning of the house.  On this, I  agreed and on 24.7.79, myself and my wife went  to Dak Pathhar in the morning.  There cleaning  etc. was done and we took breakfast at 2 p.m.,  purchased biscuits from the shop of Sunder Lal.   In the evening at 5.00 p.m. we came back to  Dehradun.  On 25.7.79 we went to Dehradun  market.  On 24.7.79 at about 8.30p.m. we went  to take dinner at the house of one friend.  Came  back at 10.30 in the night.  On 26.7.79 we had  gone to Kanak Talkies to see a movie. At  Dehradun, I went to my brother-in-law at 3.30  p.m. who lives at 52-A, Connought Place,  Dehradun.  There some police constables were  standing.  I went inside the house.  Two Sub- Inspectors were sitting with my brother-in-law.  Thereafter Darogaji brought me to Dak Pathhar  on the pretext for making enquiries.  They  brought me in car.  Rajesh Kumar, witness also  sat with us from Dehradun.  After taking me to  Dak Pathhar Out-post they said to me that they  will take search of my house.  I said you may  take but what the matter was. Darogaji said that  you would know it later, first you proceed to your  house.         When I went to my house on 26.7.79 at  about 5.00 p.m. then I found that my quarter  was unlocked.  I told Darogaji that there were no  locks.  Darogaji asked me to shut up. Thereafter  Darogaji collected witnesses from the  neighbourhood and then entered into my quarter  with me.  Inside, I saw that my doors were open.   I told that some one has entered into it but  Darogaji silenced me.  After entering inside they  opened the big Box Ex.1.  In this box, the dead  body of Sandeep was kept.  Foul smell was  emanating.  He closed the box then and there.   Meanwhile, a crowd had collected outside the  quarter.  Hearing hue and cry, I was sent to  Police Out-post, Dak Pathhar.  On 27.7.79, in the  morning at 7.30 I was sent to Dehradun jail."

       The accused in his defence examined his wife Smt. Asha  Saxena (D.W.1), Vijay Singh (D.W.2) and Mahendra Pratap  Saxena (D.W.3).  The trial court, after considering the evidence

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on record, recorded conviction and awarded sentence as  aforesaid.  The accused-appellant preferred an appeal under  Section 374(2) Cr.P.C.  The High Court, as noted above,  confirmed the conviction and sentence imposed upon the  appellant by the trial court.         The case of the prosecution rests on circumstantial  evidence.  The circumstances on which the trial court placed  reliance for recording conviction are as follows:- 1.      The accused is admittedly almost a next door  neighbour of the deceased.  It is not controverted that  he was on visiting terms with the father and the uncles  of the deceased.  In fact, he used to make purchase  from the shop of P.W. 3 Sunder Lal close-by.  The  deceased who was a young lad of ten years used to call  the accused an uncle.  In view of the proximity and  close affiliation, the accused had the faith and  confidence of the deceased besides having unrestricted  approach and access to him.  2.      The accused had love marriage with a beautiful  Punjabi girl about 9 or 10 months prior to his  occurrence involving considerably extra financial  burden especially as she was in family way in July  1979.   Apart from it, the accused owed considerable  money to the club which was to be repaid and which  has not so far been repaid. 3.      The wife of the accused was out of station having left  on 10.7.1979 to visit her parents in Uttarkashi.  The  accused was thus all by himself on 24.7.1979 to plan  a scheme for collecting money without any hindrance  from any quarter in the calm and quiet of his inner  room of the quarter. 4.      Strangulation of a lad aged ten years needed  confidence and faith of the object to avoid cries and  shouts.  It was possible for the accused only with the  deceased.  It is noteworthy that the deceased had no  other injury on his person, that the dead body was  neatly and carefully packed in tin box (Ex.1) and that  the right hand was raised over the body clearly  indicating that it was dumped immediately after  strangulation. 5.      There was no motive at all for any of the prosecution  witnesses to falsely implicate the accused.  There is no  reason either to support that anybody, much less a  Punjabi, was aggrieved or agitated because of inter  caste marriage of the accused with a Punjabi girl.   Even if it be assumed for a second that some of them  had any ground to be displeased with the accused,  they had no reason at all to achieve that object by  killing the young son of one of their own company. 6.      None else had any access or opportunity to plan dead  body of the deceased inside the quarter of the accused.   In any case, it was impossible for anybody else to plant  a fresh dead body inside the box of the accused. 7.      The accused was in Gol Market in his quarter on  24.7.79 and left the quarter at about 5.30 a.m. the  next morning.  What is noteworthy is that the accused  admitted his presence in his quarter along with his  wife upto the afternoon of 24.7.79 and not thereafter.   This was totally false.  Moreover, the accused was  found to be in his quarter even in the early morning of  25.7.79 and when approached by his neighbour for  enquiry about the whereabouts of the deceased he got  upset and soon thereafter left locking the quarter. 8.      There was a telephone call from Dehradun to P.W. 3  Sunder Lal, father of the deceased, at 9.00 a.m. on

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25.7.79 demanding ransom and the voice of the caller  resembled that of the accused. 9.      Immediately after his arrest, in the afternoon of  26.7.79 the accused revealed the entire story without  any coercion, compulsion or threat and stated that he  could point out and recover the dead body of the  deceased from inside his quarter.   The statement was  followed with actual recovery of the dead body at his  instance from inside the inner room of his quarter  dumped in his own tin box (Ex. 1) over his quilt and  plastic cover. 10.     Earlier assertion of the accused was that his quarter  and the inner room were locked with different locks  but now it is contended that they were lying open.   This false assertion was necessary to prop up the story  of plantation of the dead body inside the quarter by  strangers. 11.     Chappals of the deceased which he was wearing at the  time when he disappeared too were discovered and  recovered at the instance of the accused from a drain  very close to his quarter in the morning of 27.7.79. 12.     Last but not the least defence is full of omissions and  lies. Shri Sushil Kumar and Shri J.C. Gupta, learned senior  counsel appearing on behalf of the appellant, assailed the  judgment of the High Court inter alia contending:- (i)     That the case is based on circumstantial evidence  and the circumstances highlighted by the  prosecution do not present a complete chain to  show that in all human probability the act must  have been done by the appellant and the judgments  of the trial court as well as that of the High Court  are based on hypothesis and conjectures. The  prosecution has failed to establish that the  circumstances from which the inference of guilt is to  be drawn by the prosecution, is not cogently and  firmly established;  (ii)    that no motive of any kind whatsoever has been  established by the prosecution from the evidence on  record against the appellant; (iii)   that there is no evidence at all of last seen of the  deceased with the accused on the day and at the  relevant time of occurrence;     (iv)    that there is no evidence led by the prosecution to  prove that any body saw the child entering into the  appellant’s house which is surrounded by a number  of houses and shops; (v)     that the statement of Surendra Singh (P.W. 1) that  the appellant was seen by him in the evening of  24.7.79 in front of his house is just an improvement  and an after thought; (vi)    that no witness has deposed of the presence of the  appellant in his quarter on the fateful night; (vii)   that for the first time during trial, it was introduced  by the prosecution through the mouth of Brij  Mohan Gupta (P.W. 6) that the wife of the appellant  had left the quarter of the accused about 15-20  days before 24.7.79 and thereafter the appellant  was living alone in the quarter.  The trial court as  well as the High Court have failed to appreciate and  re-appreciate the evidence of the defence witnesses  who have established on record that on the day of  the occurrence the appellant and his wife D.W. 1  both were at Dehradun; and (viii)  that the recovery of dead body of the deceased

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allegedly at the instance of the appellant cannot be  a conclusive proof of murder by the appellant.  It  was urged that the crime had been committed by  some other person who concealed the body of the  child in the house of the appellant to frame him in a  false case.  If the evidence of the prosecution is  accepted, the appellant could only be held guilty for  committing the offence under Section 201 IPC and  not for offence under Section 302 IPC., was the last  contention of the learned counsel. The learned counsel for the State, on the other hand,  submitted that the reasons given by the trial court as well as  by the High Court for recording the order of conviction of the  accused are based upon proper appreciation of evidence led by  the prosecution in the case.  According to him, the chain of  circumstances is consistent only with the hypothesis of the  guilt of the accused. Before adverting to the arguments advanced by the  learned counsel, we shall at the threshold point out that in the  present case there is no direct evidence to connect the accused  in question with the evidence and the prosecution rests his  case solely on circumstantial evidence.  This Court in a series  of decisions has consistently held that when a case rests upon  circumstantial evidence such evidence must satisfy the  following tests:- (i)     the circumstances from which an inference of guilt  is sought to be drawn, must be cogently and firmly  established; (ii)    those circumstances should be of definite tendency  unerringly pointing towards guilt of the accused; (iii)   the circumstances, taken cumulatively, should form  a chain so complete that there is no escape from the  conclusion that within all human probability the  crime was committed by the accused and none else;  and (iv)    the circumstantial evidence in order to sustain  conviction must be complete and incapable of  explanation of any other hypothesis than that of the  guilt of the accused and such evidence should not  only be consistent with the guilt of the accused but  should be inconsistent with his innocence. [See  Gambhir v. State of Maharashtra (1982) 2 SCC  351 : (AIR 1982 SC 1157)]  See also Rama Nand v. State of Himachal  Pradesh (1981) 1 SCC 511 : (AIR 1981 SC 738),  Prem Thakur v. State of Punjab, (1982) 3 SCC  462 : (AIR 1983 SC 61), Earabhadrappa v. State  of Karnataka, (1983) 2 SCC 330 : (AIR 1983 SC  446), Gian Singh v. State of Punjab, 1986 Suppl.  SCC 676 : (AIR 1987 SC 1921),  Balvinder Singh v.  State of Punjab (1987) 1 SCC 1 : (AIR 1987 SC  350).   As far back as in 1952 in Hanumant Govind  Nargundkar v. State of M.P. [AIR 1952 SC 3443], it was  observed thus: "It is well to remember that in cases where the  evidence is of a circumstantial nature, the  circumstances from which the conclusion of guilt is  to be drawn should in the first instance be fully  established, and all the facts so established should  be consistent only with the hypothesis of the guilt of  the accused.  Again, the circumstances should be of  a conclusive nature and tendency and they should  be such as to exclude every hypothesis but the one  proposed to be proved.  In other words, there must

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be a chain of evidence so far complete as not to  leave any reasonable ground for a conclusion  consistent with the innocence of the accused and it  must be such as to show that within all human  probability the act must have been done by the  accused."

A reference may be made to a later decision in Sharad  Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC  116 : (AIR 1984 SC 1622.  Therein, while dealing with  circumstantial evidence, it has been held that the onus was on  the prosecution to prove that the chain is complete and the  infirmity of lacuna in prosecution cannot be cured by false  defence or plea.  The conditions precedent in the words of this  Court, before conviction could be based on circumstantial  evidence, must be fully established.  They are (SCC pp. 185,  para 153) : (i)     the circumstances from which the conclusion of  guilt is to be drawn should be fully established.  The  circumstances concerned must or should and not  may be established; (ii)    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; (iii)   the circumstances should be of a conclusive nature  and tendency; (iv)    they should exclude every possible hypothesis  except the one to be proved; and (v)     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. We may also make a reference to a decision of this Court  in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193,  wherein it has been observed thus: (SCC pp.206-207, para 21)  "21.  In a case based on circumstantial evidence,  the settled law is that the circumstances from  which the conclusion of guilt is drawn should be  fully proved and such circumstances must be  conclusive in nature.  Moreover, all the  circumstances should be complete and there  should be no gap left in the chain of evidence.   Further,  the proved circumstances must be  consistent only with the hypothesis of the guilt of  the accused and totally inconsistent with his  innocence."

Bearing the above principles of law enunciated by this  Court, we shall scrutinize scrupulously and examine carefully  the circumstances appearing in this case against the  appellant.          There are certain salient and material features in the  present case which are admitted; they being that the appellant  and P.W. 3- father of the deceased child were the neighbourers  in the colony of Gol Market, Dak Patthar.  The appellant was  on visiting terms with P.W. 3 and the deceased used to call  him as uncle.  It is the evidence of P.W. 3 that the appellant  was a regular customer of his shop and even on 24.07.1979,  the appellant came to the shop and purchased some essential  commodities from him.  He stated that on 24.07.1979 at about  6.30 p.m. Sandeep had gone to the house of P.W. 1 (tutor) for  taking tuition and after finishing his work, Sandeep came

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back to home.  On reaching home, Sandeep left his bag of  books at his house and immediately went out of the house  saying that he would come back soon, but his son did not  return till 9.00 p.m.  He went out in search of his missing son  towards Dhalipur Dhakrani side, but he could not get any clue  of Sandeep.  He asked his younger brother P.W. 4 to lodge the  missing report of Sandeep.  On the following day at about 8.00  a.m., he came back from Dhalipur Dhakrani.  On 25.07.1979,  he received a telephone call at his house from Dehradun and  the person who made the said call asked P.W. 3 that if he  wanted safe and sound return of his son, he had to pay a  ransom of Rs. 20,000/-.  He showed his inability to pay such a  huge amount.  The caller of the telephone then made a  demand of Rs. 15,000/- and on showing his inability to pay  the said amount the caller reduced the demand to Rs.  12,000/-.  Thereafter, the caller of the phone instructed him to  pack the money in a bag and place the bag at 9.00 p.m. on the  last step of the staircase of the north-eastern side of the  Bridge of Bindal River at Dehradun.  The caller of the  telephone threatened him not to report the matter to the police  or anybody else, lest his son would be finished.  It is his say  that the caller of the telephone also extended threat that if he  failed to reach at the settled place with ransom money, the  child would be finished and even the dead body would not be  made available to him.  He categorically stated that the voice  of the telephone caller was somewhat similar to the voice of  the accused.  He consulted his younger brother-Gopal Krishna  in regard to the further course of action.  Gopal Krishna told  him that the accused was not found present in his quarter  since 5.30 in the morning of 25.07.1979.  The entire matter  was narrated and discussed with the Investigating Officer who  advised him to arrange Rs. 12,000/- and place the bag of the  money at the suggested place.  He was assured by the  Investigating Officer that police would ensure for his personal  safety.   As per plan he went to Dehradun at 8.45 in the night  and concealed himself near some shop located there.  He  remained hiding there for about 2= hours but nobody turned  up to lift the packet of money.  The Investigating Officer came  to him and told that as nobody had come and sufficient time  had passed he should go to the place and collect the packet of  money. He then lifted the packet of money and returned home  with police party.  A suggestion of the defence that since the  accused had married a Sikh girl, therefore, the members of the  Sikh and Punjabi communities, living at Dak Patthar became  annoyed with him, is denied by the witness.         P.W. 4 is the brother of P.W. 3.  His evidence shows that  he along with P.W. 3 and two more brothers namely, Gopal  Krishna and Pradeep and their father are jointly residing in  one house at Gol Market, Dak Patthar.  He corroborated the  testimony of P.W. 3 in its entirety.  He got recorded the  missing report of Sandeep in the police station.  It is his  evidence that on 26.07.1979 in the evening at about 3.45 or  4.00 p.m., he accompanied by Shadiram, Chetandas, Subhash  Bhatia and some more persons of the town had again gone in  search of Sandeep and when they reached at a place known  Khadar they saw the accused coming from the school side and  going towards Gol Market, Dak Pathhar.   On seeing them, the  accused stopped for a while and then tried to run backward.   The police personnel who were accompanying them  apprehended the accused and later on he was interrogated.   The accused initially kept silent, but after some time he  narrated the entire incident to the police and disclosed that he  could get the dead body of Sandeep recovered from the inner  room of his quarter.  The accused led the police party to his  quarter and having reached there, the accused said that he

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had lost the keys of the locks of the doors.  Then the lock of  the outer door of the quarter was broken by the police.  On  opening of the quarter, the accused went through one room on  the back side of the courtyard.   The police broke open the lock  of the door of inner room.  He along with the accused and  police personnel went inside the room where a tin box was  placed.  The accused opened the box in which dead body of  Sandeep was found concealed.  The police closed the box and  removed it out of the room.  The Investigating Officer prepared  the majhar of the dead body   [Ex. Ka-20] which was duly  signed by him and other witnesses.  It is his evidence that on  the dead body of Sandeep one cloth piece of salwar was  wrapped and the neck and knee of Sandeep were found jointly  tied with a chunni (a piece of scarf).  He stated that quilt Ex. 4  and plastic table cover Ex. 5 which were underneath the dead  body, and a piece of salwar Ex. P-2 and chunni Ex. P-3 were  taken into possession by the Investigating Officer on the spot.   Box, Ex. 1, in which the dead body was concealed and two  broken locks Ex. 6 and Ex. 7 were also taken into possession  in his presence.  Bushirt, undershirt and half pant which were  found on the dead-body of Sandeep marked Ex. 8, Ex. 9 and  Ex. 10 were identified by him in the Court.  On 27.7.1979 at  about 8.30 a.m. at the instance of the accused, the police in  his presence and other witnesses recovered a pair of chappal  (slippers) Ex.11 and Ex. 12 of the deceased from a water drain  located on the back side of the quarter of the accused.  He  admitted in the cross-examination of the defence that the  police inflicted one or two danda blows on the person of the  accused when he was trying to run away on seeing the police  party at Khadar.  A suggestion of the defence that on  26.07.1979 at about 3.30 p.m., the police arrested the  accused from the house of his brother-in-law at Dehradun is  denied by the witness.           P.W.1-Surendra Singh Patia lived in Quarter No. 7-A, Gol  Market, Dak Patthar, which is about 10-15 yards away from  the quarter of the accused.  He was the Tutor of the deceased.   It is his evidence that in the evening of 24.07.1979 he was  teaching  Sandeep in the verandah of his quarter, when he  saw the accused passing through his quarter and going  towards his own quarter.  It has come in his cross- examination that after return from the Club on the day of  incident,  he came to know about the missing of Sandeep.  He  joined the searching party but they could not trace Sandeep.         P.W. 2 - Rajendra Kumar Sharma is residing in Quarter  No.4, Gol Market, Dak Patthar.  He is the neighbour of both  P.W.3 and the accused.  He deposed that on the fateful night  he took part in search of missing Sandeep.  It is his evidence  that on the morning of 25.07.1979 at about 5.00 a.m. he along  with Gopal Krishna again made inquiries from every family  members residing in the quarters at Gol Market about the  whereabouts of Sandeep.  They had also gone to the house of  the accused and enquired from him whether he had seen  Sandeep who was missing since evening of 24.7.1979.  He  stated that on their asking the accused got perplexed and  went inside his quarter saying that he did not know anything  about the boy.  They came back from the quarter of the  accused and after about 10-15 minutes he saw the accused   locking the outer door of his quarter and going out from there.   The presence of the appellant at Gol Market on 24.7.1979 has  been established on record in the deposition of P.W. 2, an  independent witness.   This witness has also proved the  presence of the appellant in his quarter at about 5.00 a.m. in  the morning of 27.7.1979.   P.W.6-Brij Mohan Gupta is also a resident of Gol Market  area.  He deposed that the wife of the appellant was not

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staying in the house of the appellant for the past fortnight  from the day of the incident.  He was also a member of the  search party with the police officials in the evening of  26.07.1979 when the appellant was apprehended.  He  witnessed the recovery of a pair of Chappals, Ex.11 and Ex.12,  of the deceased at the instance of the appellant in the evening  of 27.07.1979 from a water drain at the backside of the house  of the appellant.  He is an independent witness and his  testimony has remained unshattered and unshaken in the  cross-examination.  His testimony corroborates the version of  the other witnesses that in the afternoon of 26.07.1979 the  appellant was arrested at Dak Patthar by the police.  The  defence of the appellant that the police apprehended him at  Dehradun is falsified by the witness.  There is not an iota of  evidence on record to infer that this witness is in any way  interested for any reason whatsoever to implicate the appellant  in a false case. P.W.9-Jagdish Prasad is also a resident of Gol Market  whose house is close to the house of P.W.3.  He was also a  member of the search party when the appellant was  apprehended in the afternoon of 26.07.1979 near Gol Market.   He testified that immediately after the arrest of the appellant,  the police interrogated him whereupon the appellant revealed  the entire story disclosing that the dead body of Sandeep was  laid in his quarter.  He witnessed the breaking of the locks of  the rooms of the quarter of the appellant and recovery of the  dead body of the deceased concealed inside a small tin box.   He is the attested witness of the recovery Memos Ex.Ka.6, Ex.  Ka.3 and Ex. Ka.20.  Nothing is brought on record by the  appellant to infer that this witness is an interested witness to  the prosecution or he has deposed falsely against the  appellant.   P.W.7- Satyavrat, at the relevant time, was posted as  Clerk in the Telegraphic Office, Dehradun.  On 25.07.1979, he  was on trunk calls booking duty.  He produced on record  receipt No.52 in Book No.4758 dated 25.07.1979 issued and  signed by him.  The receipt would prove that on 25.07.79 at  about 8.50 a.m. the telephone caller had booked an ordinary  telephone call from Dehradun to some person at Telephone  No. 55 and the said call matured at about 9.00 a.m.  It has  come in the evidence of P.W.4, uncle of the deceased, that  number of their joint telephone installed at Gol Market, Dak  Patthar is 55.  The evidence of P.W.7 would establish an  additional link in the circumstances that in all probability it  was the appellant who booked a trunk call from Dehradun to  telephone number of P.W. 3, father of the deceased, for  making demand of ransom money for the release of his son  Sandeep. P.W.8-Jeet Singh, Sub-Inspector, conducted the  investigation.  He has testified the arrest of the appellant on  26.07.1979, and recovery of the dead body of the deceased  concealed inside a small tin recovered from the inner room of  the appellant after breaking open the locks of the doors as also  the recovery of a pair of Chappals of the deceased from a water  drain located at the backside of the house of the appellant.  He  denied the suggestion of the appellant that the appellant was  in fact arrested on 26.07.1979 at 3.30 p.m. in the house of his  brother-in-law at Dehradun. P.W.5-Dr. P.D. Jakhmola was posted as Medical Officer,  Dehradun in the year 1979.  He examined the dead body of  Sandeep at about 12.40 p.m. on 27.07.1979.  He noticed  blisters on the body.  Eye balls were bulging out and the  tongue was protruding.  Froth mixed with blood was coming  out from both the nostrils.  He found ligature mark all around  the neck of the deceased, which was somewhat depressed and

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horizontal.  The width of the ligature mark was 4 cms. and its  colour was brownish.  According to the Doctor, there was  excavation of blood under the ligature mark as well as in the  muscles of the neck, which could be caused by tying a piece of  cloth like Ex.P-3.  In the opinion of the Doctor, the cause of  death was due to strangulation and the death was possible in  the night of 24.07.1979 at about 8.00 p.m.  The defence has  chosen not to put any question to the Doctor in the cross- examination. The evidence of P.W.1, P.W.2, P.W.3, P.W.6,  P.W.8 and  P.W.9 is  natural,  convincing and trustworthy.  There is no  material on record from which an inference can be drawn that  these witnesses have implicated the appellant in a false case.   On independent analysis and scrutiny of the evidence of these  witnesses, they fully establish the case of the prosecution  against the appellant.  There is no reason to disbelieve them.   When the news of disappearance of the deceased was spread  over in the town, all the neighbourers and the relatives of P.W.  3 took part in the search of the deceased except the appellant  though he was on visiting terms and having good relations  with the father and other members of the family of the  deceased. D.W.1 - Smt. Asha Saxena, wife of the appellant, in her  deposition stated that she accompanied her husband to  Uttarkashi on 10.7.1979 where her father was posted.  On  23.7.1979, they both went to Dehradun and on 24.7.1979  from Dehradun they had gone to Dak Pathhar to get their  house cleaned.  It is her evidence that in the evening of  24.7.1979, she and her husband went back to Dehradun.     D.W.2, Vijay Singh, is the friend of the appellant.  He  deposed that on 23.07.1979 when he was going to Mussorie,  he had seen the appellant present at the Mussorie Bus Stand.   He invited the appellant for dinner on 24.07.1979 and the  appellant and his wife D.W.1 both joined him for dinner. D.W.3-Mahendra Pratap Saxena is the brother-in-law of  the appellant and has repeated the same version as stated by  D.W.1 and D.W.2. The evidence of the defence witnesses has been rightly  discarded and disbelieved by the courts below as the defence  witnesses are highly interested witnesses.  Suffice it to say  that in case there was any iota in the truth of their testimony,  they would not have kept silent for more than a year from the  day when the appellant was arrested at Dehradun as per their  version till their statements were recorded by the trial court. The presence of P.W.4 - Rajesh Kumar, P.W. 6 \026 Brij  Mohan Gupta and P.W. 9 \026 Jagdish Prasad along with the  police party in the evening of 26.07.1979  at the house of the  appellant has not been doubted by him in his statement  recorded under Section 313 Cr.P.C.  The appellant has also  admitted the recovery of the dead body of Sandeep concealed  in a tin box in the inner room of his quarter.  It is proved on  record by the prosecution that the appellant was on leave from  10.07.1979 to 30.07.1979.  The appellant also admitted that  he accompanied by his wife had gone to Uttarkashi on  10.07.1979 where his father-in-law was working.  His plea was  that on the morning of 24.07.1979 he and his wife both had  gone to Gol Market, Dak Pathhar from Dehradun to get their  quarter cleaned and after doing the cleaning work, they took  breakfast at about 2.00 p.m. and then purchased some  biscuits from the shop of P.W.3.  In the evening at about 5.00  p.m. on the same day, he and his wife again returned to  Dehradun.  This plea of the appellant cannot be accepted as it  is not plausible, satisfactory and believable.  The trial court as  well as the High Court have rightly disbelieved the defence  story of the appellant in the light of the cogent and more

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satisfactory evidence led by the prosecution in this case. The pair of Chappals of the deceased which he was  wearing on the fateful evening was recovered by the  Investigating Officer in the presence of P.W.4, P.W.6 and other  persons at the instance of the appellant from the water drain  located at the backside of the quarter of the appellant which  were found smeared with mud.  The unrealistic and false plea  put forth by the appellant stating that it was possible for some  unknown person to have committed the murder of Sandeep  and then having concealed the dead body in the inner room of  his quarter is, itself, an additional circumstance leading  support to the other impelling circumstances unfailing  pointing out the guilt of the accused.  It is clear from the  statement of the appellant recorded under Section 313 Cr.P.C.  and his defence witnesses that the appellant and his wife,  both had gone to Uttarkashi to meet his father-in-law who was  working there.  The relationship of the appellant and his  father-in-law and other family members was cordial and in  such circumstances, the plea of the appellant that the  residents of Punjabi community of Dak Pathhar were not  happy with the marriage of the appellant being a non-Sikh  person with Smt. Asha Saxena D.W.1 has been disbelieved by  the courts below and in our view, rightly so as there is no iota  of evidence led by the appellant to substantiate any such  allegation.  Having given our careful consideration to the  submissions made by the learned counsel for the parties and  in the light of the convincing and trustworthy evidence of the  witnesses, who are quite natural and in the background of the  principles highlighted above, we are of the view that there are  number of impelling circumstances attending this case leading  to an irresistible and inescapable conclusion that it was the  appellant and the appellant alone who caused the death of  Sandeep, an innocent child, by strangulating him and then  concealing his body inside a tin box in the inner room of the  quarter exclusively occupied by the appellant.  The evaluation  of the findings recorded by the trial court which are accepted  by the High Court does not suffer from any illegality, manifest  error or perversity nor it has overlooked or wrongly discarded  any vital piece of evidence.  Hence, we hold that the findings of  facts recorded by the courts below do not call for any  interference.  In the result, there is no merit in this appeal and it is  dismissed accordingly.