Co-Operative Bank (Mumbai) Ltd. Vs. Co-Operative Bank Employees Union  Insc 318 (22 March 2007)
CJI K.G. BALAKRISHNAN, LOKESHWAR SINGH PANTA & D.K. JAIN
[Arising out of S.L.P. (Civil) No.8377 of 2005) D.K. JAIN, J.:
2. In relation to a Multi-State Co-operative Bank carrying on business in
more than one State, which government Central or State, is the "appropriate
government" for the purposes of the Industrial Disputes Act, 1946 (for
short "the ID Act"), is the short question for consideration in this
3. The Appellant-Bank (hereinafter referred to as "the Bank") was
originally registered under the Maharashtra State Co-operative Societies Act,
1960. As the Bank had a number of branches outside Maharashtra,
subsequently, it got registered under the Multi-State Co-operative Societies
Act, 1984. It is in the banking business and is governed by the provisions of
the Banking Regulation Act, 1949 (for short "the BR Act"). The
respondent is a trade union and represents workmen employed in the Bank.
4. Mainly aggrieved by transfer of eleven employees from one place to
another, alleging it as an act of victimisation, the respondent filed a
complaint against the Bank under Section 28 of the Maharashtra Recognition of
Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short
"the MRTU & PULP Act"), along with an application for interim
relief, before the Industrial Court at Mumbai.
While resisting the complaint, the Bank raised certain preliminary issues of
jurisdiction and maintainability of the complaint under the MRTU & PULP
Act. The plea of the Bank was that as it was engaged in the business of banking
and is a Banking Company as defined in Clause (c) of Section 5 of the BR Act,
the appropriate government would be the Central Government and therefore, the
provisions of the MRTU & PULP Act, a State Act, were not applicable.
The Industrial Court
upheld the objection and ordered that the complaint may be returned to the
respondent for seeking relief before an appropriate forum.
5. The respondent questioned the validity of the said order by preferring a
writ petition in the High Court.
Allowing the writ petition, the learned single Judge came to the conclusion
that for the "appropriate Government" to be the Central Government it
was necessary that the Bank must be a Company incorporated under the Companies Act, 1956,
which requirement was missing in the present case. He observed, that even
though the respondent may be carrying on banking business, yet it is not a
Company as defined under Section 5(d) of the BR Act. Inter-alia, holding that
the definition of Banking Company would not include a Co-operative Bank, which
would be regulated under the provisions of the Maharashtra State Co-operative
Societies Act, the learned Judge set aside the order of the Industrial
Court and remanded the matter back to that Court
for decision on merits.
6. Being aggrieved, the Bank filed a Letters Patent Appeal before the
Division Bench. Inter-alia, observing that Section 2(bb) of the ID Act is an
instance of legislation by incorporation and not legislation by reference and,
therefore, the amendments made in the BR Act after 1949 cannot be read into the
ID Act, Division Bench came to the conclusion that the appropriate Government
in the present case would be the State Government. In other words, the Division
Bench held that for the purpose of deciding which is the "appropriate
government" the expression "Banking Company" will have to be
read, as it existed in BR Act of 1949 and that the subsequent amendments made
vide Banking Regulation Act, 1965 had to be ignored. Being aggrieved, the Bank
is before us by special leave.
7. We have heard Mr. Jamshed Cama, learned senior counsel appearing on
behalf of the Bank and Mr. Chander Uday Singh, learned senior counsel on behalf
of the respondent.
8. On behalf of the appellant it was contended that Section 2(bb) of the ID
Act creates its own corporate entity, i.e., multi-State Banking Company and
reference to the BR Act is for the limited purpose of identifying one kind of
banking institution it brings in. Thus, there is no question of such
multi-State Banking Company referred to in the BR Act of being bodily lifted in
the ID Act by legislative incorporation of the BR Act, 1949 and, therefore,
when the expression "Banking Company" was expanded in 1965 to include
co-operative banks, such co-operative banks also became banking companies under
the BR Act and if any of these newly included banking companies operate in more
than one State, then they also become multi-State Banking Companies for the
purpose of Section 2(bb) of the ID Act. It is asserted that introduction of
definition "Banking Company" in the first part of Section 2(bb) of ID
Act is a case of referential legislation and not legislation by incorporation.
Laying emphasis on the Industrial Disputes (Banking and Insurance Companies)
Act, 1949 (for short "the IDBIC Act") it was submitted by the learned
counsel that the IDBIC Act mandates that in respect of multi-State Banking and
Insurance Companies the appropriate Government for all industrial disputes
would only be the Central Government and, therefore, the expression
"Banking Company" in Section 2(bb) of the ID Act must be read in
conjunction with the object and purpose of IDBIC Act so as to bring ID Act into
syne with the IDBIC Act. The submission is that being aware of the malice in
the industrial field relating to multi-State Banks and Insurance Companies,
IDBIC Act was enacted to bring all multi-State Banking and Insurance Companies
under the control of the Central Government as appropriate Government, to
obviate the difficulties being faced by the banks and insurance companies,
having branches outside one State, inter-alia in the form of lack of uniformity
of service conditions and industrial peace.
9. Per contra, learned counsel for the respondent submitted that the
doctrine of statutory incorporation squarely applies in the present case, as
the definition of "Banking Company" in the ID Act had been bodily
lifted from the BR Act. Moreover, the definitions in Sections 2(a), 2(bb) and
2(kk) of the ID Act are exhaustive. Subsequent amendments from time to time in
Section 2(bb) to include certain specified institutions clearly show the
legislative intent not to give an expansive interpretation to the original
words. It is contended that the fact that the Parliament expressly amended
Section 2(bb) to include State Bank of India, notwithstanding amendments to the
BR Act on 22nd October, 1956 to apply that Act to the State Bank of India and
corresponding new banks is a strong indicator of the legislative intent that
amendments to the BR Act were not intended to apply automatically to Section
2(bb) of the ID Act.
10. In order to appreciate the contentions raised, it would be necessary to
refer to some salient statutory provisions, which form the background of the
11. The I.D. Act came into force with effect from 1st April, 1947. The term
"appropriate Government" was defined in Section 2(a). However,
sub-clause (i) of clause (a) came to be amended in the year 1949 by the
amendment Act 54 of 1949, whereby in relation to any industrial dispute concerning
a "Banking Company" or Insurance Company, the Central Government was
declared to be the "appropriate Government". Simultaneously, Section
2(bb) was inserted by the same Act, defining the "Banking Company".
Needless to add that it is only those banking companies which fall within the
ambit of the definition in the said provision that the Central Government would
be the appropriate government. With respect to other banking companies, the
State Government, in which the bank is situated, would be the appropriate
government in terms of sub-clause (ii) of clause (a) of Section 2 of the ID
Section 2(bb) which is at the centre of controversy reads as under:
"2(bb). "Banking Company" means a banking company as defined
in Section 5 of the Banking Companies Act, 1949 (10 of 1949) having branches or
other establishments in more than one State and includes (the Export-Import
Bank of India) (the Industrial Reconstruction Bank of India), (the Industrial
Development Bank of India), (the Small Industries Development Bank of India
established under section 3 of the Small Industries Development Bank of India
Act, 1989), the Reserve Bank of India, the State Bank of India (a corresponding
new bank constituted under Section 3 of the Banking Companies (Acquisition and Transfer
of Undertakings Act, 1970 (5 of 1970) (a corresponding new bank constituted
under Section 3 of the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1980 (40 of 1980), and any subsidiary bank), as defined in
the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959)."
From a bare reading of the Section it is clear that in order to fall within
the meaning of this definition, a "Banking Company" has to satisfy
two requirements, viz: (i) it should be a "Banking Company" as defined
in Section 5 of the Banking Companies Act, 1949 and (ii) it should have
branches or other establishments in more than one State.
It may also be noted that some banks, by name, have specifically been
included in the definition. Section 5 of the BR Act gives interpretation to
various expressions used in the said Act. As per clause (c) of Section 5 the
expression "Banking Company" means any "Company" which
transacts the business of banking in India. According to Section 5(b)
"banking" means the accepting, for the purpose of lending or
investment, of deposits of money from the public, repayable on demand or
otherwise and withdrawable by cheque, draft, order or otherwise. The expression
"Company" has been interpreted in clause (d) of Section 5 to mean any
Company as defined under Section 3 of the Companies Act, 1956
and includes foreign company within the meaning of Section 591 of that Act.
Indubitably, the appellant-Bank is not a Company within the meaning of the said
clause. However, by the Act 23 of 1965 several amendments were carried out in
the BR Act with effect from 1st March, 1966, widening the scope of the said
Act. By that amendment Part-V, containing only one Section 56, providing for
application of BR Act to Co-operative Banks, like the appellant-Bank, was
inserted. Section 3 was substituted to declare that the provisions of the BR
Act shall apply to a Co-operative Society only in the manner and to the extent
specified in Part-V thereof.
12. The main question raised for determination is whether the afore-noted
amendments to the BR Act, particularly insertion of Section 56 in the new
format w.e.f. 1st March, 1966, after the insertion of the definition of
"Banking Company" in the ID Act by Act 54 of 1949 will apply mutatis
mutandis to the matters governed by the ID Act?
13. As there is no indication in the ID Act as to the applicability or
otherwise of the subsequent amendments in the BR Act, the question posed has to
be answered in the light of the two concepts of statutory interpretation,
namely, incorporation by reference and mere reference or citation of one
statute into another. Thus, answer to a rather intricate question hinges on the
test whether at the time of insertion of the definition of the term
"Banking Company" in the form of sub-section (bb) of Section 2 of the
ID Act by the 1949 Act it was a mere reference to the Banking Companies Act,
1949 (later re-christened as the Banking Regulation Act) or the intendment of
the legislature was to incorporate the said definition as it is in the ID Act?
14. Before adverting to the said core issue, we may briefly notice the
distinction between the two afore-mentioned concepts of statutory
interpretation, viz., a mere reference or citation of one statute in another
and incorporation by reference. Legislation by incorporation is a common
legislative device where the legislature, for the sake of convenience of
drafting incorporates provisions from an existing statute by reference to that statute
instead of verbatim reproducing the provisions, which it desires to adopt in
another stature. Once incorporation is made, the provision incorporated becomes
an integral part of the statute in which it is transposed and thereafter there
is no need to refer to the statute from which the incorporation is made and any
subsequent amendment made in it has no effect on the incorporating statute. On
the contrary, in the case of a mere reference or citation, a modification,
repeal or re-enactment of the statute, that is referred will also have effect
on the stature in which it is referred. The effect of "incorporation by
reference" was aptly stated by Lord Esher, M.R. In re: Wood's Estate, Ex
parte Her Majesty's Commissioners of Works and Buildings in the following words
at page 615:
"If a subsequent Act brings into itself by reference some of the
clauses of a former Act, the legal effect of that, as has often been held, is
to write those sections into the new Act just as if they had been actually
written in it with the pen, or printed in it, and, the moment you have those
clauses in the later Act, you have no occasion to refer to the former Act at
15. The Privy Council in Secretary of State for India in Council vs.
Hindustan Co-operative Insurance Society Ltd. , while amplifying the doctrine
of incorporation, observed as follows:
"Their Lordships regard the local Act as doing nothing more than
incorporating certain provisions from an existing Act, and for convenience of
draft doing so by reference to that Act, instead of setting out for itself at
length the provisions which it was desired to adopt The independent existence
of the two Acts is therefore recognized; despite the death of the parent Act,
its offspring survives in the incorporating Act. Though no such saving clause
appears in the General Clauses Act, their Lordships think that the principle
involved is as applicable in India as it is in this country."
16. The doctrine of legislation by incorporation and its effect has been
dealt with by this Court in a catena of decisions. In Ram Sarup vs. Munshi
& Ors. a Constitution Bench held that repeal of Punjab Alienation of Land
Act, 1900 had no effect on the continued operation of the Punjab Pre-emption
Act, 1913 and that the expression "agricultural land" in the later
Act had to be read as if the definition of the Alienation of Land Act had been
bodily transposed into it. After referring to what Brett, L.J. said on the
effect of incorporation in Clarke vs. Bradlaugh , namely, "where a statute
is incorporated, by reference, into a second statute the repeal of the first
statute by a third does not affect the second", it was observed as
follows:- "Where the provisions of an Act are incorporated by reference in
a later Act the repeal of the earlier Act has, in general, no effect upon the
construction or effect of the Act in which its provisions have been
* * * In the circumstances, therefore, the repeal of the Punjab Alienation
of Land Act of 1900 has no effect on the continued operation of the Pre-
emption Act and the expression 'agricultural land' in the later Act has to be
read as if the definition in the Alienation of Land Act had been bodily
transposed into it."
17. The same principle was applied in Bolani Ores Ltd.
vs. State of Orissa . In that case this Court was considering the question
regarding the interpretation of Section 2(c) of the Bihar and Orissa Motor
Vehicles Taxation Act, 1930 (for short "the Taxation Act"). This
Section when enacted adopted the definition of "motor vehicle" contained
in Section 2(18) of the Motor Vehicles Act, 1939.
Subsequently, Section 2(18) was amended by Act 100 of 1956 but no corresponding
amendment was made in the definition contained in Section 2(c) of the Taxation
Act. The argument advanced was that the definition in Section 2(c) of the
Taxation Act was not a definition by incorporation but only a definition by reference
and the meaning of "motor vehicle" in Section 2(c) must, therefore,
be taken to be the same as defined from time to time in Section 2(18) of the Motor Vehicles
The argument was rejected by this Court and it was held that this was a case of
incorporation and not reference and the definition in Section 2(18) of the Motor Vehicles Act, 1939,
as then existing, was incorporated in Section 2(c) of the Taxation Act and
neither repeal of the Motor Vehicles Act, 1939
nor any amendment in it would affect the definition of "motor
vehicle" in Section 2(c) of the Taxation Act.
18. The decision of this Court in Mahindra & Mahindra same principle.
There the question was in regard to the effect of subsequent amendment in
Section 100 of the Code of Civil Procedure, 1908 on Section 55 of the
Monopolies and Restrictive Trade Practices Act, 1969 (for short "The MRTP
Act"). Section 55 of the MRTP Act provides for an appeal to this Court
against the orders of the Monopolies and Restrictive Trade Practices Commission
on "one or more of the grounds specified in Section 100 of the Code of
Civil Procedure, 1908". Section 100 of the Code of Civil Procedure was
substituted by a new Section in 1976, which narrowed the grounds of appeal
under that Section. In construing Section 55 of the MRTP Act this Court held
that Section 100 of the Code as it existed in 1969 was incorporated in Section
55 and the substitution of new Section in the code, abridging the grounds of
appeal, had no affect on the appeal under Section 55 of the MRTP Act.
19. The principle laid down in these decisions was reiterated in U.P. Avas
Evam Vikas Parishad vs. Jainul Islam & Anr. and lately in P.C. Agarwala vs.
Payment of Wages Inspector, M.P. & Ors. It is, therefore, clear from the
afore-noted decisions that if there is a mere reference to a provision of one
statute in another without incorporation, then, unless a different intention
clearly appears, the reference would be construed as a reference to the
provision as may be in force from time to time in the former statute. But if a
provision of one statute is incorporated in another, any subsequent amendment
in the former statute or even its total repeal would not affect the provision
as incorporated in the latter statute.
20. However, the distinction between incorporation by reference and adoption
of provisions by mere reference or citation is not too easy to highlight. The
distinction is one of difference in degree and is often blurred. The fact that
no clear-cut guidelines or distinguishing features have been spelt out to
ascertain whether it belongs to one or the other category makes the task of
identification difficult. The semantics associated with interpretation play
their role to a limited extent. Ultimately, it is a matter of probe into
legislative intention and/or taking an insight into the working of the
enactment if one or the other view is adopted. Therefore, the kind of language
used in the provision, the scheme and purpose of the Act assume significance in
finding answer to the question. (See:
Collector of Customs vs. Sampathu Chetty & Anr. ). The doctrinaire
approach to ascertain whether the legislation is by incorporation or reference
is, on ultimate analysis, directed towards that end. (See: Maharashtra State
Road Transport Corporation vs. State of Maharashtra &
Ors. ) Thus, the question for determination is to which category the present
21. The plain language of Section 2(bb) of the ID Act makes the intention of
the legislature very clear and we have no hesitation in holding that reference
to Section 5 of the Banking Companies Act, 1949 in the said provision is an
instance of legislation by incorporation and not legislation by reference.
22. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949
used the word "means.. and includes" and was confined to a
"Banking Company" as defined in Section 5 of the Banking Companies
Act, 1949, having branches or other establishments in more than one province
and includes Imperial Bank of India. Similarly, Section 2(kk), which was also
introduced by Act 54 of 1949, defines Insurance Company as "an Insurance
Company defined in Section 2 of the Insurance Act, 1938 (IV of 1938), having
branches or other establishments in more than one province". It is trite
to say that when in the definition clause given in any statute the word
"means" is used, what follows is intended to speak exhaustively. When
the phrase "means" is used in the definition, to borrow the words of
Lord Esher M.R. in Gough vs. Gough , it is a "hard and fast"
definition and no meaning other than that which is put in the definition can be
assigned to the same. (Also see:
P. Kasilingam and Ors. vs. P.S.G. College of Technology and others ). On the
other hand, when the word "includes" is used in the definition, the
legislature does not intend to restrict the definition; makes the definition
enumerative but not exhaustive. That is to say, the term defined will retain
its ordinary meaning but its scope would be extended to bring within it
matters, which in its ordinary meaning may or may not comprise. Therefore, the
use of the word "means" followed by the word "includes" in
Section 2(bb) of the ID Act is clearly indicative of the legislative intent to
make the definition exhaustive and would cover only those banking companies
which fall within the purview of the definition and no other.
23. Moreover, Section 2(bb) has subsequently been amended from time to time
by various amendments to include certain specified banks and institutions,
which would otherwise not fall within the exhaustive definition of the
"Banking Company" in Section 2(bb) read with Section 5(c), 5(b) and
5(d) of the BR Act. It is plain that if the Parliament had intended an
expansive interpretation of the original words, then there would have been no
reason whatsoever to keep amending the definition from time to time. In our
view, therefore, the language of Section 2(bb) clearly demonstrates the
legislative intent not to bring within its ambit all the banks transacting the
business of banking in India.
24. We are, therefore, of the opinion that introduction of the Banking
Companies Act, 1949 in clause (bb) of Section 2 of the ID Act is a case of
incorporation by reference; it has become its integral part and therefore,
subsequent amendments in the BR Act would not have any effect on the expression
"Banking Company" as defined in the said Section.
25. At this juncture, we may also consider an alternative submission made on
behalf of the Bank that even if it is assumed that the provisions of Section 5
of the BR Act were introduced into Section 2(bb) of the ID Act by way of
legislative incorporation, two of the exceptions, namely, exceptions (c) and
(d), carved out by this Court in State of Madhya Pradesh vs. M.V. Narasimhan
and reiterated in P.C. Agarwala's case (supra), would apply in the instant
case. The exceptions so enumerated are:
(a) Where the subsequent Act and the previous Act are supplemental to each
(b) Where the two Acts are in pari materia;
(c) Where the amendment in the previous Act, if not imported into the
subsequent Act also, would render the subsequent Act wholly unworkable and
ineffectual; and (d) Where the amendment of the previous Act, either expressly
or by necessary intendment, applies the said provisions to the subsequent Act.
26. In our view, there is no substance in the contention.
The ID Act is a complete and self contained Code in itself and its working
is not dependant on the BR Act. It could not also be said that the amendments
in the BR Act either expressly or by necessary intendment applied to the ID
We, therefore, reject the contention advanced by learned counsel for the
appellant on this aspect as well.
27. Further, as noticed above, the definition of the "Banking
Company" in clause (bb) of Section 2 of the ID Act being exhaustive, it is
only with respect to the "Banking Company" falling within the ambit
of the said definition in the ID Act, that the Central Government would be the
appropriate government, which admittedly is not the case here.
28. In the light of the analysis we have made of the provision contained in
Section 2(bb) of the ID Act, we deem it unnecessary to dilate on the impact of
the IDBIC Act on the ID Act.
29. For all these reasons, we have no hesitation in upholding the view taken
by the High Court that for the purpose of deciding as to which is the
"appropriate government", within the meaning of Section 2(a) of the
ID Act, the definition of the "Banking Company" will have to be read
as it existed on the date of insertion of Section 2(bb) and so read, the
"appropriate government" in relation to a multi-state co-operative
bank, carrying on business in more than one state, would be the State
30. In the result, the appeal fails and is dismissed accordingly. The
appellant shall pay the costs of the respondent throughout.
Narain Saxena Vs. State f Uttaranchal  Insc 268 (9 March 2007)
C. K. Thakker & Lokeshwar Singh Panta
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
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 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 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 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
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
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 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 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
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 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
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
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
(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 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
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 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
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
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
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 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 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
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
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 Brij Mohan Gupta and P.W. 9 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
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
In the result, there is no merit in this appeal and it is dismissed