State
of U.P Vs. Bal Kishan Das & Anr [1996]
INSC 1350 (29 October
1996)
M.K.
Mukherjee, S.P. Kurdukar
ACT:
HEAD NOTE:
Present:
Hon'ble
Mr. Justice M.K. Mukherjee Hon'ble Mr. Justice S.P. Kurdukar (Pramod Swarup,)Adv.
for(A.S.Pundir) Adv., Ms,Prerna Swarup and Prashant Choudhary; Adv. for the
appellant R.P. Gupta, Adv. for the Respondents.
The
following Judgment of the Court was delivered M.K.MUKHERJEE, J.
These
three appeals have been heard together as they arise out of a common Judgment
rendered by the Rajasthan High Court disposing of three criminal appeals. Facts
relevant for disposal of these appeals are as under.
Rama,
(deceased) was the daughter of Shri S.S. Kela (PW 35) and Smt. Vimlawati (PW
33) of Kasganj, District Etah (U.P.). She held a post graduate degree in Hindi
literature and was active in games. On May 6, 1981 she was married to Suresh Narain of
Saharanpur (U.P.) and since then she was living with her husband in the house
of her in-laws at Mohalla Memaran (Khalapur) in Saharanpur.
In the
following year (1982) the festival of 'Holi' fell on March 9; and as, according
to the custom prevalent in their community Rama could not celebrate the
festival in the first year of her marriage in the house of her in-laws, her
father came to fetch her. Her in-laws however did not permit her to go with her
father but sent her to the house of her elder sister Smt. Malti Devi (P.W 30),
who was married to one Satish Kumar and was living in a neighbouring Mohalla. Rama
however came back to her matrimonial home on the following day (March 10, 1982).
In the
afternoon of March 14,
1982, Bal Kishan Dass,
father-in-law of Rama, lodged a report (Ex.P.31) with the Kotwali (City) Police
Station to the effect that she was missing from the house and in spite of their
best efforts they were unable to trace her whereabouts. It was reported that Rama
had retired for the night as usual but in the morning it was found that the
main door of the house was wide open and she was not there. It was also
reported that she was a victim cf occasional fits for which she was being
treated. It was further mentioned that when she went to bed in the previous
night she was wearing a red printed cotton saree, a sweater of orange colour,
ear-rings, a neckchain, some glass-bangles of 'maroon' colour, two golden rings
on the fingers, silver 'paizeb' on ankles and 'Bichwas' on toes. Along with the
report, her photograph (Ex.P.33) was also handed over to the police. Before
lodging the report Bal Kishan Dass had sent telegraphic message to Rama's father.
Similar messages were also sent to Khamgaon in the State of Maharashtra where
Suresh Narain, husband of Rama, was supposed to have gone in the night of March
10, 1982 to attend a marriage and other places where Suresh was expected to
visit after attending the marriage.
On
getting information from Mahesh Narain, elder brother of Suresh, that Rama was
missing Malti along with her husband Satish went to the house of Bal Kishan.
She however was not satisfied with the explanation given by the mother-in-law
of Rama about her disappearance. Returning therefrom she and her husband
telephonically contacted Dr. S.S. Rathi (P.W.12), a professor of Delhi
University to whom Rama's another sister Sushma was married. Dr. Rathi was
requested to inform Shri Kela at Kasganj also. On the following day (March 15,
1982) Shri Kela, Dr. Rathi and Kanti Chand (PW 34), elder brother of Rama,
reached Saharanpur. Since Shri Kela was also not satisfied with the story of
mysterious disappearance of Rama as given out by the members of her husband's
family he lodged a report with the Saharanpur police station on the same day
(Ex.P.161).
Therein
he stated that when he last met her she told him that she was being tortured by
her in-laws. It was also stated in the report that earlier two of the
daughters-in- law of bal Kishan Das had died under mysterious circumstances.
Accordingly, Shri Kela asked the Station House Officer to make a proper
investigation into the matter in the light of the information given by him.
On
March 16, 1982, Bal Kishan Dass met Shri M.S. Bali, the Addl. Superintendent of
Police, Saharanpur and handed over to him an application (Ex.P.41) along with
an 'Inland' letter (Ex.P.59), which he claimed to have received by post.
The
inland letter, which was addressed to Bal Kishan Dass by one Ahmed Hasan, gave
the information that his son`s wife Smt. Rama was in his custody and that she
would be sent back only after he was paid two lacs of rupees. He (Bal Kishan)
was warned that any report to the Police and failure to pay the required ransom
at the desired place by March 18, 1982 would cost the life of the kidnapped
lady. The alleged abductor of Rama had asked him to enquire of his address from
Bharat Steels, Dehradoon Chowk, Saharanpur. Shri Bali directed the Kotwali
(City) Police Station to take necessary action in the matter.
Since
no action was taken by the Saharanpur police to trace out Rama her relatives
decided to approach the higher authorities. Accordingly, Dr. Rathi held talks
with his colleague Dr. K.S. Shukla (P.W.1l), Dean of Students Welfare in Delhi University and apprised him of the matter; and on March 24, 1982 along with others met the Minister
of State for Home Affairs of the Government of India. After getting an
assurance from the Minister that he would look into the matter when they were
returning from the Parliament House they met some press reporters and gave them
the news of Rama's missing.
In the
meantime, on March 17, 1982 at or about 1.00 A.M. when Kali Ram (P.W.5), a
Sanitary Jamadar, along with his men was washing platform No. 1 of New Delhi
Railway Station he found a green coloured hold-all lying abandoned and
unclaimed near a bench in front of the II Class Ladies Waiting Room. When he
tried to keep it aside he found it heavy and emitting bad smell. Suspecting
some foul-play he sent information to the Police Head Constable Kartar Singh
(P.W.2) of the Railway Police Station who, in his turn, informed Station House
Officer (S.H.O.) Ram Swaroop Yadav (P.W.38). On getting the information Shri Yadav
rushed to the site of the hold-all along with other police personnel.
On
opening the hold-all he first found a large gunny bag (Art.4) tied with a rope
(Art.15) beneath it another small gunny bag (Art.3) and then a gadda (Art.2).
When the large gunny bag was opened a decomposed and swollen corpse of a woman
aged about 25/26 years came out. On inspection Shri Yadav found that the
decomposed had a red printed saree (Art.5), a yellow petticoat (Art.7), a
woolen sweater of 'BADAMI' colour (Art.6) and a yellow cotton blouse under the
woolen blouse (Art.8) on her person. Besides, there were some glass bangles of
red colour (Art.12) around her left wrist and a few broken pieces of such
bangles (Art.13).
Shri Yadav
than recorded the statement of Kali Ram Jamadar (Ex.34) and forwarded the same
to the police station for registering a case. Kartar Singh H.C. registered
Crime No. 87/82 under Section 302 IPC vide F.I.R. Ex.P.3 at 3.26 A.M. Shri Yadav
got photographs of the dead body taken, held inquest upon it and then sent it
for post mortem examination. He seized the holdall, the gunny bags, the gadda
and the broken bangles and sealed them.
Dr.
L.T. Ramani (PW 17) held post mortem examination on the same day and found that
the deceased was aged about 25 years, medium complexioned (on fairerside), with
a well built body and of a height of 5'-2". Besides the clothes and the
bangles mentioned above, he found a 'tilli' in her left nostril. The body was
decomposed and fluid was oozing out of the nostrils. Her eye-balls were
decomposed, nails were blue and felling out and the tongue was protruding in
between the teeth. He removed the coir rope which was encircling the neck and
found a deep constricting groove, horizontally placed on the middle of the neck
over the thyroid cartilage all around the neck. The width of the ligature mark
varied from 1/2" to 3/4" at places. On internal examination of the
dead body Dr. Ramani found that the scalp tissues were normal, skull bones were
intact and brain was congested. On dissection of the neck tissues he found
effusion of blood there, hyoid bone intact and trachea contained fluid and was
congested. The ribs were intact. Lungs showed signs of decomposition and the
heart was decomposed and the chambers were empty. Dr. Ramani opined that the
ligature mark was caused by the rope present around the neck and was ante-
mortem. He further opined that the ligature was sufficient to cause death in
ordinary course of nature and that the deceased had died due to asphyxia
resulting from strangulation. As the dead body had been reported to have been
found in a hold-all Dr. Ramani opined that her death had taken place two to
three days before. Later, on June 4, 1982, when Shri Yadav the Investigating
Officer, further enquired of him whether the time between her death and the
autopsy could be more or less that what he had mentioned in his report, Dr. Ramani
it could be 4 to 5 days but in no case it could be later than the time he had
mentioned earlier. Dr. Ramani preserved the viscera, scalp and pubic hair and
handed over the same to the constable in sealed condition. The clothes and the
glass bangles were also handed over to the constable, but not in sealed
condition, as they were required for identification purposes. However, the 'tilli`
was removed from the nostrils of the deceased.
On
chemical examination of the viscera, Dr. K.S. Chabra (P.W.25), Senior
Scientific Officer cum Assistant Chemical Examiner of the Central Forensic
Science Laboratory, New
Delhi found that it
was positive for methyl alcohol.
After
the post mortem examination the dead body was kept in the mortuary for
identification and a Gazette notification in that behalf was also published.
Besides a pamphlet entitled 'Hue and Cry' (Ex.P.172), with the photograph of
the dead body and necessary particulars and details of her clothes, was
published and circulated.
Wireless
messages were also sent to the Police Commissioner and S.Ps. all over the
country as also to all the police stations in Delhi. Letters to the press and 'missing persons squad' were sent
for getting clues for the identification of the dead body. Since the dead body
was not identified within the next four days its last rites were performed by a
Sewa Samiti.
On March 25, 1982, Shri S.R. Yadav, the Investigating
Officer, came across a news captioned 'Vain search for Rama in the Hindustan
Times (English) in its issue of the above date (Ex.P.43). From the news item he
learnt that a deputation of the Delhi University Teachers had met the Minister
of State for Home Affairs in connection with the disappearance of a lady called
Rama who was reported to be missing since March 13, 1982. Since the names of Dr. Rathi
(P.W.12) and Dr.Shukla (P.W.11), besides others, were mentioned as the members
of the deputation, Shri Yadav contacted them. Dr. Rathi and his wife Smt. Sushma
could not however identify the deceased either from the photograph or the
clothes and bangles but they told Shri Yadav that Rama's elder sister, Smt. Malti
Devi who was also living in Saharanpur might possibly be in a postition to
identify.
Accordingly,
Shri Yadav requested Dr. Rathi and his wife to ask Smt. Malti Devi to come to Delhi.
On the
following day Smt. Malti Devi and her father Shri Kela (P.W.35) reached the New
Delhi Railway Police Station along with Dr. Rathi and Dr. Shukla. When the
photographs of the deceased were shown to them they could not identify but on
seeing the clothes and the glass bangles of the deceased, Smt. Malti Devi
identified them as belonging to Rama. The clothes and bangles having been
identified by Smt. Malti an identification memo (Ex.P.44) was prepared by Shri Yadav
and the clothes and glass bangles which had so far been kept open for
identification were duly sealed. Later on June 10, 1982 when the enlarged
photographs of the dead body were shown to Smt. Malti and her father they
identified the same as those of Rama.
The
identity of the dead body having been established, Shri Yadav went to Saharanpur.
There he contacted Bal Kishan Dass and Mahesh Narain and brought them to the
New Delhi Railway police station on March 29, 1982 to identify the belongings
of Rama. At the police Malkhana, when they were shown the clothes of the
deceased, they it is alleged, became nervous and began to look at each other. Shri
Yadav then found reasonable grounds to suspect them in the commission of the
murder of Rama and, therefore, arrested them.
After
their arrest both of them are alleged to have made certain incriminating
disclosures. Balkishandass is alleged to have made a statement leading to the
recovery of a golden chain (Art.20), a pair of golden 'churies' (Arts.21 and
22), a pair of gold ear-rings (Arts. 23 and 24), a gold ring (Art.25 a pair of
silver bichwas (Arts. 26 and 27) and a pair of silver 'Paizeb' (Arts. 28 and
29) from an almirah in his house at Saharanpur which were seized and sealed,
The ornaments were later on identified as belonging to the deceased. In course
of further search of the house, 7 large gunny bags were also recovered. Later Shri
S.R. Singh (PW 22) Senior Scientific Officer Cum-Asstt. Chemical Examiner to
the Government of India and head of the Physics Department Forensic Science
Laboratory, New Delhi on his examination and comparison of these gunny bags
with the one in which the dead body of Rama was found, opined that the bags
were quite similar to each other in their 'physical measurements' and other
general/accidental printing characteristics (Ext. P.99).
On
interrogation of the above two accused persons, namely, Bal Kishan Dass and
Mahesh Narain, it appeared to the Investigating Officer that Suresh Narain and Ashok
Kumar, a cousin of Suresh Narain were also involved in the murder of Rama.
Accordingly he also arrested them and continued with the investigation in the
light of further materials disclosed in course thereof. On completion of
investigation he filed chargesheet against the aforesaid four accused persons
before the Chief Judicial Magistrate, Saharanpur who committed the case to the
Court of Session, Saharanpur for trial. Before, however, the Sessions Judge, Saharanpur
could commence the trial, the case was transferred by an order of this Court,
to the Court of the Sessions Judge Bharatpur in the State of Rajasthan for
trial.
At the
commencement of the triaI a charge under Section 120 B read with Sections 302
and 201 IPC was framed against three of the accused persons, namely, Bal Kishan
Dass, Mahesh Narain and Suresh Narain. Against Bal Kishan and Mahesh Narain
additional charges under Sections 302 and 201 IPC and against Ashok Kumar only
a charge under Section 201 IPC was framed.
In the
absence of any eye-witness to bring home the above charges the prosecution
rested its case on circumstantial evidence; and for that purpose examined 42
witnesses and exhibited 195 documents. The circumstances which the prosecution
relied upon to prove its case are as under:
(i) Rama
was seen alive in her matrimonial home on March 12, 1982 by Smt. Balloo
(P.W.25), who was then working as a maid servant there;
(ii)
However, on the following morning (on March 13) Balloo did not see her in the
house; and in the same afternoon when Smt Shobha (P.W.41), a school friend of Rekha,
daughter of Bal Kishan Das, went to meet her she could not also find her.
(iii)
In that night, at or about 9.30 P.M. Mahesh Narain was seen by Rasul Ahmed
(P.W.9), a tea shop owner, to go to the house of Ashok Kumar.
(iv)
At or about 11 P.M. in the same night Mahesh Narain had
hired the rickshaw of Ishab Singh (P.W.8) and brought it to their house;
(v) A
little later Mahesh Narain and Ashok Kumar had loaded a hold- all (Art.l) in
that rickshaw and carried it to the Saharanpur Railway Station;
(vi)
Some two hours later the above two accused persons were seen at that Railway
Station with the hold- all by Ghanshyam Dass Maheshwari (P.W.10);
(vii}
On the following afternoon ( March 14, 1982) the same hold-all was seen by Gursewak
Singh (P.W.26), an Electrical Fitter of the Amritsar Railway Station, on
platform No.3 of that station;
(viii)
In the same afternoon Bal Kishan Dass had gone to Kotwali Police Station, Saharanpur
along with Mahesh Narain and lodged a false report that Rama was missing
(Ex.P.31) (ix) On March 16, 1982 Bal Kishan Dass and Mahesh Narain had handed
over an application ( Ex. P/41) along with a ransom letter (Ex.P/59) which was
a fabricated document, to the addl. Superintendent of Police Saharanpur;
(x)
The application (Ex.P/41), was typed by Anil Kumar (P.W.13) on his typewriter
at the behest of Mahesh Narain and Bal kishan Dass and signed by the latter;
the ransom letter (Ex.P/59) was also typed on the same typewriter after it (the
typewriter) was procured from Anil Kumar by Mahesh Narain and Ashok Kumar on
the pretext of getting some confidential matters typed.
(xi)
In the night of March 17,1982 a dead body of a woman was recovered from the
hold-all (Art.1) when it was lying on platform No.1 of New Delhi Railway
Station;
(xii)
The dead body was that of Rama, as testified by Malti (P.W.30) and her father Shri
Kela (P.W.35).
(xiii)
Rama met with her death owing to strangulation;
(xiv)
Mahesh Narain and Bal Kishan Dass had the opportunity to commit the murder;
(xv)
Bal Kishan Dass, Mahesh Narain & Suresh Narain had hatched a conspiracy in
the evening of March 10,1982 to commit the murder of Rama;
(xvi)
Bal kishan Dass and his two sons had a strong motive to commit the murder as
the parents of Rama failed to meet their dowry demands.
(xvii)
Some of the ornaments that Rama was wearing immediately before her death were
recovered from the house of Bal Kishan Dass pursuant to his statement;
(xviii)
Seven gunny bags, similar to the one in which the dead body of Rama was found,
were recovered from the house of the Bal Kishan Dass; and (xix) Bal Kishan Dass
made an extra-judicial confession before Kamta Prasad (P.W.31).
The
common defence of the four accused persons, who pleaded not guilty to the
charges framed against them, was that they had been falsely implicated. They
disputed the identity of the deceased as Rama as also the claim of the
prosecution that the deceased died due to strangulation. In disputing the cause
of death they examined Dr. B.P. Jangid (D.W.4), a medical jurist. In his
examination under Section 313 Cr.P.C. Bal Kiahan Dass stated that he was a man
of principles and did not believe in either taking or giving dowry in
marriages. He arrested that he had neither demanded nor received any dowry from
Shri Kela and that his relations with him had throughout been cordial. He
admitted that on the occasion of 'Holi' Rama had gone to stay with her elder
sister Malti for the night but disputed her (Malti's) claim that she had
visited his house on March 12, 1982. He added that his was a well-to-do family
and that his eldest son Ramesh Narain was the Secretary of the Maheshwari Samaj,
Saharanpur whereas Munshi Lal, father-in-law of Malti, was the Adhyaksh of that
Samaj. Since Satish Chand, son of Munshi Lal and husband of Malti, was a man of
bad character and was convicted and sentenced for immoral trafficking he (Bal Kishan)
had asked Munshi Lal to step down from the office of the Adhyaksh. This had
enraged Munshi Lal and his family and it was he who had left no stone unturned
in getting him and the members of his family falsely implicated in the case
with the help of Shri Kela and his son Santi Chandra. He asserted that Rama had
left the house of her own during the night between March 13 and 14, 1982. He
further stated that on coming to know of Rama's missing from the house he had
sent Mahesh Narain to enquire of Rama from Malti and had sent a telegrarhic
message to Shri Kela at Kasganj. As Suresh Narain had - gone to Khamgaon to
attend the marriage of his niece there, he sent telegraphic message there for
his early return. He further stated that he had lodged the report (Ex.P.31)
with the local police and on getting the ransom letter (Ex.P/59) on March 16,
1982 by post, he had handed over the same along with his application (Ex.P/41)
to the Saharanpur Police. He denied to have ever conspired with his sons to
murder Rama and to have made any extra judicial confession before Kamta Prasad
(P.W.31) He arrested that his two sons (the two accused) and daughter Rekha
were taken by the Delhi Railway Police from his house in the night of March 26,
1982 and in Delhi he came to know that accused Ashok Kumar and Smt. Balloo
(P.W.25) were also brought likewise. He denied to have made any statement to the
police leading to the alleged recovery of the ornaments (Ex.20 to 29) from his
house. He asserted that he himself was a money lender by profession and
advanced loans to needy persons against pledge of ornaments and, therefore had
sufficient knowledge about the purity of gold and from such knowledge he could
say that the above ornaments, stated to be of gold, were actually not so. In
support of his assertion he examined two goldsmiths, namely, Amar Singh (D.W.1)
and Om Prakash (D.W.5).
In
their examination under Section 313 Cr.P.C. Suresh Narain and Mahesh Narain
also made similar statements.
Suresh
Narain stated that he had left Saharanpur for Khamgaon in the night of March
10, 1982 and on getting the telegram from his father he returned on March 18,
1982. He arrested that his wife had not been killed and he was still in search
of her. Mahesh Narain stated that he was an M.Sc. in Agriculture and was
employed as a Quality Inspector with Food Corporation of India in its branch
office at Saharanpur He further stated that he had gone to Kasganj on March 10,
1982 and had returned therefrom along with the brother of his wife on the
following day. He examined his brother-in law Kaushal Baboo Rathi (DW.2) in
support of this version.
It was
further stated by him that on March 11, 1982 the Saqai ceremony of Rekha with
the son of Seth Krishna Kumar (D.W.3) was to be performed at his house but that
had been postponed to March 21, 1982. According to him the question of his
entering into a criminal conspiracy to murder Rama on the eve of such an
auspicious occasion could not have arisen. He pointed out that he himself was
married in the month of February 1982. He also denied to have taken the holdall
(Art.1) to the Saharanpur Railway Station. Ashok Kumar denied that he was ever
called by Rasul Ahmad (P.W.9) from his house or had gone to the Saharanpur
Railway Station with the hold-all in the rickshaw of Ishab Singh and had talks
with Ghanshyam. Ghanshyam's version that he had gone to the Railway Station to
send off his cousin, who was allegedly going to Palwal, was also disputed by
him.
Apart
from examining six witnesses in support of their defence the accused persons
exhibited 77 documents.
From
the judgment of the trial Judge which runsthrough 170 pages, we find that he
detailed and discussed the entire evidence adduced by the parties keeping in
view the cases of the respective parties before answering the question whether
all or any of the circumstances enumerated above stood established. According
to the trial Judge, while the prosecution failed to prove circumstances under
item nos. (vi),(vii),(xv),(xvi),(xvii),(xviii) and (xix), it succeeded in
conclusively proving all the other circumstances. From the circumstances so
proved the trial Judge conclude that the murder of Rama had definitely been
committed in the house of Bal Kishan Dass and subsequently her dead body had
been disposed of in the manner alleged by the prosecution.
With
the above conclusion the trial Judge proceeded to consider the alleged
involvement of the four accused persons in the above offences. In dealing first
with Bal Kishan Dass, the trial Judge observed that consequent upon the failure
of the prosecution to prove the motive as also any conspiracy behind the
commission if the above offences, there were only two incriminating
circumstances which stood proved against Bal Kishan Dass: namely, that he
lodged a false report (Ex.P.31) and later on produced a fabricated ransom
letter (Dx.P.59) before the police. According to the trial Judge, it was not
unlikely that being the head of the family he thought it necessary to save its honour
and reputation which was likely to be affected by the murder of Rama and
probably it was only with that object in view that he made the report and
produced the ransom letter before the police. That apart, the learned Judge
observed, the report (Ex.P.31) was written by Mahesh Narain and not Bal Kishan Dass.
Accordingly, the learned Judge felt that Bal kishan Dass was entitled to the
benefit of doubt. so far as Suresh Narain was concerned the trail Judge held
that since the prosecution signally failed to prove the offence of criminal
conspiracy and since he was admittedly not present in Saharanpur at the
material time he was entitled to acquittal. As regards Ashok Kumar the Sessions
Judge held that the charge under Section 201 IPC stood conclusively proved
against him as the prosecution was able to establish beyond all reasonable
doubts that he actively helped Mahesh Narain in causing the dead body of Rama,
which was the evidence of the commission of her murder, to disappear with the
intention of screening her murderer from legal punishment. Lastly, he dealt
with the role of Mahesh Narain and held that both the charges under Section 302
and 201 IPC stood fully established against him as he had the best opportunity
to commit the murder which took place in their house and he was instrumental in
removing her dead body as also in giving false report to the police and
fabricating the ransom letter. With the police and fabricating the ransom
letter. With the above findings, the trial Judge convicted and sentenced Mahesh
Narain under Sections 302 and 201 IPC and Ashok Kumar under Section 201 IPC,
while acquitting the other two accused.
Against
their conviction and sentence Mahesh Narain and Ashok kumar filed two separate
appeals in the High Court; and the state, in its turn, filed an appeal against
the acquittal of Bal Kishan Dass and Suresh. The High Court concurred with all
the findings of the trial Judge regarding the incriminating circumstances
alleged against the accused except so far as it related to the recovery of
gunny bags similar to the gunny bag in which the dead body of Rama was found
from the house of Bal Kishan Dass. The High Court also concurred with the view
expressed by the trial Judge as regards the alleged complicity of the accused
persons in the offences committed. Rssultantly the High Court dismissed all the
three appeals. The above judgment of the High court is under challenge in these
three appeals, two of which have been filed by Ashok Kumar (Criminal Appeal
No.82 of 1988) and Mahesh Narain (Criminal Appeal No. 221 of 1988) and the
other (Criminal appeal No.120/88) by the State of U.P. dismissing their appeal
against the acquittal of Bal Kishan Dass and Suresh.
We
have heard the earned counsel appearing for the parties at length and carefully
perused the voluminous evidence, oral and documentary, adduced during trial.
From the record we find that in the learned Courts below the defence did not
challenge the prosecution case so far as it sought to prove (a) the Rama was in
her matrimonial home on March 12, 1922; (b that both Bal Kishan Dass and Mahesh
Narain were also there on March 12 and 13, 1982; (c) that on March 14, 1982
both of them went to Kotwali Police Station, Saharanpur and lodged the missing
report (Ex.P.31); (d) that on March 16, 1982 they handed over the application
(Ex.P.41) along with the ransom letter (Ex.P.59) to the Additional
Superintendent of Police, Saharanpur; and (e) that on March 17,1982 the dead
body of a woman was found inside a hold-all which was lying on platform No.1 of
New Delhi Railway Station. Mr. Gupta, the learned counsel appearing for the
accused persons in these appeals also did not dispute the findings recorded by
the learned Courts below in that behalf though he refuted the claim of Malti
that she had met Rama on March
12, 1982. Mr. Gupta,
however, strongly assailed their other findings particularly those relating to
the identity of the daceased and the cause of her death, and reiterated the
arguments canvassed on behalf of the accused persons in the Courts below. He
asserted that having regard to the facts that the indictment against the
accused persons pivoted on the identification of the deceased as Rama and that
the prosecution had signally failed to prove such identity, its entire case
must fail. He next contended that even if it was assumed that the prosecution
established the identity still its case would fail as it was unsuccessful in
proving that Rama met with a homicidal death.
While
there cannot be any quarrel with the proposition that on the prosecutions's
failure to prove either of the above facts its entire case would fail, we are
unable to accept the contention of Mr. Gupta that those facts have not been
established in the instant case. As noticed earlier the prosecution sought to
establish the identity of the deceased by the identification of the clothes and
glass bangles found on her person and also the photographs taken of the dead
body. from the evidence of Shri Yadav (P.W.38) and the inquest report he
prepared (Ex.P.162 and 162A) it is found that the deceased had on her person a
red printed sari, woolen sweater and a number of red coloured glass bangles.
Smt. Malti
(P.W.30) had identified the above articles as belonging to Rama and further
stated that the glass bangles had been given to Rama by her on the occasion of
the 'Holi' when she had visited her. She also testified, on being shown the
enlarged photographs of the deceased, that those were of her sister. Both the
trial Court and the High Court discussed the evidence of Malti in this regard
and found the same trustworthy. This apart, the Courts below noticed thatthe
description of wearing apparels of Rama as given by Bal Kishan Dass in the
missing report (Ext. P.31) tallied with the description of the articles found
on the person of the deceased. From the judgments we further find that all the
comments that were made on behalf of the defence against acceptance of the
evidence of identification have been aduquately dealt with and rejection.
Having gone through the evidence of Malti we do not see any reason whatsoever
to disturb the above concurrent findings. So far as the cause of death of Rama
is concerned the Courts below have also given detailed reasons for accepting
the opinion of Dr. Ramani (PW 17) in preference to that of Dr. Jangid (D.W.4),
who opined that the death was not due to strangulation. One of the reasons so
given is that Dr. Jangid had expressed its opinion solely on the basis of the
report submitted by Dr. Ramani after holding the autopsy and that he had no
occasion or opportunity to see and examine the dead body itself; and in
fortification thereof the Courts relied upon the following passage from the
judgment of this Court in Piara "Apart from this in the instant case it
appears that Dr. Jitendra Singh had the - initial advantage of examining the
deceased and holding his post mortem and observing the nature of the injuries
on the body of the deceased. His opinion is, therefore, based on first hand
knowledge and would be in any event preferable to Doctor Paramjeet Singh who
did not have the advantage of seeing the deceased or the injuries on his body
but deposed purely on the basis of the description of the injuries given by Dr.
Jitendra Singh. For all these reasons, therefore, we would prefer the evidence
of Dr. Jitendra Singh to the evidence of Dr. Paramjeet Singh." In the
instant case the prosecution was required to prove, after having succeeded in
establishing the identity of thedeceased as Rama that she met with a homicidal
death in her matrimonial home. If, therefore, from the circumstances appearing
on record the prosecution has been able to conclusively prove that fact, the
manner how her such death was brought about would not be of any moment.
Judged
in that perspective, in our considered view, the findings recorded by the
learned Courts below in respect of the cirumstances under item Nos. (iv) and
(v) detailed earlier clinch the issue in favour of the prosecution, sans the
testimony of Dr. Ramani. To prove the above circumstances the prosecution
examined Ishab Singh (P.W. 8) a rickshaw puller, who testified that his
rickshaw was hired by accused Mahesh Narain in the night of March 13, 1982 and
in that rickshaw he carried a holdall from their house to Saharanpur Railway
Station. Both the Courts have found his evidence trustworthy and after careful
perusal of his evidence we also do not see any reason to differ with the
finding so recorded. Incidertally it may be mentioned that the trial Judge has
observed that he (P.W.8) had impressed him (the Judge) very much by his
straight forward and unhesitant answers to the questions put to him in
examination-in-chief and cross examination. When his evidence is read in the
context of the fact that a few days Later (on 17th March) dead body of Rama was
recovered from inside a similar hold-all (irrespective of the question whether
its identity stood established or not) the only reasonable conclusion that can
be drawn therefrom is that she met with her death in the house of her in-laws.
As it is nobody's case that such death was accidental or suicidal - indeed, it
was not even suggested by the defence that it was so - the only corollary that
follows from the proof of the above two circumstances and the manner in which
her dead body was recovered is that her death was homicidal.
Now
that we have found that Rama was killed in the house of Bal Kishan Dass and her
dead body was removed therefrom we have to ascertain the role of the accused
persons, if any, in these crimes. As stated earlier except Ashok Kumar, the
other accused were of the same household.
Since,
admittedly, Suresh Narain was not in Saharanpur on March 12 and 13, 1932 and
the charge of conspiracy has failed his acquittal has got to be upheld.
That
brings us to the case of the other two members of the household, namely, Mahesh
Narain and Bal Kishan Dass. In distinguishing the case of Bal Kishan Dass from
that of Mahesh Narain, the learned Courts below observed that though both of
them were party to the fitting of false reports and a fabricated ransom letter
with the police to mislead them, the former did so only to save honour and
reputation of the family. Besides, the Courts noticed that the missing report
(Ext. P.31) was written by Mahesh Narain and the ransom letter was procured/prepared
by him. Having given our anxious consideration to this aspect of the matter we
are unable to hold that their cases are distinguishable; and in our opinion
they stand on the game footing for they acted in unison.
It is
not in dispute that Bal Kishan Dass and Mahesh Narain were in their house in
the fateful nights. It is also not in dispute that the missing report (Ext.
P.31), though prepared by Mahesh Narain, was signed by Bal Kishan Dass and he
handed over it to the police on March 14, 1982.
Undisputedly
again, the application (Ext.P.41) was typed by Anil Kumar (P.W.13) at the
instance of Bal Kighan Dass and was signed and handed over to the police by him
on March 16, 1982. since it stands established that before the missing report
was lodged with the police, Rama had met with her death in his house, it
necessarily means that both the reports that were lodged with the police (Ext.
P.31 and P.41) were false and prepared to mislead the police. Now to ascertain
whether the ransom letter (Ext. P.59) that was annexed to the second report
(Ext. P.41) was also fabricated at the instance of Bal Kishan Dass it will be
appropriate to first refer to the same. The transliterated version of the
letter, which is in Hindi and was addressed to Bal Kishan Dass reads as under:
"Mohaday,
Aap ke ladke ki dharam patnismt. Rama hamara pass surakshit hai, jise hamne
13.3.82 ki ratri me prapt kiya hai. Aap use prapt karne ke liye do lakh rupees lekar
18.3.82 tak Dahradun Chowk par Bharat Steel se hamara pata malum karke prapt kar
le, anthya usko maut ka ghat utar diya jayega. Iski suchna kisi bhi police eityadi
ko dene ki avaskta nahi hai, yadi police ko suchit kiya to hum use jan se turant
mar denge. 18.3.82 ko samay ratri 7 baje.
Aapka
Ahmed Hussain through Bharat Steel, Dehradum Chowk, Saharanpur" In
commenting upon the above quoted letter the High Court noticed that in the
first line of the original the words 'Smt. Rama' has been written above the
line and a mark has been made between the words Dharampatani ' and 'Hamare' and
then 'Smt. Rama' has been inserted which indicated that the writer was
particular about writing the name of Rama even though it was not typed in the
main line. The High Court went on to say that the letter used very respectable
words and Rama has been referred to as 'dharampatni' of his son and 'Smt.' has
been prefixed to her name. Bal Kishan Dass has been addresed as 'aap' and in
the end also the writer has written 'aapka'. According to the High Court a
kidnapper would not use such respectable words nor make a polite request to pay
ransom. Then again, the High Court observed, while demanding ransom the
kidnapper would not write the time when the person was kidnapped but would fix
the time and place where the ransom money is to be paid.
The
High Court also noticed that in that letter the time for payment has been added
in the end which appeared to it to be an after thought. The High Court noticed
that in the letter emphasis is not on the payment of money or the time for its
payment but on the date and time when Rama was kidnapped and who Rama was. The
High Court observed that a letter claiming ransom would have been short and to
the point rather than containing irrelevant details. It is on the basis of the
contents of the letter and the evidence of Anil Kumar (P.W.13) who testified
that apart from getting the application (Ex.P.41) typed by him Ashok Kumar and
Mahesh Narain had borrowed his type machine for getting some confidential
papers typed, the High Court agreed with the finding of the trial Judge that
the ransom letter was prepared by Mahesh Narain for misguiding the police. On
going through the ransom letter and the evidence of Anil Kumar we are in
complete agreement with the Courts below that the ransom letter was a
fabricated letter and false reports were lodged with the police to misguide
them but we are unable to hold that only Mahesh Narain was party thereto.
The
reason letter was an annexure to the report /application (Ext.P.41) that Bal Kishan
Dass signed and presented before the Addl. Superintendent of police. In his
examination under Section 313 Cr.P.C. when the trial Court brought to his
notice that it had come in the evidence that on March 16,1982 he got Ex.P.41
type written by Anil Kumar he admitted that he had done so. Unfortunately,
however, while dealing with the case of Bal Kishan Dass the learned Courts
below did not at all take into considertation the application (Ext.P.41) and
proceeded only on the basis that the earlier report Ex.P.31 was written by
Mahesh Narain and he was only responsible in procuring the false ransom letter
When the ransom letter so prepared/procured was posted with him (Bal Kishan Dass)
as the addressee, and after receipt of the same when it was annexed to a
document which he himself signed after getting it typed it must be said Bal Kishan
Dass was also a party thereto. For the self-same reason Bal Kishan Dass would
be also culpable for filing the earlier missing report with the police. When
these facts and circumstances are considered in juxta-position with presence of
Bal Kishan Dass in the house when the murder took place the only inference that
can be drawn is that he was a party to murder of Rama and removal of her dead
body.
As
regards accused Ashok Kumar, his conviction under Section 201 IPS has got to be
upheld in view of the unimpeachable evidence of Ishab Singh (P.W.8) and other
evidence discussed earlier, which indubitably proves that being fully aware
that Rama had been murdered he actively associated himself in removal of her
dead body, obviously to screen the offenders.
On the
conclusions as above we uphold the conviction of Ashok Kumar under Section 201
IPC but considering the facts and circumstances of the case and particularly
the fact that since the offence was committed more than fourteen years have
elapsed we reduce the substantive sentence of rigorous imprisonment of five
years imposed upon him for the above conviction to rigorous imprisonment for
two years. Subject to the above modification regarding sentence his appeal
(being Crl. Appeal No. 82 of 1988) is dismissed. Crl. Appeal No. 221 of 1986)
preferred by Mahesh Narain, is also dismissed with only this modification that
his conviction under Section 302 IPC (simiplciter) will stand altered to one
under Section 302/24 IPC but the sentences imposed upon him shall stand
confirmed. Crl. Appeal No. 120 of 1988 filed by the State of U.P. is partly
allowed in that, the appeal so far as it relates to the acquittal of Suresh
Narain is dismissed but in respect of Bal Kishan Dass the same is allowed. The
convicted of the Offences under Sections 302/24 and 201/34 IPC. For his
conviction under Section 302/34 IPC he is sentenced to suffer imprisonment for
life but no separate sentence is passed for the other conviction. Suresh Narain,
who is on bail is discharged from his bail bonds. The other three accused
persons, namely Bal Kishan Dass, Mahesh Narain and Ashok Kumar , who are on
bail, will now surender to their bail bonds to serve out the sentences.
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