Mundra Vs. State of Rajasthan & Anr  INSC 47 (3 February 1998)
Nanavati, B.N. Khare Nanavati, J.
APPEAL NOS. 679-80 OF 1990
four appeals arise out of the same judgment of the Rajasthan High Court in D.B.Criminal
Reference No. 1/89 and D.B.Criminal Appeal No. 14/89. Criminal Appeal Nos. 666-
67/90 are filed by the father of deceased Babloo for whose murder the
respondent - Bhagirath and one Gopal were tried.
other appeals are filed by the State. In all these appeals, the acquittal of Bhagirath
for the offence punishable under Section 302 IPC is called in question.
charge against Bhagirath was that as he was removed form service by Prem Prakash
Mundra, he bore a grudge against Prem Prakash and by way of revenge, he
kidnapped his son Babloo on 2.9.1986 at about 6.00p.m. and subsequently killed him and buried the dead body near
the Rudreshwar Mahadev temple on the river bank. It was also alleged that he
committed those acts along with co-accused Gopal. The prosecution examined some
witnesses to prove that they had seen Bhagirath taking Babloo on a cycle. There
was no direct evidence to prove the murder.
trial court held that the prosecution has satisfactorily established that Bhagirath
had a motive to kidnap and kill Babloo and that the circumstances, namely, that
he was last seen in the company of Babloo and that he had pointed out the place
where the dead body of Babloo was buried were not only sufficient for
convicting him under Section 364 IPC but also for his conviction under Section
302 IPC. It then awarded sentence of death. The trial court, however, held that
the evidence against co-accused Gopal was not sufficient to establish his
participation either in kidnapping or in the murder of Babloo. It, therefore,
death sentence was awarded to Bhagirath, a reference was made by the trial
court to the High Court for confirmation of theat sentence. Bhagirath also
challenged his conviction under Section 364 IPC by filling an appeal.
High Court disposed of both the cases by a common judgment. The High Court
agreed with the finding that Bhagirath had a motive to commit the offence and
that the circumstance that Bhagirath had pointed out the place where the dead
body of Babloo was buried was not an incriminating circumstance against him as
he had not stated that he had buried the dead body. The High Court, therefore,
held that the trial court had committed an error in relying upon this
circumstance and convicting him for the offence punishable under Section 302
IPC. Taking this view the High Court acquitted Bhagirath of the offence
punishable under Section 302 IPC. His conviction under Section 364 was altered
to one under Section 365. The accused had not challenged his conviction under
Section 365 and we are told that he has already serve out six years
imprisonment for that offence.
contended by the learned counsel appearing for the appellant - Prem Prakash and
by the learned counsel for the State that the High Court committed an error in
not placing reliance upon the circumstance that the accused had buried the dead
body and that it was recovered at his instance. They submitted that the
Investigating officer has categorically stated in his evidence that the accused
had made a statement before him that he had buried the dead body in the river
bank near the Rudreshwar Mahadev temple and there was no good reason to
disbelieve him. It was also submitted that even otherwise that the fact that it
was recovered at his instance ought to have been regarded as an incriminating
circumstance and that circumstance along with the other circumstances ought to
have been held sufficient for upholding the conviction under Section 302 IPC.
finding that he accused had a motive to commit the offence is well supported by
the evidence on record. The evidence of PW-14 Kavita, PW-15 -Gopal Bhandari,
PW-19 - Bherulal, PW-20 - Ramesh Chandra and PW- 1- Rooplal has also
established beyond doubt that the accused had taken away Babloo on a cycle,
from the place where he was playing just by the side of his house to the room
in which the accused was staying. The evidence of these witnesses further
establishes that Babloo was with him till about 8.00 P.M. It was contended by the learned counsel for the appellants
that these circumstances, together with absence of any explanation by the
accused as to when he left Babloo, were sufficient for convicting accused Bhagirath
under Section 302 IPC. I was also contended that the High Court was not
justified in not placing any reliance upon the circumstance that Bhagirath had
pointed out the place where Babloo's dead body was buried.
have read the statement as recorded by the Investigating officer and also its
translation. Accused has not stated therein that he had buried the dead body.
The Investigating officer was, therefore, not right when he deposed that the
accused had stated to him that he had buried the dead body of Babloo. The
statement was not made in presence of any independent witness. The explanation
of the accuse was that he had come to know about that place from the talk among
Hemant, Pravin, Rajesh and Sushil who were with him in the lock-up. He also
stated that he had not voluntarily taken the police to hat place but he was
forcibly taken there. The Investigating officer has admitted that he had
recorded statement of Rages. Therefore, it becomes doubtful that the dead body
was really recovered as a result of information given by the accused. The High
Court was, therefore, right in holding that only conclusion that could be drawn
from the statement of the accused was that he knew that place where the dead
body was buried and as he had not stated that he had buried it, he could not be
connected with the offence on the basis of that circumstance.
other two circumstances were rightly regarded as not sufficient for convicting
the accused under Section 302 IPC. The material on record discloses that
probably co- accused Gopal was also with him till 8.00P.M. Though PW-1 denied in his evidence that he had seen Gopal
also in his evidence that he had seen Gopal also in the room of Bhagirath when
he had gone there on hearing a chile crying in that room, it has been brought
out in his cross- examination that he had stated like that to the police. That
creates a doubt regarding the circumstance that Babloo was last seen in the
company of Bhagirath alone at about 8.00 P.M. on 2.9.1986. The dead body was found on the next day in the afternoon. For
all these reasons, the view taken by the High Court cannot be regarded as
these appeals are, therefore, dismissed.