Penal Code, 1860: s.364(A) – Conviction and rigourous imprisonment for life – Acquittal of co-accused by High Court – Prosecution case was that the co-accused kidnapped 6 years old child – In confessional statement, both the accused disclosed that after kidnapping the child, they killed him and buried the corpse in the bed of river – Both the accused were last seen together along with the victim – Police made no effort to make recovery of body – Trial court convicted both the accused on circumstantial evidence – High Court affirmed the conviction of appellant while acquitted the co-accused – On appeal, held: The classmate of the victim deposed that while they were standing at the gate of school, a man with his face covered approached the victim and told him that his father was calling him and that the victim recognized him and called him uncle – The evidence of the parents of the victim was to the effect that the co-accused had worked as a servant in their house earlier and being acquainted with co-accused, the child naturally must have gone along with him – They also deposed that a demand for ransom was made on phone by co-accused as they could recognize his voice – Several prosecution witnesses saw the appellant and co-accused with the victim on the day of occurrence – Recovery of victim’s bag was made from the house of the appellant which was identified by the father of the victim – No explanation was offered by the appellant about the said recoveries – In the facts and circumstances of the case, the failure of the police to recover the dead body was not of much consequence in the absence of any explanation by the appellant both with regard to the victim being last seen with him coupled with the recovery from his house of the belongings of the deceased – Therefore, interference with order of conviction not called for.
Evidence: Identification of a person – Every individual has a distinctive style of speaking which makes identification by those acquainted possible – Identification of a known person by voice in darkness has been well recognized in criminal jurisprudence – Even if a person tries to camouflage his voice in one call, given the limitations of human nature there will be a tendency to state certain words or sentences in an inimitable style exposing the identity – In the instant case, High Court without considering these factors, erred in granting acquittal opining that no recorded voice sample was available – Criminal jurisprudence – Penal Code, 1860 – s.364(A).
Evidence: Circumstantial evidence – Corpus delicti not found – It is not an invariable rule of criminal jurisprudence that the failure of the police to recover the corpus delecti will render the prosecution case doubtful entitling the accused to acquittal on benefit of doubt – It is only one of the relevant factors to be considered along with all other attendant facts and circumstances to arrive at a finding based on reasonability and probability based on normal human prudence and behavior – Penal Code, 1860 – s.364(A).
Dismissing the appeal, the Court
HELD : 1. PW-10, aged about 8 years and a classmate of the victim deposed that while both of them were standing at the gate of the school at about 12 o’clock, a man with his face covered with a napkin approached the victim and told him that his father was calling him. The victim addressed him as “uncle uncle”. The man took the school bag of the child on his shoulder, fed him ice-cream and took the victim away. PW-11 and PW-12 the parents of the victim deposed that the acquitted co-accused had worked as a servant in their house earlier. In the said facts, the significance of the victim addressing co-accused as “Uncle! Uncle!”, cannot be lost sight of and unfortunately did not fall for consideration by the High Court at all. [Para 5] [658-H; 659-A-C]
2. PW-11 and PW-12 deposed that co-accused had made calls on mobile demanding ransom. Co-accused having worked earlier in the house of the witness, there is no infirmity in their statement of having recognised his voice. Every individual has a distinctive style of speaking which makes identification by those acquainted possible. Identification of a known person by voice in the darkness has been well recognized in criminal jurisprudence. Even if a person tries to camouflage his voice in one call, given the limitations of human nature there will be a tendency to state certain words or sentences in an inimitable style exposing the identity. The High Court without considering these factors, unfortunately granted acquittal opining that no recorded voice sample was available. [Para 6] [659-C-E]
3. PW 5, the liquor shop owner deposed that on the day of occurrence itself the appellant and co-accused had come to his shop to purchase liquor. The appellant introduced co-accused as his relative. They were accompanied by a boy aged 5-6 years wearing pink shirt, blue pant, blue socks, black belt, red tie. They consumed liquor at his shop for about two hours and then left along with the child. Nonetheless co-accused acquitted by the High Court on the reasoning that his identity as the abductor could not be established as PW-10 stated that the abductor had his face covered with a napkin and therefore the dock identification was doubtful. The prosecution did not choose to challenge the acquittal. The mere acquittal of a co-accused in the facts and circumstances of the case can be of no benefit to the appellant. PW-8 deposed that the appellant had come to his hotel with a child aged 5-6 years and requested for food to be served. Likewise, PW-9 also deposed having seen the appellant with the child. Subsequently in the evening when he saw the photograph of the missing child on the television, he was able to identify the child accompanying the appellant. The witness then went to the police station to give information. The house of the appellant was raided in presence of seizure witnesses PW-6 and PW-7. The black coloured school bag of the victim was recovered from the house of the appellant. The school diary and copies inside the same bore the name of the victim. The school diary also contained his home phone number and the mobile number of his father. The recovered items were identified by PW-12, the father of the victim. The appellant offered no explanation about the said recoveries, except for denying the same. [Paras 7, 8] [659-F-H; 660-A-C]
4. It is not an invariable rule of criminal jurisprudence that the failure of the police to recover the corpus delecti will render the prosecution case doubtful entitling the accused to acquittal on benefit of doubt. It is only one of the relevant factors to be considered along with all other attendant facts and circumstances to arrive at a finding based on reasonability and probability based on normal human prudence and behavior. In the facts and circumstances of the instant case, the failure of the police to recover the dead body is not much of consequence in the absence of any explanation by the appellant both with regard to the victim last being seen with him coupled with the recovery from his house of the belongings of the deceased. [Para 9] [660-C-E]
Rama Nand and others v. State of Himachal Pradesh (1981) 1 SCC 511 : [1981] 2 SCR 444 ; Sevaka
Perumal and another v. State of Tamil Nadu (1991) 3 SCC 471 : [1991] 2 SCR 711 – relied on.
Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra (2008) 3 SCC 210 – distinguished.
Lohit Kaushal v. State of Haryana (2009) 17 SCC
106 ; Iqbal and another v. State of Uttar Pradesh (2015)
6 SCC 623 : [2015] 6 SCR 239 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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