SANJAY RAJAKversusTHE STATE OF BIHAR

654                       [2019]
               SUPREME COURT     9 S.C.R. 654
                              REPORTS                      [2019] 9 S.C.R.


A                              SANJAY RAJAK
                                       v.
                           THE STATE OF BIHAR
                       (Criminal Appeal No.1070 of 2017)
B                                JULY 22, 2019
              [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
             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
C
      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
D     – 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
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      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
F     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
G
      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.

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                                      654
           SANJAY RAJAK v. THE STATE OF BIHAR                           655


       Evidence: Identification of a person – Every individual has a    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
                                                                        B
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       C
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     D
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         E
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         F
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]                                                                G
      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
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656            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


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
B
      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
C     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
D     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.
E     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
F     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
G     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]
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           SANJAY RAJAK v. THE STATE OF BIHAR                           657


       4. It is not an invariable rule of criminal jurisprudence that   A
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
                                                                        B
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]                   C
      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               D
      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.
                                                                        E
                       Case Law Reference
(2008) 3 SCC 210               distinguished           Para 3
(2009) 17 SCC 106              referred to             Para 3
[2015] 6 SCR 239               referred to             Para 3
                                                                        F
[1981] 2 SCR 444               relied on               Para 9
[1991] 2 SCR 711               relied on               Para 10
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1070 of 2017.
                                                                        G
      From the Judgment and Order dated 14.07.2015 of the High Court
of Judicature at Patna (Bihar) in Crl. Appeal (D.B.) No. 813 of 2009.
      Prabhash Kr. Yadav, Mansoor Ali, Advs. for the Appellant.
       Saket Singh, Ms. Sangeeta Singh, Mrs. Niranjana Singh, Advs.
for the Respondent.                                                     H
658            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A           The Judgment of the Court was delivered by
            NAVIN SINHA, J.
            1. The appellant assails his sentence and conviction under Section
      364(A) I.P.C to rigorous imprisonment for life with a default stipulation.
      Co-accused Balram convicted by the Trial Court has been acquitted by
B     the High Court. Consequently, the appellant has been acquitted of the
      charge under Section 120B I.P.C.
             2. The victim, according to the prosecution case was a school
      going child aged about 5-6 years. According to the allegations, he is said
      to have been kidnapped from the school on 12.04.2007 at about 12:15
C     pm. by the co-accused Balram. The appellant and the co-accused were
      last seen together along with the victim. In their confessional statement
      both the accused disclosed that after kidnapping the child they had killed
      him and buried the corpse in the bed of river Saryu at Chhapra. The
      police did not make any effort to recover the body. The belongings of
      the deceased victim were recovered from the house of the appellant.
D
             3. Learned counsel for the appellant submitted that according to
      PW-10, the classmate of the deceased, co-accused Balram had kidnapped
      him from the school. PW-11 and PW-12, the parents of the victim had
      further deposed that ransom calls were made by Balram. Acquittal of
      the co-accused makes the conviction of the appellant unsustainable.
E
      Reliance on PWs. 5, 8 and 9 that the victim was last seen with the
      appellant is based on a preponderance of probabilities only. PW-5 had
      deposed having seen the appellant along with Balram and the victim.
      The prosecution case against the appellant is based on circumstantial
      evidence with the link in the chain of events being incomplete. The
F     failure to take any step for recovery of the dead body leaves it open to
      doubt whether any such incident of kidnapping had occurred or not.
      Reliance in support of the submissions was placed on Sattatiya alias
      Satish Rajanna Kartalla vs. State of Maharashtra, (2008) 3 SCC
      210, Lohit Kaushal vs. State of Haryana, (2009) 17 SCC 106 and
      Iqbal and another vs. State of Uttar Pradesh, (2015) 6 SCC 623.
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            4. Learned counsel for the State submitted that the acquittal of
      co-accused Balram is irrelevant in the nature of the evidence available
      against the appellant. His conviction therefore calls for no interference.
            5. We have considered the submissions on behalf of the parties
H     and carefully perused the materials on record. PW-10, aged about 8
            SANJAY RAJAK v. THE STATE OF BIHAR                                 659
                     [NAVIN SINHA, J.]

years and a classmate of the victim deposed that while both of them            A
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 Manoj Kumar, the
                                                                               B
parents of the victim have deposed that the acquitted accused Balram
had worked as a servant in their house earlier. In the aforesaid facts, the
significance of the victim addressing Balram as “Uncle! Uncle!”, cannot
be lost sight of and unfortunately did not fall for consideration by the
High Court at all. Being acquainted with the co-accused, the child naturally
went along without any qualms in this background.                              C
       6. PW-11 and PW-12 deposed that Balram had made calls on
mobile demanding ransom. Balram having worked earlier in the house
of the witness, we find 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         D
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 the aforesaid factors, unfortunately
granted acquittal opining that no recorded voice sample was available.         E

       7. PW 5, the liquor shop owner deposed that on the day of
occurrence itself the appellant and Balram had come to his shop to
purchase liquor. The appellant introduced Balram 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        F
for about two hours and then left along with the child. Nonetheless Balram
has been 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 has not chosen to challenge the acquittal.       G
The mere acquittal of a co-accused in the facts and circumstances of
the case can be of no benefit to the appellant.
      8. 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       H
660            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A     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
B
      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 aforesaid recoveries, except for denying
      the same.
C            9. 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
D     on reasonability and probability based on normal human prudence and
      behavior. In the facts and circumstances of the present 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. Rama Nand and others vs. State of
E     Himachal Pradesh, (1981) 1 SCC 511, was a case of circumstantial
      evidence where the corpus delicti was not found. This court upholding
      the conviction observed:
             “28…..But in those times when execution was the only punishment
             for murder, the need for adhering to this cautionary rule was
F            greater. Discovery of the dead body of the victim bearing physical
             evidence of violence, has never been considered as the only mode
             of proving the corpus delicti in murder. Indeed, very many cases
             are of such a nature where the discovery of the dead body is
             impossible. A blind adherence to this old “body” doctrine would
             open the door wide open for many a heinous murderer to escape
G
             with impunity simply because they were cunning and clever enough
             to destroy the body of their victim. In the context of our law, Sir
             Hale’s enunciation has to be interpreted no more than emphasising
             that where the dead body of the victim in a murder case is not
             found, other cogent and satisfactory proof of the homicidal death
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          SANJAY RAJAK v. THE STATE OF BIHAR                                  661
                   [NAVIN SINHA, J.]

     of the victim must be adduced by the prosecution. Such proof             A
     may be by the direct ocular account of an eyewitness, or by
     circumstantial evidence, or by both. But where the fact of corpus
     delicti i.e. “homicidal death” is sought to be established by
     circumstantial evidence alone, the circumstances must be of a
     clinching and definitive character unerringly leading to the inference
                                                                              B
     that the victim concerned has met a homicidal death. Even so,
     this principle of caution cannot be pushed too far as requiring
     absolute proof. Perfect proof is seldom to be had in this imperfect
     world, and absolute certainty is a myth. That is why under Section
     3 of the Evidence Act, a fact is said to be “proved”, if the court
     considering the matters before it, considers its existence so probable   C
     that a prudent man ought, under the circumstances of the particular
     case, to act upon the supposition that it exists. The corpus delicti
     or the fact of homicidal death, therefore, can be proved by telling
     and inculpating circumstances which definitely lead to the
     conclusion that within all human probability, the victim has been
                                                                              D
     murdered by the accused concerned….”
      10. Sevaka Perumal and another vs. State of Tamil Nadu,
(1991) 3 SCC 471, was also a case where the corpus delicti was not
found yet conviction was upheld observing:
     “5….In a trial for murder it is not an absolute necessity or an          E
     essential ingredient to establish corpus delicti. The fact of death
     of the deceased must be established like any other fact. Corpus
     delicti in some cases may not be possible to be traced or
     recovered. Take for instance that a murder was committed and
     the dead body was thrown into flowing tidal river or stream or
     burnt out. It is unlikely that the dead body may be recovered. If        F
     recovery of the dead body, therefore, is an absolute necessity to
     convict an accused, in many a case the accused would manage to
     see that the dead body is destroyed etc. and would afford a
     complete immunity to the guilty from being punished and would
     escape even when the offence of murder is proved. What,                  G
     therefore, is required to base a conviction for an offence of murder
     is that there should be reliable and acceptable evidence that the
     offence of murder, like any other factum of death was committed
     and it must be proved by direct or circumstantial evidence, although
     the dead body may not be traced…”
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662              SUPREME COURT REPORTS                         [2019] 9 S.C.R.


A            11. Sattatiya (supra) is completely distinguishable on its own facts
      as there was no credible evidence with regard to the last seen theory.
      The recovery of the weapon of the offence was disbelieved as no
      disclosure statement under Section 27 of the Evidence Act was brought
      on record and the recoveries were effected from an open place. Likewise
      in Lohit Kaushal (supra) the appellant was made an accused on
B
      confession of a co-accused. But the vehicle allegedly recovered from
      the appellant was found not to be involved in the kidnapping. There was
      no evidence with regard to the appellant having been involved in the
      kidnapping and taking away of the child. In Iqbal (supra) it was held
      that identification parade was not substantive evidence and apart from
C     the same there was no other incriminating evidence like recovery of
      articles from the appellant.
            12. We therefore find no merit in this appeal. The appeal is
      dismissed.

D
      Devika Gujral                                               Appeal dismissed.




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