REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s).1070 OF 2017

SANJAY RAJAK ...APPELLANT(S)

VERSUS

THE STATE OF BIHAR     ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellant assails his sentence and conviction under

Section 364(A) I.P.C to rigorous imprisonment for life with a default

stipulation.   Co­accused Balram convicted by the Trial Court has

been acquitted by 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 5­6 years.  According to the allegations, he is

said to  have  been  kidnapped  from  the school  on  12.04.2007 at

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about 12:15 pm. by the co­accused Balram.  The appellant and the

co­accused 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.

3. Learned counsel for the appellant submitted that according to

PW­10, the classmate of the deceased, co­accused  Balram had

kidnapped him from the school.   PW­11 and PW­12, the parents of

the  victim had  further  deposed that  ransom calls  were made by

Balram.   Acquittal of the co­accused makes the conviction of the

appellant  unsustainable.  Reliance on PWs. 5,  8 and 9  that the

victim was last seen with the appellant is based on a preponderance

of probabilities only.  PW­5 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 failure to take any step for

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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.    

4. Learned counsel for the State submitted that the acquittal of

co­accused 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

and carefully perused the materials on record.  PW­10, 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

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shoulder, fed him ice­cream and took the victim away.  PW­11 and

PW­12 Manoj Kumar, the 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 co­accused, the child  naturally  went

along without any qualms in this background.   

6.  PW­11 and PW­12 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 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

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Court without considering the aforesaid factors, unfortunately

granted acquittal opining that no recorded voice sample was

available.  

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 5­6 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 Balram has been acquitted by the High Court on the

reasoning that his identity as the abductor could not be established

as  PW­10 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.   The mere

acquittal of a co­accused in the facts and circumstances of the case

can be of no benefit to the appellant.  

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8. PW­8 deposed that the appellant had come to his hotel with a

child aged 5­6 years and requested for food to be served.  Likewise,

PW­9 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 PW­6 and PW­7. 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 PW­12, the father of the victim.   The appellant

offered  no  explanation  about the  aforesaid recoveries, except for

denying the same.   

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

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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 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

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 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 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

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the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal  death of the victim must be adduced by the  prosecution.  Such  proof  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 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 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 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 essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact.  Corpus delicti  in

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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 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, 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…”

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 confession of a co­accused. 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

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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 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.  

.……………………….J.         (Ashok Bhushan)     

………………………..J.    (Navin Sinha)           

New Delhi, July 22, 2019.

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