RAGHUBIR SINGH Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Additional Sessions Judge dated 13.05.1994 delivered in Sessions Case No. 23/92. The case relates to FIR No. 466/91, registered under Sections 364/387/302/201 read with 34 of the Indian Penal Code (hereinafter referred to as 'IPC') at Police Station Rajouri Garden. Initially, two persons were sent up for trial, including the appellant. The other person was his wife Ram Betti. The trial court came to the conclusion that the prosecution did not establish any case against the accused persons under Sections 364 and 387 read with Section 34 IPC. Consequently, both the accused persons, including the present appellant were acquitted of the said charges. The trial court also came to the conclusion that the prosecution failed to establish the charge against co -accused Ram Betti under Sections 302/201 IPC. Consequently, she was acquitted of these charges also. However, the trial court found the present appellant, Raghubir Singh, to be guilty of having committed the murder of a boy named Suraj and he was convicted under Section 302 IPC as well as Section 201 IPC. Thereafter, by a separate order on the point of sentence, passed on the same day, the trial court sentenced the appellant to undergo rigorous imprisonment for life under Section 302 IPC and to pay a fine of Rs. 3,000/ - and in default thereof to undergo rigorous imprisonment for a period of one year. For the offence under Section 201 IPC, the appellant was also sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/ - and in default thereof to suffer rigorous imprisonment for a period of four months. All the sentences were directed to run concurrently.

(2.) BEING aggrieved by the impugned judgment and order on sentence, the present appeal has been preferred by the appellant. The learned Counsel for the appellant submitted at the outset that though initially charge was also under Section 364/387 IPC, the trial court had acquitted the parties of those charges and the appellant has only been convicted under Sections 302/34/201 IPC. The learned Counsel submitted that this was a case based purely on circumstantial evidence and importantly this was a case where the dead body of the deceased Suraj has not been recovered. He submitted that the four circumstances which were put forth by the prosecution were:

(3.) INSOFAR as the question of extra judicial confession made to PW8 Sohan Lal is concerned, the learned Counsel pointed out that PW8 Sohan Lal turned hostile and consequently his testimony was discarded by the trial court. As regards the motive of extortion, the learned Counsel for the appellant submitted that inasmuch as the appellant as also his co -accused have been acquitted of the charges under Sections 364 and 387 IPC, there is no question of there being any motive behind the alleged kidnapping for the purposes of extortion of money. The learned Counsel submitted that the only circumstance taken into consideration by the trial court for convicting the present appellant was the circumstance of recovery of one pajama and a bali belonging to the deceased Suraj from the house of the appellant at the instance of the appellant. The learned Counsel for the appellant also submitted that the most vital and important aspect of the case is that the dead body of Suraj has not been recovered and there is no circumstance on record which would enable us to infer that Suraj is dead. He submitted that it is not one thing that the body is not discovered and it is quite another thing that the factum of death itself is not established. He submitted that unless and until the factum of death is established either by direct evidence or by circumstantial evidence, no case under Section 302 IPC can be made out. He placed reliance on a recent decision of the Supreme Court in the case of K.T. Palanisamy v. : AIR2008SC1095 , wherein it has been observed in the context of the case before the Supreme Court as under: