Rajinder Kumar and Another v. the State of Punjab

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 182 of 1961. Appeal by special leave from the judgm~nt and order dated 8eptember 7, 1961, of the PunJab High Court, Chandigarh in Criminal Appeal No. 595 of 1961 and Murder Keference No. 56 of 1961. A. S. R. Chari, Om Prakash' Passey and K. R. Chaudhri, for the appellants. Gopal Singh and P. D. Menon, for the respondent. 1962. May 4. The Judgment of the Court was delivered by DAS GUPTA, J.-Three and a half year old Tonny, son of Ravindernath Goyal was last seen alive on January 5, 1961. A month later on February 5, 1961. his dead body was discovered, buried in the compound of the house of Goya.l's next door neighbour Jagdish Chander and Rajinder Kumar. These two, Jagdish Chander and Rajinder Kumar are father and son. Tonny's body was found in a gunny bag with a blood-stained piece of cloth stuffed in the mouth; a blood-stained towel was also found in the bag.

When the cloth stuffing the mouth w;as removed the tongue was found puebed to the left side backward looking the thro'l.t. The Civil Surgeon, Bhatinda, who held the postmortem examination Ins given his opinion that the death of the child was due to asphyxia resulting from suffocation caused by packing the mouth with the cloth. Rajinder Kumar has been convicted under s. 302 of the Indian Penal Code for the murder of Tonny and sentenced to death. The father Jagdish Chander has been convicted under s. 201 of the lndian Penal Code for having concealed the dead body of Tonny. a s.c.R. The prm1ecution case is that on Januitry 5, 1961, between 3-30 p. m. and 4 p. m. when Tonny was at the house of Jagdish and Rajinder and the other inmates of the house were away Rajinder killed Tonny by stuffing his mouth with a cloth and kept the dead body in the Garage in their house; and that that very night he and his father buried the dead body in the compound after putting it in a gunny bag.

For the entire month after the child was found missing and before his body was discovered frantic efforts had been made by the distracted parents and gmnd-father of Tonny to trace him but in vain. Indeed, according to the prosecution, the two accused made a show of taking part in the search for the boy. The details of the prosecution story are best told by enumerating the circumstances on'which the prosecution relied to prove its case that Rajinder killed Tonny. (1) A few days before January 5,. 1961 relations between Rajinder Kumar on the one hand and Tonny's father Ravinder K•1mar on the other had become strained because .Kajinder had talked to 'l'onny's mother in a way which her husband did not like and Ravinder ai;ked Hajinder to stop his visits to their house.

After this Tonny who used to be a frequent visitor to Rajinder, whom he called "uncle" also stopped his visits for. some days; but then three or four days before January 5, he resumed his visits to Rajinder as Hajinder had been giving him sugar drops. (2) Tonny was· last seen alive at about iJ-30. p. m. in Rajinder's hou1<e playing with Rajinder. (3) At that time Rajinder's wife, his father, his sister and his servant Bhagat Ram were away from the house, Bhagat Ram having been actually sent out })y Rajinder at about 2-:>0 p. m. (4) At ttbout 4 p. m· Tonny's mother Sudha called out ~o Tonny after preparing the tea RaJinder Kumar Stale of Punjab Das Gupta J, ltajinder Kumar Stale of Punjab DasG11pta J, hut 'not getting any response asked Rajind<'r Kumar, whom she saw coming from the direction of the Garage as to where Tonny was. (5) Rajinder Kumar said that Tonny had gone with his wife to the house of Jagdish Goyal.

Rajinder's wife came back to the house just at that time and in reply to Sudha said that Tonny had not gone with her but had been playing about with her husband. Sudha then enquired again from R1tjinder about 'l'onny and he said Tonny might have izone to the shop of Baba to fetch a toast. (6) At the same time Bhagat Ram returned with his cycla and wanted to keep it into the Garage but finding that Rajinder had lo~ked the Garage he asked him to open the lock but Rajinder asked him to put the cycle in the house saying that he had put some important articles in the Garage and so would not open the Jock. (7) That niglit Bhagat Ram slept in th"l kitchen and Rajinder Kumar who had gone out of the house after 4 {)' clock pretending to take part in the search for Tonny returned home at 12 midnight and put on the light in the kitchen where Bhagat Ram had laid himself down and asked him why he had not gone to sleep. (8)

At about 2 O' clock when Bhagat Ram came out to answer a call of nature he saw Rajinder and hie father in front of the Garage talking to each other but they ·kf'pt quiet when he drew near. (I!) B.ajinder remained outside the house for a.bout another two hours·during which Bhagat Ram was a.wake. (10) Un January 9, Rajinder met Raj Kumar a teacher in a primary school on the bridge in Mohalla Jori Bhatia and asked for his assistance in removing the dead body of the child after confessing to him tb:at he had murdered him. ( 11) Rajinder was interro~ated by the polioe on the 3rd and 4th February, and ultimately on the 5th February when he was taken by the policA to his own house he made a statement that he had buried the dead. body of the child at a distance of 6 to 7 ft. from the mstin 3 S.C.R. gate towards the right, wrapped in a gunny bag olose to the Gui Mohar tree. (12)

Then Rajinder Kumar pointed out a place, dug there about 4 ft. deep and Tonny's body was found there in a gunny bag with his own garments on and with a banian thrust in his mouth. (13) There was also a towel which has been identified by Bha~at Ram as belonging to the accused Rajinder Kumar, inside the bag. ( 14) Human blood was detected on the ·hanian towel and the bag as also on the garments on the body of the child. Both the accused pleaded not guilty and urged that they had been implicated falsAly on unjustified suspicion. The Trial Court as also the High Court found all the 14 circumstances mentioned above fullv established by evidence. Mr. Chari, who appeared before us, on behalf of both the appellants, does not contest that if these circumstances have bAen proved they follv justi(v the conclusion reached by the courts below. H~, however, tried to persuade us that the High Courl; was wrong in finding some of the circumstances, at least, · to have been proved.

It appears to us that if no other circumstances than th~ second, fifth and twelfth circumstances mentioned above have been proved they are by themselves sufficient, without anything more, to justify the conolu.sion that Rejinder Kumar · murdered Tonny. If Tonny was last seen with him at 3. 30 p. m. on the 5th and the dead body is discovered in his own house buried under the earth and this fact is known to him and it is further found that about 4 p. m. on the 5th he marie contradictory statements as to where Tonny had gone, these three circumstances are incapable of expla.nation on any other reasonable hypothesis than that he killed the boy between 3.3(} and 4 p.m. Rajinder Kumar State of Punji6 Das Gupta J. Rojinder Kumar State of Punjab Dai GuptaJ. on that . day and some time later buried the body. Mr. Chari suggested that it might be thr t Tonny was killed somewhere else by some unknown person and then that killer found some opportunity of bringing the· dead body into the appellant'.; house and buried it there.

This appears to us as an absurd suggestion, hardly worth serious consideration. If somebody else killed Tonny t:lsewhere, wha.t could be the reason for his taking the trouble of carrying the body to the appellant's house and burying it there at the risk of being surpri~ed by ,somebody before he had finished the job ? Apart from that the fact remains, as proved beyond shadow of doubt, that the place where the body had been buried was known to Rajinder and it was R1tjinder himself who dug the ground at the right place for the recovery of the body. Mr. Chari drew our attention to the statement of prosecution witness No. 5 Mrs. Gurdeep Kaur Girin that .the police came to the house of the accused two days before the recovery of the child's deadbody and that some pits were dug by the police on that day and that Rajinder was with them. All the police officers have denied that any digging was done before the 5th. It seems to UB clear that Mrs. Gurdeep Kaur while giving evidence in June 1961 has made a mistake about the date on which she saw the digging being done.

But even assuming that what she says was correct it would not show that Rajinder did not know the place where the body bad been kept; it would merely show that even then be was keeping quiet about it. Some comment has beep made by the learned Counsel on the . failure of the police to discover by themselves during their numerous visits to the · appellant's house that the ground was disturbed. We find nothing surprising in this. Few people not even the police officers who bad som'e suspicion against the a<'cused from the very commencement of the investigation would e:xi:ect the accusEd 3 S.C.R. to be so daring as to bury the dead body in the compound of his own house. The fact that any disturbed condition of the ground was not discovered by the police before the 5th February can be therefore no ground for thinking, as the learned Counsel suggestB, that the bndy had been brought there from somewhere else shortly before the 5th.

While we think the few circumstances mentioned above are by themselvPs sufficient to justify the conviction of Rajinder Kumar under s. 302 of the Indian Penal Cl)de, we think it proper to add that nothing has been shown to us that would justify us in interfering with the conclusion of the courts below that the 6th, 7th, 8th and the 9th circumstances mentioned above have also been proved. Mr. Chari wanted us to believe ·that Bhagat Ham was taken into policA custody on the 31st January and it is strange that his statement was not recorded by the policfl before the 5th February. The High Court bas believed the evi· dence of the Inspector of Police, Ram Nath Paras, that Bhagat Ram was not available at Patiala for recording of his statement till the 7th February, 1 \:J6 l and we cannot see anything that calls for our reappraisal of the evidence on this question. The criticism levelled by Mr. Chari i:tgainst the evidence of prosecution witnesses· Raj Kumar and Mahabir Da.yal for provincr the 10th circumstance mentioned above about Rajinder's extra-judicial confession is more plausible.

These two wit11esses are on their own Fbowing persons of sharly character and they would not, be above giving falsfl evirlence to ohlige the police, if the police wanted it. But, it is difficult to see why the police should think it necPS· sary to secure the senrice>1 of these persons for giving false evidP.nOfl when the practicallv conclusive evidence afforded by the disoovery of the deail. body in the appellan-b's compound was already Rajinder Ku'llar St•te of Puojab Da• Gupta .J. Rajinder Kumar Stat, of !'unjab DuGuptc J. there. The fitory of the extra-judicial c:mfession of Rajinder Kumar, as given by Raj Kumar and supported by Mahabir Dayal is therefore likely to be true. But it is really unnecessary for the purpose of tbe present case to examine the question further. For, any support from this 10th circum.' stance regarding the extra-judicial confession is not needed by the prosecution. What moved Rajinder Kumar to commit this daetardly deed is not clear.

Tbe strained ralations between 1'onny's fathn Havinder on the one hand a.nd Raj ind er on the. other because the former had asked Rajinder to stop his visits as mentioned in the first circumstance specifie-l above does not explain his action. Let us as•ume, however, that even this evidence of strained relations had not been giTen. That can Le no reason for doubting the evidence, as regards the other circumstances that has been adduced or for hesitating to draw the ineBcapable ·conclusion from them. The motive behind a crime is a relevant fact of which evidencti can be given. The absence of a motive is a also a circumstance ·which is relevant for assessing the evidence. The circumstances which have been mentioned above as proving the guilt of the acuused Rajinder are however .not weakened at all by this fact that the motive has not - been established. It often happens that only the culprit himself knows what moved him to a certain course of action. This case appears to be one like that.

We are satisfied that Rajinder Kumar has rightly been convicted under s. 302 of the Indian Penal Code and sentenced to death. The case against J agdish . Qhander rests on Bhagat Ram's evidence. This witne.ss, a youth of seven teen, joined the service of t h.e accused about 5 or 6 months before January 1961. He was a servant in the house on the 5th January. He has .;_,, 3 s.c.R. given evidence that when on that day at about 9 or 10 p. m. he asked . for the key of the Garage to bring out his bedding which was there the appellant Jagdish said tha.t he would do it himself and actually brought out the bedding.

He has further said that when at about 2 O'clock he got up to make water he saw Rajinder and his father, walking about in front of the Garage, that they were talking ·, to each other but kept quiet when he went out; and also that he could not sleep for about a couple of hours after that and that during all this time both the father and son-Rajinder and Jagdishremained outside the house. We have already ~tated above that there is no ·reason for us to interfere with the view tak~n by the courts below that Bhagat Ram's evidence should be believed. Once that is believed the conduct of J agdish as proved by it becomes incapable of explanation on any other reasonable hypothesis than that after coming to know that Rajinder had murdered Tonny he helped Rajinder in concealing the dead body by burying it underground. Mr. Chari suggested tha.t Rajinder might have told his father that the boy had died accidentally on receiving au electric shoQk and the learned.

Counsel drew our attention in this connection to the fact that an electric wire made into a ring was found on the thumb of th'3 dead body. The medical examination shows however that this wire had nothing tn do with the boy's death. Mr. Chari accepts that position, but argues that still Rajinder might have falsely told his father that the death was due to electrocution. There might have been seme force in this argument were it not for the fact that a blood-stained banian was found stuffed in the mouth of the boy and a blood-stained towel was also found in the gunny bag. There is therefore no scope for the argument that Jagdish was misinformed by his son Rajinder about how Tonny had met his death. e circumstances 1 hat have been prov rd clearly IHI Il1jinier ir...., si.1, •f l'uaJU D•1 CfJ/t• .f.