Full Text
HIGH COURT OF DELHI
BANARSI LAL .... Appellant Represented by: Mr. Sanat Kumar, Sr. Advocate with Ms. Inderjeet Sidhu, Advocate (DHCLSC)
State with Inspector Sanjay, P.S. Bindapur.
HON'BLE MR. JUSTICE ANISH DAYAL MUKTA GUPTA, J.
JUDGMENT
1. By this appeal, the appellant challenges the impugned judgment dated 30th September, 2019 whereby the learned Trial Court convicted the appellant for offences punishable under Section 302/201 of IPC and the order on sentence dated 30th November, 2019 directing the appellant to undergo life imprisonment along with a fine of ₹10,000/- under Section 302 IPC, in default to undergo rigorous imprisonment for a period of one year and to undergo rigorous imprisonment for a period of five years along with a fine of ₹5,000/- under Section 201 IPC, in default to undergo rigorous imprisonment for a period of three months.
2. Brief facts of the case are that on 05th January, 2009, father of the deceased, Hari Prakash (PW-1) was informed by his wife, Sushila (PW-7), at about 9 PM that the accused Banarsi Lal had taken their son Harish @ Babloo (deceased) on motorcycle, but the son failed to return home. Hari Prakash tried to call his son but his mobile number 9818117020 was switched off. At about 10 PM, he went to PS Dabri and told about his missing son but he was told to wait. He searched for deceased till midnight and also during the day on 06th January, 2009. Ultimately he lodged a missing report with respect to his son and on 07th January, 2009, he contacted two boys namely Indresh Kumar and Kanhiya who belonged to the native village of the accused Banarsi Lal, who took him to the house of the accused at K-10, Chanakya Place but the accused was not found there, and they were informed that the accused had left the house on 05th January, 2009 along with his belonging and was absconding. In the afternoon of the same day i.e. on 07th, January, 2009, a telephonic call was received from mobile phone of Harish @ Babloo upon landline no. 32713948 having a caller ID facility installed in the house which was attended by Hari Prakash and the caller asked him to arrange money for his release of his son and on Hari Prakash (PW-1) asking the amount, the call was disconnected. Meanwhile, on 5th January, 2009, information vide DD No. 26A was received about one box lying near Old Age Home, Bindapur Extn., Near Shiv Mandir Old Park out of which blood was oozing out. ASI Mahender Singh (PW-13) along with Ct. Karanvir (PW-23) and other staff reached reached the spot and found an iron box on public road near H. No. C-26, New Janakpuri. ASI Mahender Singh (PW-13) broke the box open and found one headless body of a person aged about 30-35 years. Crime team was called on the spot (Ex.PW/36A & B) and ASI Mahender sent tehrir to the PS through Ct. Karambir and got the FIR No. 06/2009 under Sections 302/201 IPC registered (Ex.PW-8/C). Two cloth gamchas checkdar having blood stains were found inside the box along with another cloth piece having printed design and blood stains. After registration of the case, the first Investigating Officer, Hoshiar Singh (PW-35) made efforts for identification of the body and after completing the essential proceedings at the spot, he sent the body to DDU Hospital Mortuary. Thereafter, on the evening of 07th January, 2009, Hari Prakash received information from PS Bindapur that one headless dead body was recovered from a box near Old Age Home, Bindapur. On 8th January, 2009, Hari Prakash went to the DDU Hospital where he identified the dead body of his son from the hands and feet (Ex.PW-1/C), and his wife, Sushila (PW-7) and daughter Sujata (PW-2) also identified the dead body of the deceased (Ex.PW-7/A and Ex.PW-2/A respectively). The post mortem of the dead body was conducted and the dead body was handed over to Hari Prakash vide handing over memo Ex.PW-1/D. Thereafter, on 06th February, 2009, one head was recovered and seized (Ex.PW-1/F) from the bushes at Chanakya Place, and the head was identified by the family members of Hari Prakash (Ex.PW-1/E) to be that of his son. The head was also sent for post mortem examination.
3. The postmortem of both i.e., headless body of the deceased Harish Chand @ Babloo and his decapitated head (Ex.PW-25/A and Ex.PW-25/B) was conducted on 9th January, 2009 at about 4 PM and 12th February, 2009 at about 1:30 PM at DDU Hospital, Hari Nagar, New Delhi by Dr. Komal Singh (PW-25), HOD, Forensic Medicine, DDU Hospital, New Delhi. The findings of the post mortem of the body were: i. The nail marks were present over the left clavicle area approximately 3 cms lateral and over the body of sternum, three in number. ii. Decapitation of the head completely cut by a sharp weapon, total circumference of the neck area was 24 cms and was cut at the 6th and 7th cervical bone area. Tracheal lumen seen and sharp cut edges of neck tissues visible. No clotted blood present.
4. On internal examination, Dr. Komal Singh (PW-25) further submitted that the skin underneath had clotted blood at the lower end of the neck. Both lungs were congested and oedematose. The stomach contained 150ml of identifiable rice and daal. All other organs were congested. The post mortem report of the deceased further noted, “the time since death was approximately four days. The cause of death was asphyxia subsequent to constricting force over the neck, decapitation of the head was a postmortem injury”.
5. The findings of the post mortem of the decapitated head were: i. Both eyes closed, mouth partially opened, comea hazy. ii. Decapitated head at the lower end of the neck. Contusions on the left side of the face 3 x 3 cm and the fracture of the nasal bone. Contusion on the frontal area 4 x 3 cm, circumference of the lower cut part was 33 cm. Sub- scalp hematoma. Brain liquified.
6. The post mortem report of the decapitated head further noted, “the time since death was approximately thirty-eight days. Decapitation of the head was done after the death of the person. The injury over the nose could be caused by scuffle or blunt impact”.
7. Since appellant Banarsi Lal was the accused, in view of the deceased having left his house with appellant on 5th January, 2009 and was not traceable, NBW were issued against the appellant Banarsi Lal. Thereafter, proceedings under Sections 82 and 83 CrPC were carried out against him. On 03rd August, 2009, investigation of the case was assigned to Inspector Brijesh Namboori (PW-34). On 27th August, 2009, upon secret information appellant Banarsi Lal was arrested (Ex.PW-24/A) and his disclosure statement was recorded. Thereafter, appellant Banarsi Lal got recovered a chhurri (Ex.PW-24/E) from a slab inside the room at 2nd floor of his house no. 119, Gali No.6, Vikas Nagar, Uttam Nagar. The appellant also took out a mobile phone of Motorola make from a cloth bag hanging over a screw in his room which was seized vide Ex.PW-24/F. Further pointing out memo (Ex.PW-24/G) was prepared qua the place where the murder was committed, head was thrown and where the headless dead body was left in a box.
8. Chargesheet was filed and charge was framed against appellant Banarsi Lal for offences punishable under Sections 302/201/34 IPC. During the course of trial, 40 prosecution witnesses were examined. Case of the prosecution is based on circumstantial evidence and there is no eye witness to the alleged offence.
9. Learned counsel for the appellant Banarsi Lal contended that the impugned judgment of the Trial Court does not record any appreciation of evidence and is rather based on mechanical exercise of merely accepting evidence. It was contended that the learned Trial Court failed to consider that important links and circumstances are missing and the chain of events is not complete. No motive was proved and the prosecution case rests entirely on circumstantial evidence. It was contended that even if the prosecution version of last seen is to be believed, the same is not sufficient for convicting the appellant for murder, reliance was placed on the decision reported as (2012) 6 SCC 403 Sahadevan v. State of Tamil Nadu. It was contended that the appellant was arrested on 27th August, 2009, i.e. after more than seven months from the alleged date of occurrence (Ex.PW-24/A) without any evidence implicating him. It was further contended that the recovery of the mobile phone (Ex.PW-1/A) of deceased was also effected after seven months from the date of incident, from the house of the appellant and the same was not even sealed. It was submitted that it is highly improbable that the appellant would keep the said handset with him even after more than seven months after the incident. Neither any independent witness joined the recovery proceedings nor any TIP of the said mobile phone was got conducted. With respect to the knife allegedly recovered at the instance of appellant (Ex.PW-24/E) it was contended that no expert opinion was sought and hence, the same cannot be held to support the case of prosecution as the same cannot be connected to the crime. Qua the recovery of dead body, it was contended that the recovery is not disputed, however, the prosecution story is improbable and unbelievable that the appellant committed the murder, threw the body in broad day light in a residential area and thereafter, returned to work within two hours. As regards the recovery of trunk with a headless body from near the residence of appellant, it was contended that the credibility of Smt. Noor Jahan (PW-9) is doubtful and that she was a planted witness. It was contended that her presence near the residence of the appellant i.e. Chanakya Puri is doubtful as she was a resident of Sita Puri which is about two and a half kilometers away. Further, no iron box was shown to her for identification and no effort was made to locate the rickshaw or the rickshaw puller to corroborate the prosecution story. Furthermore, both the witnesses Uma Shankar (PW-19) and Umesh Kumar (PW-20) who were witnesses to the recovery iron box (Ex.PW-13/B) did not support the prosecution case and were declared hostile. The said iron box was also not even sealed by the police. It was further contended that there is no question of absconding of appellant as he returned to his work on the day of occurrence i.e., 05th January, 2009 and worked till 07th January, 2009 as per the employer of all the accused persons, Mohd. Nizamuddin (PW-3). Further, in the year 2009, “Moharram” was celebrated on 8th January, 2009, so in all probabilities, the appellant and the co-accused left the factory on 08th January, 2009 on account of Moharram. It was also contended the case has not been properly investigated as the viscera report (Ex.PW-37/A), the stomach and intestine of the deceased contained ethyl alcohol, but no efforts were made to investigate the possibility of involvement of any third person in the crime. Further, no efforts were made to investigate how the body in two pieces was transported and by what vehicle. No investigation was made to locate the motorbike and helmet of the deceased and even the place of occurrence of the crime was not investigated. And it was contended that the appellant has no role to play in the commission of the alleged crime and has been falsely implicated to solve a blind murder and thus, be acquitted.
10. On the other hand, learned APP for the State contended that the mother of the deceased, Sushila Kumar (PW-7) proves the motive and the last seen evidence as about twelve years back, in 1998, accused had demanded ₹85,000/- from the family of the deceased to purchase a jeep. The accused sold the jeep and failed to return the full money except for ₹25,000/in three instalments. The motive to commit the offence was also proved by the testimony of Hari Prakash, father of the deceased. Prosecution has proved that the deceased went with the appellant. The dead body was found on 5th January, 2009, at about 5:30 PM, information whereof was recorded vide DD No. 26A at 5.45 P.M. Thus, in terms of Section 106 of the Evidence Act onus shifts on the appellant to show how the deceased died. The decapitated body of the deceased was found inside a locked iron box along with the rod on 5th January, 2009 and the report of post-mortem conducted on 9th January, 2009 opined the time since death to be approximately four days (Ex.PW-25/A).
11. Having heard the counsel for the parties and perusing the record, the evidences as noted hereinafter emerges on record.
12. Mother of deceased, Sushila (PW-7) in her examination in chief stated that Banarsi Lal was the son of her late brother Kishori. She stated that in the year 1998, Banarsi purchased a Jeep and borrowed Rs. 85,000/- from her. The accused had promised to return the amount out of the earnings from plying the jeep. After plying the jeep for about 5-6 months at Gorakhpur, he sold the same. On becoming aware of this, her husband went to Gorakhpur and asked him as to why he had sold the jeep. Banarsi told her husband that he was in need of money. Thereafter, her husband asked Banarsi to return the borrowed amount of ₹85,000/-. Banarsi returned ₹5000/- and ₹10,000/- on two other occasions and no payment was made thereafter because of which the relationship was severed with Banarsi. In the 2007, on the marriage of her daughter Sujata, Banarsi came to her house and ever since used to stay at her house sometime for 2 days and sometimes for 3-4 days whenever he used to visit Delhi. She stated that Banarsi came to her house on 02nd January, 2009 and stayed till 05th January, 2009. On 5th January, 2009, after her husband left for work at about 2 pm, appellant Banarsi Lal came to her house and asked for deceased, and she informed the appellant that the deceased was not at home. When the deceased returned back at about 3 pm, she asked the deceased about his whereabouts, to which deceased replied that he had gone to his friend Ram Sagar for getting a helmet for Banarsi Lal for going to Sita Puri market for getting the DVD. Thereafter, Banarsi Lal and deceased went on the motorcycle of his deceased son to the Sita Puri Market. When her husband returned from his office, he was informed that Banarsi Lal had taken his son for purchasing DVD on the motorcycle of deceased and has not returned. Her husband tried contacting his son, but the phone no. of deceased was switched off. Thereafter, her husband went to the police to enquire about his son where he was advised to wait till the next day and on the next day i.e. 06th January, 2009, her husband lodged a missing report. On 07th January, 2009, her husband went to the house of Banarsi Lal at K-10, Chanakya Place with two boys Indresh and Kanhaiya, where he was informed that Banarsi Lal was absconding since 05th January, 2009. On the same day her husband received a telephone call from the mobile phone of the deceased on his landline that the deceased was in their custody and demanded ransom, but on asking the amount, the call was disconnected. Later in the day, an information was received from PS Bindapur that a headless body was recovered in a box from near the old age home at Bindapur. She identified the body of his son at DDU Hospital as also the head after one month on 8th January, 2009, and the dead body was handed over to her husband after the post mortem on 09th January, 2009. After one month, the head of her son was recovered from a park near Bhogia building, from a vacant plot near the place where the accused Banarsi Lal was residing.
13. Father of the deceased Hari Prakash (PW-1) and sister of deceased Sujata (PW-2) corroborated the version of Shalini (PW-7).
14. As per the testimony of Mohd. Nizamuddin @ Nizam (PW-3), the employer of Banarasi Lal, in 2009 he was doing business of tailoring at Chanakya Place, Uttam Nagar. In the aforesaid shop, accused Banarsi, Ashiq Ali and Munna were employed by him. In his cross examination, he stated having informed the police that accused persons were employed in his factory in December, 2008 and that the accused Banarsi was not coming to the said factory from 2nd January, 2009 and that on 5th January, 2009 at about 3:00 PM, he took Ashiq and Munna with him and they all returned in the evening on the same day. He further admitted that all the accused persons worked in his factory till 7th January, 2009 during day hours and left at about 4:00 PM and did not return back.
15. Noor Jahan (PW-9) deposed that on 5th January 2019 at about 5 pm, she left her house for going to general merchant shop for purchasing household goods. She saw one rickshaw along with its puller in front of house No. K-10, Chanakya Place. The rickshaw was loaded with one box of white colour made of iron and some bags were also lying on the said box and she thought that some tenant had come there or was about to leave. On 06th January, 2009, she saw an old man with his relatives sitting outside the main door of her house and on inquiry, the said old man replied that his son was missing. From the night of 05th January, 2009 till 06th January, 2009, an announcement was made on the rickshaw that one dead body was recovered and so she told the old man to contact PS Bindapur. Later in the day, some more persons came and visited the room at K-10, Chanakya Place and they asked the boy at K-10 as to where was his brother-in-law (behenoi), to which the boy replied that he had a quarrel with his behenoi and so he had thrown him out of his house, and so his behenoi had left the house with his luggage.
16. ASI Mahender Singh (PW-13) deposed that, one iron box of light silver color was found near Old Age Home Talab, New Janak Puri from which blood was oozing out. He found one headless dead body and blood stains inside the box. He deposed that two cloth gamchas checkdar having blood stains were found inside the box along with another cloth piece having printed design and blood stains. He further prepared rukka and handed over the investigation to Hoshiar Singh (PW-35). He further stated that one boy Puneet residing nearby told him that one rickshaw puller had left the iron box and fled away.
17. Uma Shankar (PW-19) deposed that he and his brother used to reside with the appellant in a rented room at a house at Chanakya Place, Pankha Road, Uttam Nagar, Delhi. He stated that one key of the house used to remain with him and his brother and one key was with the appellant. He stated that in the first week of January, 2009, police came to their house and apprehended him, his brother Umesh and the appellant Banarsi Lal and took them to PS Bindapur. He stated that they all were detained for 2-3 days and their signatures were taken on blank papers. This witness was declared hostile. Umesh (PW-20, brother of Uma Shankar) also stated the same version and was also declared hostile.
18. Sanjay Jha (PW-29) in his examination in chief stated that the appellant was a tenant at the first floor of his house and that the appellant was missing since 06th January, 2009. He also stated that two persons including one of his brother in law also stayed in that room.
19. Inspector Brijesh Namboori (PW-34) deposed that on 27th August, 2009, he received a secret information about the accused involved i.e., Banarsi Lal. He apprehended Banarasi Lal from H. No. 119, Gali No.6, Vikas Nagar, Uttam Nagar, New Delhi. Disclosure statement of accused was recorded in which accused disclosed about his involvement in the commission of murder of deceased along with his associates Ashiq Ali and Munna. The accused disclosed that his associates had taken away clothes and SIM card of the deceased and got recovered a churri from a slab inside the room and a mobile phone from a bag hanging on the wall of the 2nd floor of his house, No.119, Gali No.6, Vikas Nagar, Uttam Nagar, New Delhi. He further stated that on 28th August, 2009, accused further disclosed information and led police party to H.No. K-10, Chanakya Place and pointed out to the place of alleged offence. Thereafter, accused pointed towards a vacant plot on forty-foot road, near Mongia Building, Chanakya Place, where the head of deceased was thrown. Thereafter, accused pointed out the place i.e., near Talab, Village Bindapur where they left headless dead body of deceased in a box. On 30th August, 2009, PW-34 prepared site plan of the spot (Ex.PW-34/A) i.e., K-10, Chanakya Place-II. In his cross examination, he stated that he neither sealed the recovered mobile phone nor sought doctor‟s opinion regarding weapon of offence, and that the places from where the head and dead body were recovered were already in his knowledge prior to the arrest of the appellant.
20. In his statement recorded under Section 313 CrPC, the appellant denied the circumstances put to him proved by the prosecution and took the plea that he was innocent and falsely implicated. He had nothing to do with the alleged commission of offence. Nothing was recovered either from his possession or at his instance. In January 2009, Police apprehended him and kept in the lock-up for 2 – 3 days and when they did not find any evidence against him, they released him. Later when they could not succeed in tracing the actual culprits, they arrested the appellant and falsely implicated him by making false documents after obtaining signatures on blank papers.
21. As noted above, case of the prosecution rests on circumstantial evidence, last seen evidence being of Sushila who deposed that the deceased who was aged 22 years had gone with the appellant who came to their house on 2nd January, 2009 and stayed at their house. On 4th January, 2009 the appellant took both her sons to market at Palam, as the appellant wanted to purchase clothes for his son and returned back. On 5th January, 2009 the appellant took the deceased alone as he wanted to purchase the DVD and her son went along with the appellant to Sitapuri market for the purchase of DVD on the motorcycle after 2 PM. When she tried to call the deceased, as he did not come back, mobile phone of the deceased was found switched off. Version of Sushila Devi is corroborated by PW-1 and PW-2 i.e. the father and sister of the deceased.
22. It may be noted that in the missing report lodged on 6th January 2009 at 11:30 am exhibited vide Ex. PW-35/B, even before the knowledge of a decapitated dead body being found to PW-1, he stated in the missing report that the deceased had gone on 5th January 2009 with Banarasi Lal, the appellant herein who had been staying with them, on his Pulsar motorcycle DL-98-2962.
23. From the post-mortem report exhibited as Ex.25/A it has been proved that the cause of death in this case was asphyxia subsequent to constricting force over neck of deceased and decapitation of the head was a post-mortem injury. Thus, the head was decapitated after causing asphyxia by force on the neck thereby clearly proving that the death was homicidal in nature. The post-mortem conducted on the body showed the time since death being 4 days which coincides with the time after deceased went with the appellant in the evening of 5th January, 2009.
24. Further, statement of Nizamuddin (PW-3) shows that Banarsi did not report to duty from 2nd January, 2009 which corroborates the version of Sushila who stated that Banarsi was staying in their house since 2nd January,
2009. Nizamuddin further stated that on 5th January, 2009 Banarsi came to the factory and took co-accused Munna and Ashiq with him and came back at about 6.00 - 7.00 PM and thereafter on 7th January, 2009 in the evening all of them went and he did not know where they had gone.
25. From the deposition of Sanjay Jha (PW-29) it is evident that Banarsi Lal was a tenant in the room on the first floor of his house bearing No. K-10, Chanakya Place, Part-II and he went missing from there since 6th January,
2009. He also stated that two other persons including one of his brother-inlaws was also residing. This version of PW-29 has been accepted by the appellant in his statement under Section 313 Cr.P.C. where he stated that he along with two persons including one being his brother-in-law was residing in property of PW-29 though he denied that he went missing from 6th January, 2009.
26. The independent witness, Smt. Noor Jahan (PW-9) in her deposition before court deposed that on 5th January, 2009, she left her house to purchase households good and saw one rickshaw along with its puller loaded with one box of white color made of iron and some bags were also lying on the aforesaid box, in front of H.No. K-10, Chanakya Place i.e., house where accused used to reside as a tenant. The decapitated body was recovered on 5th January, 2009 at about 5:30 PM and the said information was recorded vide DD No. 26A at 5:42 PM. Further, Hari Prakash (PW-1) in his cross examination stated that the dead body was recovered within a distance of approximately four-five furlongs from the house of accused. And that the head of deceased was found at a distance of two furlong from the house of accused as deposed by Sushila Kumar (PW-7) in her examination in chief.
27. Prosecution has also proved the recovery of the mobile phone of the deceased from a bag hanging on the wall of the room of the appellant at his instance. The said recovery was also witnessed by HC Naresh Kumar (PW-24). From the call detail records of the deceased‟s mobile number 9818117020 (Ex.PW-16/D) and the landline number 32713948 (Ex.PW- 26/D), version of the father of the deceased that a ransom call was made from the mobile number of the deceased to the latter‟s landline number on 7th January, 2009 at 15.28.19 hours which lasted for about 114 seconds using the mobile handset belonging to the deceased is corroborated.
28. Case of the appellant is that no recovery was made and appellant was kept in custody for 2-3 days, whereafter he was released and since for seven months the case was not solved, he was implicated. The appellant has also taken the plea that he had gone due to the leave of Moharram. Even as per the testimony of Nizamuddin the appellant and his associates left the factory on 7th January and were not available thereafter. Since the appellant did not join the job even after Moharram, it clearly shows that he absconded after the incident.
29. Though the prosecution has proved the recovery of knife at the instance of the appellant from the bag hanging on the wall of the room at his instance, however the said recovery of knife is not connected to the cause of death for the reason, cause of death has been opined to be asphyxia subsequent to constriction force and not due to a stab injury.
30. Merely because the viscera report Ex.PW-37/A showed presence of ethyl alcohol, would not negate the fact that the appellant was the one who took the deceased with him at 2 p.m. on 5th January 2009 and at 5:30 PM, on the same day his incapacitated body after committing the murder was found.
31. The prosecution has also proved the motive from the depositions of Hari Prakash and Sushila who deposed that appellant took loan from Hari Prakash for buying the jeep for plying, however he sold the jeep but did not return the money except for ₹25,000/-. Due to this the relations got severed till appellant came in the wedding of the daughter of Hari Prakash.
32. The evidence which clinches the prosecution case that the appellant committed the murder of the deceased is that on the fateful day, the deceased had gone with the appellant, as deposed to by Sushila Kumari (PW-7) the mother of the deceased at about 2 PM and his decapitated body was found at around 5:30 PM on the same day. The time gap between the deceased going with the appellant and his headless dead body being found being just three and a half hour, the appellant owes an explanation under Section 106 of the Indian Evidence Act, as held by the Hon‟ble Supreme Court in the decision in (2018) 6 SCC 610 Satpal Vs. State of Haryana:
33. The second very important piece of evidence is that after the death of the deceased, the mobile phone of the deceased was used to make a ransom call on 7th January, 2009 and the said mobile phone was recovered at the instance of the appellant after his arrest, as was witnessed by HC Naresh Kumar.
34. Though the deposition of Smt. Noor Jahan, who saw one box of white colour made of iron and some bags lying in front of the house of the appellant, cannot be used as incriminating against the appellant as he could not have been said to be in exclusive possession of the said box as the same was found in a rickshaw on the road, an open area and the box having been not identified by Noor Jahan in the Court, however the evidence of the deceased having last gone with the appellant, soon thereafter within three and a half hours, the decapitated body of the deceased was found in a box near the house of the appellant, the mobile phone of the deceased being found at the instance of the appellant and the conduct of the appellant of absconding from his place of residence after the incident are sufficient to raise the presumption under Section 106 of the Indian Evidence Act which casts the onus on the appellant to explain how the deceased died after he went with him and how he came in possession of the mobile phone of the deceased. The body of the deceased was identified by the family members i.e. father (PW-1), elder sister (PW-2) and mother (PW-7) and in view of the fact that he was alive at 2 P.M. on 5th January, 2009; the post-mortem report giving the time since death based on the body as 4 days on 9th January 2009 and based on the condition of the head as 38 days on 12th February, 2009 further corroborate that soon after the deceased was taken by the appellant on 5th January, 2009 he was killed by constricting the neck and the body was chopped and disposed off to conceal the identity.
35. As noted above, the plea of the appellant is of false implication and that in January 2009 he was apprehended by the Police, kept in lock-up for 2-3 days and when no evidence was found, he was released and later when the actual culprit was not found the appellant was arrested. However, there is no material on record to show that the appellant was kept in illegal custody for 2-3 days except the deposition of Uma Shankar and Umesh who were also residing in the same room with the deceased.
36. In the judgment reported as (2000) 5 SCC 197 Joseph S/o Kooveli Poulo Vs. State of Kerala wherein the facts were that the deceased was an employee of a school and appellant represented himself to be the husband of one of the sisters of the deceased Gracy went to St. Mary‟s Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permission of the sister in charge of the Convent. It was the case of the prosecution that the appellant not only raped and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. As the deceased was last seen alive only in the company of Joseph, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to PW 11 by the appellant, were also seized and when questioned under Section 313 CrPC, the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime, the Hon‟ble Supreme Court held:
37. In view of the discussion aforesaid, this Court finds no error in the impugned judgment of conviction and order on sentence which are upheld.
38. Appeal is accordingly dismissed.
39. Copy of the judgment be uploaded on the website and be sent to the Superintendent Jail for updation of record and intimation to the appellant. (MUKTA GUPTA) JUDGE (ANISH DAYAL)