2002 Supreme(SC) 829

2002(5) Supreme 357
SUPREME COURT OF INDIA
(From Sikkim High Court)
N. Santosh Hegde & Bisheshwar Prasad Singh, JJ.
Mani Kumar Thapa -Appellant
versus
State of Sikkim -Respondent
Criminal Appeal No. 958 of 2001
Decided on 19-8-2002
Counsel for the Parties :
For the Appellant : U.U. Lalit and Abhijit Sengupta, Advocates.
For the Respondent : A. Mariarputham, Mrs. Aruna Mathur and Anurag D. Mathur, Advocates.

IMPORTANT POINT
From the chain of circumstantial evidence the prosecution has been able to establish beyond all reasonable doubt, irrespective of absence of any motive and corpus delicti, that the appellant did share the common intention of A1 in abducting the deceased, causing his death as also disappearance of evidence of these offences.

Headnote:(i) Indian Penal Code, 1860-Sections 364, 302 and 201-Offences of kidnapping, murder and destroying evidence-Appellant convicted on the basis of circumstantial evidence-Upheld by High Court-Appeal to Supreme Court-Contention that in the absence of any motive and corpus delicti and contradictions in evidence conviction is not sustainable-Whether there is any force in this contention? (No).

       Held : We do not find much force in this argument of Mr. Lalit. It is a well-settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the 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. There are a number of possibilities where a dead body could be disposed of without trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. [See Sevaka Perumal & Anr. v. State of Tamil Nadu [1991(3) SCC 471]. Therefore, the argument that in the absence of corups delicti the prosecution case should be rejected, cannot be accepted. Similar fate will follow the argument that in the absence of any specific motive there can be no conviction. In the instant case PW 1, wife of the deceased, his spoken about some enmity between A1 and the deceased. Assuming that this evidence is insufficient to establish the motive for murder even if the prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that it is the accused (including the appellant) alone who could have committed the murder, the absence of the motive will not hamper a safe conviction. In the instant case the chain of circumstances starting from the afternoon of 12.2.1988 right up to 16.2.1988 clearly shows that the deceased was taken by A1 and the appellant in the jeep and thereafter the deceased was never seen. The subsequent conduct of A1 visiting the check-post in the night, A1 and A2 visiting the check-post thereafter at different times without an acceptable reason, A1 and PW 22 visiting the Kerabari Forest Headquarters on 13.2.1988 and thereafter recovery of the belongings of the deceased from the place where the dead body was allegedly thrown in the first instance, the apprehension entertained by the deceased which was made known to PW 3, the apprehension entertained by PW 5 which was made known to his superior vide letters Ex. P2 and P3, the statements of the accused made to PW 5 (to the extent they are acceptable), the contradictory versions given by the appellant to PWs 5 and 36, the presence of the appellant and A1 together at the farewell function of their colleague in the evening of 12.2.1988 and unacceptable explanation amounting to falsehood given by the appellant in regard to his whereabouts on 12.2.1988 cumulatively establish the continuous links in the chain of circumstances which was, in our opinion, rightly accepted by the courts below to base a conviction. Having carefully considered the evidence led by the prosecution in regard to the above circumstances we are of the opinion that the courts below were justified in arriving at the finding that the appellant was guilty of the charge framed against him, and we find no reason whatsoever to disagree with this finding. (Para 4)

       (ii) Indian Penal Code, 1860-Sections 304, 302, 201/34-Offences of kidnapping/abduction, murder and destroying evidence in furtherance of common intention-Appellant and his senior convicted for-Upheld by High Court-Pending trial senior of appellant (A1) dying-Appeal against-Contention that appellant shared no common intention, he only obeyed his senior-Whether correct? (No)-Result-Appeal dismissed.

       Held : If the prosecution case were to be confined only to the facts referred to by the learned counsel for the appellant in his presentation of the hypothesis then there may be some force in the said argument. But then while considering a hypothesis of this nature, we will have to take into consideration the entire prosecution case and the circumstances proved by the prosecution as also any legitimate inference that could be drawn from such proved circumstances. If that is done then we notice the main plank of the appellant s hypothesis that the appellant did not know the intention of A1 in taking away the deceased with him in his jeep, falls to the ground. In this regard we notice that it is an admitted fact as could be seen hereafter that the appellant was found in the company of A1 on 12.2.1988 sometime in the afternoon while travelling in the jeep driven by A1 and searching for the deceased. To the extent that he was with A1 on that afternoon is admitted by the appellant himself in his statement under Section 313 Cr.P.C. From the evidence of PWs 3, 5 to 9, 11 and 12, the prosecution has established that A1 and the appellant ultimately met the deceased and took him away in the jeep driven by A1. During that time PW 5 also accompanied these accused persons and the deceased to some distance in the jeep. It is a fact that then the appellant did not in any manner indicate that he shared the common intention of A1 in taking the deceased away. But then if we examine the conduct of the appellant we find if really the appellant did not know the object for which the deceased was being taken in the jeep, one would have expected as a natural conduct at least after PW 5 alighted from the vehicle, the appellant would have asked A1 the purpose of taking the deceased with them. The appellant had done no such thing nor has the appellant given any explanation in his statement under Section 313 Cr.P.C. in this regard. The explanation in this regard is only found in the argument of the learned counsel in this Court which is that the appellant being an obedient subordinate of A1, might not have questioned the authority of his superior. We do not think such an explanation is acceptable to anybody. If really the appellant was innocent, having known that a crime is committed, any prudent person if he was innocent, would certainly have tried to dissuade A1 from committing a crime and if he failed in his attempt, he would have certainly taken steps to see that his non involvement is safeguarded by seeking help from others. Failure to do so makes us infer that the appellant already knew the intention of A1 and acquiesced with the same. Here we would also note that in the normal course if the deceased was being taken for interrogation or for the purpose of keeping him away from any mischief that A1 suspected him of planning to commit in the meeting of the Chief Minister then the normal destination would have been the Police Station but that was not the direction in which the vehicle was moving, therefore, it is legitimate for us to conclude that the appellant knew that the deceased was being taken towards the check-post with certain other oblique motive. This conduct of the appellant in not trying to find out the reason for taking the deceased and the destination further strengthen our inference that the appellant knew well in advance what was the reason and the destination to which the deceased was being taken. Assuming for argument s sake that he was an obedient or innocent or ignorant enough to keep quiet right through the journey then one would have expected him on his return at least to having informed of the incident to some person in authority or at least to a friend with a view to exculpate himself from the incident in which the deceased lost his life except what he told PW 5 on 13th and 16th of February. Which, of course, is only one of the version of his story which the appellant had adopted to mislead the investigation. This statement to PW 5 apart we see there is nothing which the appellant did which is in consonance with his innocence. Per contra, it is seen that the appellant accompanied A1 in the evening of 12.2.1988 to a farewell function organised to bid farewell to one of their colleagues, this also indicates the appellant s conduct in sharing A1 s intention. It is further seen that on 13.2.1988 the appellant accompanied A1 went to Ramam check-post without there being any official reason for the same except to deliver two torch-lights. We find it difficult to believe that the appellant who witnessed a crime to which he is not a party, would venture to go again with A1 on 13.2.1988 to the scene of the occurrence if he was actually innocent. It is also to be noticed that even though on 13.2.1988 he told PW 5 about the incident of 12.2.1988 without inculpating himself, he again goes to Ramam check-post on 14.2.1988. This constant visit to the place of the incident along with A1 makes the hypothesis presented on behalf of the appellant highly improbable and gives sufficient room to infer that the appellant did know and share the intention harboured by A1 in the crime. If we analyse the prosecution evidence further it is seen that in regard to the travelling in the jeep from where they picked up the deceased then on to Ramam check-post and back, we see the appellant has given 3 different versions on 3 different occasions. To PW 5 he stated that while taking the deceased towards Singla from the check-post, he allowed him to run away from the jeep after they crossed the Ramam check-post when A1 had got down from the jeep to ease himself. To PW 36 he told that when they were bringing a smuggler from Darjeeling side to Ramam check-post i.e. from the opposite direction the smuggler escaped from the jeep and in the process of running he fell down and suffered fatal injuries. In his statement under Section 313 Cr.P.C. before the court, he stated that on 12.2.1988 he had gone to Soreng on the orders of his S.P. as the Chief Minister was visiting Soreng and on the evening of that day as he did not have any vehicle, he took a lift in the vehicle of A1 up to Jorthang from where he went to his quarters and accused No. 1 went to Naya Bazar Dak bungalow as he was camping there on duty. These 3 different versions which are self-contradictory further show that the appellant has not been consistent in his stand as to what happened on 12.2.1988. This Court in the case of State of Maharashtra v. Suresh (2000(1) SCC 471) has held that a false answer offered by the accused when his attention was drawn to any inculpating circumstance would render such circumstance as capable of inculpating him. The Court also held that in such a situation a false answer can also be counted as providing "a missing link" in completing the chain. If the said principle in law is to be accepted, the statement of the appellant made under Section 313 Cr.P.C. being palpably false and there being cogent evidence adduced by the prosecution to show that the appellant had given two other versions as to the incident of 12.2.1988, we will have to proceed on the basis that the appellant has not explained the inculpating circumstances established by the prosecution against him which would form an additional link in the chain of circumstances. Then again there is another factor to be taken note of in regard to the sharing of the common object of A1 by the appellant. It has come in evidence of PW 5 that the appellant had told him that after the body of the deceased was taken from the place where it had fallen in the first instance, the appellant had taken away certain possible identification materials like Panchayat seal and some personal papers with a view to create a false evidence as to the whereabouts of the deceased. This also indicates the involvement of the appellant in the crime. These circumstances and inferences drawn from such proved circumstances establish beyond all reasonable doubt that the appellant did share the common intention of A1 in taking the deceased away in the jeep driven by A1 and causing the murder, therefore, the hypothesis of innocence pleaded on behalf of the appellant in our opinion is not in consonance with the innocence of the appellant. On the contrary, from the chain of circumstantial evidence the prosecution has been able to establish beyond all reasonable doubt that the appellant did share the common intention of A1 in abducting the deceased, causing his death as also causing disappearance of evidence of offence under Section 201 IPC. For the reasons stated above, this appeal fails and the same is dismissed. (Paras 6 and 7)