Important point
It is not at all necessary for a conviction for murder that the corpus delicti (the dead body) be found, if as in this case, there is direct evidence of two eye witnesses that appellants (particularly appellant No. 9) killed the deceased before his body was taken away by them.

Headnote:(i) Indian Penal Code, 1860—Sections 302, 302 r/w 149 and 201—Offences under—Appellants along with others came when deceased was taking meals, armed with weapons, caught hold of the deceased, assaulted, dragged and pushed him down near a pitch—Appellant 9 dealt a chhura blow to finish him—Thereafter they took away the deceased—Sessions Court convicted all and High Court affirmed it in appeal—Appeal to Supreme Court—Contention that it was a case where dead body (corpus delicti) is not found —Eye witnesses (mother and sister who were serving meals) not reliable as incident took place out of courtyard where they had not gone—Whether correct? (No)—Whether case is covered u/s 106 of Evidence Act? (Yes)—Case law reviewed—(Evidence Act, 1872—Section 106—Burden of proving fact especially within knowledge).
       Held : There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above) it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial (evidence) leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder. Both the Courts below have come to the conclusion, based upon the evidence of P.Ws. 3 and 4 (who were eye witnesses) that Appellant No. 9 had killed the accused (sic) before the body was taken away by all the Appellants. We have read the evidence of all the witnesses. We have given a careful consideration to the material on record. We see no reason to take a different view. The evidence in this case is direct and there is no reason to disbelieve this evidence. We see no substance in the submission of Mr. Mishra that these two ladies could not have seen the boy being killed and could not have in any case come to a conclusion that he had died. Their presence at the place of incident could not be doubted. Their evidence clearly indicates that the incident took place before their eyes. We cannot accept the submission of Mr. Mishra that their evidence discloses that the incident took place outside the courtyard and on the road. Mr. Mishra has relied on stray sentences. The evidence has to be read as a whole. Read as a whole both the ladies have given positive evidence that the murder took place in the courtyard. We also see no substance in the submission that PW 3 and PW 4 could not positively say that Krishnanand Chaudhary had been killed. The evidence is that Bijay Chaudhary stated that “he is still alive and should be billed”. On this statement Appellant 9 gave a chhura blow on the chest. The evidence is that Krishnanand Chaudhary, who was till then struggling twitched and thereafter his body became still. From this it could be concluded that death had taken place. It must be mentioned that even P.W. 1, whose evidence Mr. Mishra relied upon, has deposed that Krishnanand Chaudhary had died. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura blow was given on the chest. Thus Chhura blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The Appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the Appellants. The Appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the Appellants were suspecting the boy to have kidnapped and killed the child of the family of the Appellants, it was for the Appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the Court there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The Appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra. (Paras 22 & 23)
       (ii) Indian Penal Code, 1860—Sections 302, 302 r/w 149 and 201—Appellants tried for offences under—Their conviction by Trial Court affirmed in appeal—Appeal to Supreme Court—Contention about non-examination of Investigating Officer—Whether disproves eye witnesses account of death of deceased in a pitch having no water in it? (No) —Case law referred—Non production of blood stained earth and lungi whether prejudiced appellants’ case? (No)—Doubt on source of light sustainable? (No)—Result—Appeal dismissed.
       Held : In our view, in this case also non-examination of the Investigation Officer has caused no prejudice at all. All that Mr. Mishra could submit was that the examination of the Investigating Officer would have shown that the occurrence had taken place not in the courtyard but outside on die road. The Investigating Officer was not an eye witness. The body had already been removed by the Appellants. The Investigating Officer, therefore, could not have given any evidence as to the actual place of occurrence. There were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not lead to any prejudice to the Appellants. We, therefore, see no substance in this submission. (Para 29)
       Held also : Mr. Mishra next submitted that, admittedly blood stained mud and lungi had been seized but they were not produced. He submitted that these were also not produced. He submitted that this has resulted in prejudice to the Appellants and for that reason also the conviction should be set aside In our view, there is no substance in this submission. Mon production of these items has not resulted in any prejudice to the Appellants. (Para 30)
       Held further : Mr. Mishra submitted that the lanterns which were supposed to be there on the varandah had not been seized or produced at trial. He submitted that as the lanterns were not seized it was not established that there was any source of light. He submitted that for this reason also the evidence of the witnesses cannot be accepted. We see no substance in this submission also. It must be remembered that the evidence exclusively established that the deceased and his father were having meats in the Varandah and that the mother and sister were serving the meals. It is clear that they had put a source of light at that place. This view of ours finds support from the observations made in the case of B. Subba Rao v. Public Prosecutor, High Court of A.P. reported in (1997) 11 SCC 478 : 1997(7) Supreme 155. In this case also an argument had been made that the hurricane lamp had not been seized and produced. This Court held that as it was proved that the deceased was issuing copies of voters’ list and caste certificates and it was a night time, it could legitimately be inferred that there would be some source of light to enable him to perform his job. Mr. Mishra next submitted that, according to the witnesses, the only sources of light were two lanterns, which were lying on the Varandah. He submitted that the evidence of the witnesses shows that the lanterns were lying on the floor. He submitted that as the lanterns were lying on the floor they would only cast their lights near the floor. He submitted that, therefore, there was no light by which the witnesses could have identified the Appellants or seen the incident even if it took place in the courtyard. He submitted that for this reason also the evidence of the witnesses could not be believed and the Appellants should be acquitted. We see no substance in this submission also. It must be remembered that the incident had taken place in a village. As has been held by this Court in the case of Kalika Tiwari v. State of Bihar reported in (1997) 4 SCC 445 : 1997(3) Supreme 397, the visible capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. It has been held that the visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. Also the Appellants were from the same village and were known to PW 3 and PW 4. No other point was raised before us. We thus see no substance in the Appeal. The same stands dismissed. (Paras 31, 32, 33 & 34)

JUDGMENT

S.N. Variava, J.—This Appeal is against a Judgment dated 21st May, 1998 by which the Appeal filed by these Appellants has been dismissed. The Appeal, before the High Court was filed by 11 persons, however during the pendency of that Appeal two persons viz. Bijoy Chaudhary and Mohan Chaudhary expired. Thus, this Appeal is filed by the remaining nine persons.

2. Briefly stated the facts are as follows:

On 17th July, 1980 at about 8 P.M. one Krishnanand Chaudhary and his father Nemo Chaudhary were taking their meals on the varandah of their house. The mother and sister of the said Krishnanand Chaudhary were serving the meals. It is the case of the prosecution that the Appellants, along with some other persons came to that place variously armed with lathis, bhala and chhura. It is the case of the prosecution that they assaulted Krishnanand Chaudhary, dragged him into the courtyard of the house and further assaulted him. It is the case of the prosecution that when the mother and the father tried to save him they were also assaulted. It is the case of the prosecution that the Appellants took Krishnanand Chaudhary to a nearby ditch and pushed him down there. Bijoy Chaudhary (who had expired pending the Appeal in the High Court) is then supposed to have stated that he was still alive and should be killed. On such statement Appellant No. 9 gave a Chhura blow on the chest of Krishnanand Chaudhary which resulted in his death. It is the case of the prosecution that all those persons thereafter left the place taking away the body of the deceased. According to the prosecution the motive for this is that a child of the family of the Appellants had earlier been kidnapped and had been found dead. The Appellants suspected Krishnanand Chaudhary to be responsible for such kidnapping and death. Initially 13 persons were charge sheeted. Two persons died before trial could commence. Thus 11 persons were tried.

3. At the trial, the prosecution examined five witnesses, of which P.W. 5 was a formal witness, who proved the FIR and the seizure list by which blood stained earth, lungi and lathi had been seized. The eye witnesses to the incident were P.W.1 - Dukha Chaudhary, who is a neighbour; P.W.3 - Parmila Devi, who was the mother of the deceased and who had promptly lodged the FIR and P.W.4 - Munni Devi the sister of the deceased. Prosecution also examined P.W. 2 - the brother of the deceased who deposed that when he returned home he was informed about what had happened. It has come on record that the father of the deceased died before the trial started. The prosecution did not examine the Investigating Officer.

4. The trial Court, after considering the evidence convicted Appellant No. 9 of the offence under Section 302 I.P.C. and sentenced him to life imprisonment. The other Appellants were convicted under Sections 302 read with 149 I.P.C. and were also awarded life imprisonment. All the Appellants were also convicted under Section 201 and sentenced to seven years rigorous imprisonment. All the accused then filed an Appeal. As stated above, during the pendency of the Appeal, two of the accused persons expired. The Appeal came to be dismissed by the impugned Order.

5. Mr. Mishra submitted that this was a case where the corpus delicti had not been found. He submitted that there was no proof that Krishnanand Chaudhary has actually died. He submitted mat there was no medical evidence of death. He submitted that the evidence of the prosecution witnesses, to the effect that they had seen Appellant No. 8 killing Krishnanand Chaudhary, could not be believed. He submitted that all that the prosecution could be said to have established was that the said boy had been assaulted and had then been taken away by the Appellants. He submitted that the defence theory that the boy was still alive at the time of the trial could not be ruled out. He submitted that the conviction under Sections 302 and 201 of the Indian Penal Code could not be sustained.

6. Mr. M

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Important pointIt is not at all necessary for a conviction for murder that the corpus delicti (the dead body) be found, if as in this case, there is direct evidence of two eye witnesses that appellants (particularly appellant No. 9) killed the deceased before his body was taken away by them.

Cases Referred (13)

Important point
It is not at all necessary for a conviction for murder that the corpus delicti (the dead body) be found, if as in this case, there is direct evidence of two eye witnesses that appellants (particularly appellant No. 9) killed the deceased before his body was taken away by them.