SANJAY RAJAK versus THE STATE OF BIHAR

Citation: [2019] 9 S.C.R. 654 · Decided: 22-07-2019 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

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Judgment (excerpt)

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SANJAY RAJAK
v.
THE STATE OF BIHAR
(Criminal Appeal No.1070 of 2017)
JULY 22, 2019
[ASHOK BHUSHAN AND  NAVIN SINHA, JJ.]
Penal Code, 1860: s.364(A) – Conviction and rigourous
imprisonment for life – Acquittal of co-accused by High Court –
Prosecution case was that the co-accused kidnapped 6 years old
child – In confessional statement, both the accused disclosed that
after kidnapping the child, they killed him and buried the corpse in
the bed of river – Both the accused were last seen  together along
with the victim – Police made no effort to make recovery of body –
Trial court convicted both the accused on circumstantial evidence
– High Court affirmed the conviction of appellant while acquitted
the co-accused – On appeal, held: The classmate of the victim
deposed that while they were standing at the gate of school, a man
with his face covered approached the victim and told him that his
father was calling him and that the victim recognized him and called
him uncle – The evidence of the parents of the victim was to the
effect that the co-accused had worked as a servant in their house
earlier and being acquainted with co-accused, the child naturally
must have gone along with him – They also deposed that a demand
for ransom was made on phone by co-accused as they could
recognize his voice – Several prosecution witnesses saw the appellant
and co-accused with the victim on the day of occurrence – Recovery
of victim’s bag was made from the house of the appellant which was
identified by the father of the victim – No explanation was offered
by the appellant about the said recoveries – In the facts and
circumstances of the case, the failure of the police to recover the
dead body was not of much consequence in the absence of any
explanation by the appellant both with regard to the victim being
last seen with him coupled with the recovery from his house of the
belongings of the deceased – Therefore, interference with order of
conviction not called for.
   [2019] 9 S.C.R. 654
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Evidence: Identification of a person – Every individual has a
distinctive style of speaking which makes identification by those
acquainted possible – Identification of a known person by voice in
darkness has been well recognized in criminal jurisprudence – Even
if a person tries to camouflage his voice in one call, given the
limitations of human nature there will be a tendency to state certain
words or sentences in an inimitable style exposing the identity – In
the instant case, High Court without considering these factors, erred
in granting acquittal opining that no recorded voice sample was
available – Criminal jurisprudence – Penal Code, 1860 – s.364(A).
Evidence: Circumstantial evidence – Corpus delicti not found
– It is not an invariable rule of criminal jurisprudence that the
failure of the police to recover the corpus delecti will render the
prosecution case doubtful entitling the accused to acquittal on
benefit of doubt – It is only one of the relevant factors to be
considered along with all other attendant facts and circumstances
to arrive at a finding based on reasonability and probability based
on normal human prudence and behavior – Penal Code, 1860 –
s.364(A).
Dismissing the appeal, the Court
HELD : 1. PW-10, aged about 8 years and a classmate of
the victim deposed that while both of them were standing at the
gate of the school at about 12 o’clock, a man with his face covered
with a napkin approached the victim and told him that his father
was calling him.  The victim addressed him as “uncle uncle”.
The man took the school bag of the child on his shoulder, fed him
ice-cream and took the victim away.  PW-11 and PW-12 the parents
of the victim deposed that the acquitted co-accused had worked
as a servant in their house earlier. In the said facts, the
significance of the victim addressing co-accused as “Uncle!
Uncle!”, cannot be lost sight of and unfortunately did not fall for
consideration by the High Court at all. [Para 5] [658-H;
659-A-C]
2. PW-11 and PW-12 deposed that co-accused had made
calls on mobile demanding ransom. Co-accused having worked
earlier in the house of the witness, there is no infirmity in their
statement of having recognised his voice.  Every individual has a
SANJAY RAJAK v. THE STATE OF BIHAR
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distinctive style of speaking which makes identification by those
acquainted possible. Identific

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