Case: State of Uttar Pradesh Vs. Mahipal

get the property in any manner. In fact, the High Court went on to hold that the accused respondent would have got the property only if the entire line of the descendants is to be wiped out.So far as the recovery of the SIM card from one of the rooms of the house of the accused respondent is concerned, the High Court thought it proper to pay regard to the fact that the said SIM card did not belong to the accused respondent.Insofar as the recovery of dead-bodies of two children are concerned, the High Court relied on the evidence of PW-3 - Sher Singh to the effect that the recovery memo was not read out to him. The High Court further took the view that the prosecution case of ransom calls on 11th January, 2013 did not appear to be logical in a situation where the two children were already dead on 9th January, 2013. The High Court also took into account certain statements made by the witnesses with regard to Police torture of the accused respondent to arrive at the conclusion that the statement leading to the recovery was obtained under duress and, therefore, ought not to have been relied on. 8. We have considered the matter. We have taken note of the evidence of PWs-1, 3 and 5 (Panch witnesses) and also the evidence of the Investigating Officer. We have read and considered the statement of the accused respondent recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."). 9. Whether the accused respondent would have inherited the property following the death of the children is an issue that was not raised by the prosecution in the trial against the accused respondent. The specific case of the prosecution, in fact, was that because of the bequeathing of the property in favour of Sushila, the grandmother of the deceased children, the accused respondent had entertained a strong grudge against the family and the act of disappearance of the children and their death was to wreck vengeance on the family. Motive for the crime, therefore, appears to have been proved and established against the accused respondent on the testimony of PW-1 who has categorically stated about the said fact.10. So far as the recovery of the SIM card is concerned, the learned counsel for the accused respondent has vehemently urged that the prosecution has not proved the call details in respect of Mobile No.7895848163. That apart, the fact that the number of the mobile was written on the SIM card is something which cannot be accepted. 11. We have considered the said argument advanced by the learned counsel for the accused respondent. PW-1 is clear and categorical in asserting that several phone-calls were received from the aforesaid Mobile No.7895848163 demanding ransom and conveying instructions from time to time. It is on that basis that suspicion of the complainant(s) and family members with regard to the involvement of the accused respondent was raised which was duly intimated to the Police. The fact that the SIM card did not belong to the accused respondent, a fact relied upon by the High Court in coming to its impugned finding, in our considered view, is altogether irrelevant. What is relevant is that the SIM card was recovered from one of the rooms of the house of the accused respondent with regard to which he failed to offer any satisfactory explanation. Proof of calls from a Mobile phone can be established on the basis of oral evidence if such oral evidence is to be accepted by the Court. In the present case, we find no reason to disbelieve PW-1 with regard to the receipt of phone calls from the aforesaid Mobile No.7895848163.12. Insofar as the recovery of the dead bodies of the two children are concerned, we have perused the evidence of Pws-1, 3 and 5. All the witnesses in their examination-in-chief have categorically stated that the recovery memo was prepared on the spot and that they have signed it voluntarily. A different version appearing in the cross-examination of PW-1 and PW-3 cannot detract from what was deposed by the aforesaid witnesses in their examination-in-chief. If the dead bodies are recovered from three feet (3 ft.) under the earth from the compound of the house of the accused respondent, the accused respondent cannot afford to remain silent. No explanation is forthcoming in the statement of the accused recorded under Section 313 Cr.P.C.13. The fact that ransom calls were made after 9th January, 2013 on which date the two children murdered, as it now appears, will make no significant change to the situation. Making of ransom calls after the person abducted is put to death is a common feature in cases of the kind the Court is confronted with. The aforesaid fact cannot certainly go to the benefit of the accused respondent. The finding of the High Court with regard to torture of the accused respondent leading to his consequential statement resulting in the recovery of the dead bodies of the children cannot have our approval inasmuch as it is the prosecution case that the accused had been arrested on 22nd January, 2013 and the recoveries were made on the same day. That apart, at no point of time, including in his statement under Section 313 Cr.P.C., the accused respondent had even whispered about any Police torture leading to the making of the statement resulting in recovery of the dead bodies of the children.14. For the aforesaid reasons, we cannot concur with the views expressed by the High Court in the order under challenge. Rather, we are of the view that it is the trial Court which was correct in convicting the accused respondent, inter alia, under Section 302 IPC. We, accordingly, affirm the aforesaid conviction but alter the sentence of death to one of life imprisonment as the present, in our considered view, is not one of rarest of the rare cases for invocation of the death penalty.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. Whether the accused respondent would have inherited the property following the death of the children is an issue that was not raised by the prosecution in the trial against the accused respondent. The specific case of the prosecution, in fact, was that because of the bequeathing of the property in favour of Sushila, the grandmother of the deceased children, the accused respondent had entertained a strong grudge against the family and the act of disappearance of the children and their death was to wreck vengeance on the family. Motive for the crime, therefore, appears to have been proved and established against the accused respondent on the testimony ofwho has categorically stated about the said fact.So far as the recovery of the SIM card is concerned, the learned counsel for the accused respondent has vehemently urged that the prosecution has not proved the call details in respect of Mobile No.7895848163. That apart, the fact that the number of the mobile was written on the SIM card is something which cannot be accepted.We have considered the said argument advanced by the learned counsel for the accused respondent.is clear and categorical in asserting that severalwere received from the aforesaid Mobile No.7895848163 demanding ransom and conveying instructions from time to time. It is on that basis that suspicion of the complainant(s) and family members with regard to the involvement of the accused respondent was raised which was duly intimated to the Police. The fact that the SIM card did not belong to the accused respondent, a fact relied upon by the High Court in coming to its impugned finding, in our considered view, is altogether irrelevant. What is relevant is that the SIM card was recovered from one of the rooms of the house of the accused respondent with regard to which he failed to offer any satisfactory explanation. Proof of calls from a Mobile phone can be established on the basis of oral evidence if such oral evidence is to be accepted by the Court. In the present case, we find no reason to disbelievewith regard to the receipt of phone calls from the aforesaid Mobile No.7895848163.12. Insofar as the recovery of the dead bodies of the two children are concerned, we have perused the evidence of3 and 5. All the witnesses in theirhave categorically stated that the recovery memo was prepared on the spot and that they have signed it voluntarily. A different version appearing in thecannot detract from what was deposed by the aforesaid witnesses in theirIf the dead bodies are recovered from three feet (3 ft.) under the earth from the compound of the house of the accused respondent, the accused respondent cannot afford to remain silent. No explanation is forthcoming in the statement of the accused recorded under Section 313 Cr.P.C.13. The fact that ransom calls were made after 9th January, 2013 on which date the two children murdered, as it now appears, will make no significant change to the situation. Making of ransom calls after the person abducted is put to death is a common feature in cases of the kind the Court is confronted with. The aforesaid fact cannot certainly go to the benefit of the accused respondent. The finding of the High Court with regard to torture of the accused respondent leading to his consequential statement resulting in the recovery of the dead bodies of the children cannot have our approval inasmuch as it is the prosecution case that the accused had been arrested on 22nd January, 2013 and the recoveries were made on the same day. That apart, at no point of time, including in his statement under Section 313 Cr.P.C., the accused respondent had even whispered about any Police torture leading to the making of the statement resulting in recovery of the dead bodies of the children.14. For the aforesaid reasons, we cannot concur with the views expressed by the High Court in the order under challenge. Rather, we are of the view that it is the trial Court which was correct in convicting the accused respondent, inter alia, under Section 302accordingly, affirm the aforesaid conviction but alter the sentence of death to one of life imprisonment as the present, in our considered view, is not one of rarest of the rare cases for invocation of the death penalty.