R. S. Sodhi, J ( 1 ) CRIMINAL Appeal No. 320 of 1997 has been filed by Chandrika and Criminal Appeal No. 309 of 1997 has been filed by Ravi @ Munna, both challenging the judgment and order of the learned Additional Sessions Judge dated 7th June, 1997 in Sessions Case No. 125 of 1990, holding them guilty of the offences charged while Murder Reference No. 4 of 1997 seeks confirmation of the sentence of death imposed upon Ravi @ Munna. The appeals as also the Murder Reference are being disposed of by this judgment. ( 2 ) BRIEF facts of the case are that on 21st November, 1989, Rajesh, a student of 7th class, of Govt. Boys Senior Secondary School, went to attend school but did not return. At around 8 O clock on that day there was a telephonic message at the house of Puranmal ( Public Witness -7) to the effect that Rajesh would be released upon a ransom of Rs. 1 lac being paid. Puranmal reported the aforesaid incident to the police control room where the message was received by lady constable, Vidya, who passed on the same to Police Station, Mangolpuri. The entry of this information was made in D. D. No. 23-A. Inspector Vinod Kumar (Public Witness-21) was assigned the case. However, it was only on 23rd November, 1989 that an FIR No. 493/89 was registered. On 11th December, 1989, Duleshwar (A-1) was arrested from near D-block bus stand of Mangolpuri. While in custody Duleshwar made a disclosure statement leading to the recovery of the body of Rajesh from beneath the floor in the House No. G-303, Mangolpuri alleged to be in the tenancy of the appellants. Inquest proceedings were held by the SMD, Vipul Mitra (Public Witness-13) while post mortem was conducted by Dr. L. T. Ramani (Public Witness- 1 ). ( 3 ) ON 11th December, 1989, Chunni Lal (Public Witness-17) made a statement to the effect that he had seen Rajesh on 21st November, 1989, at about 1. 00 p. m. in the company of all the three accused. On 4th January, 1990, Ram Narain, father of the deceased, produced two letters (Ex. P-1 and P-2) which were taken into possession vide Memo (Ex. P-10/a ). These letters are alleged to be from Ravi @ Munna demanding ransom. 00 p. m. in the company of all the three accused. On 4th January, 1990, Ram Narain, father of the deceased, produced two letters (Ex. P-1 and P-2) which were taken into possession vide Memo (Ex. P-10/a ). These letters are alleged to be from Ravi @ Munna demanding ransom. ( 4 ) ON 16th January, 1990, accused, Ravi @ Munna, was arrested at Gaya (Bihar ). Production warrants were obtained and he was brought to Delhi. His specimen writing was taken by the Investigating Officer for the purpose of comparison with Ex. P-1 and Ex. P-2. Accused, Chandirka, who was already in custody with Bihar police, was also brought to Delhi. After completion of investigation, the police filed challan on the basis of which the accused were sent up for trial where charges were framed under Sections 120-B IPC, 364 Indian Penal Code read with Sections 120-B IPC, 386 Indian Penal Code read with Sections 120-B Indian Penal Code and 302 Indian Penal Code read with Section 120-B IPC. The accused pleaded not guilty and sought a trial. The defence put up by the accused was that Ravi @ Munna was not arrested on 16th January, 1990, but was taken into custody at Khagariya on 7th December, 1989, and remained in custody eversince. This aspect of the defence case was put to the prosecution witness in cross-examination. Besides, evidence was led by way of defence to prove their case, in the shape of Daily Diary entry recorded by Bihar police at Khagariya, showing arrest of Ravi @ Munna on 7th December, 1989. The defence, also sought to prove, that possession of the house Nos. G-302 and G-303, Mangolpuri, at the relevant time, was not with the accused, rather Nirmala (Public Witness- 25) and Sanjay had also access to the same. After the statement of the accused under Section 313 of the Code of Criminal Procedure, prosecution once again adduced additional evidence by producing Munshi Ram (Public Witness-26) who sought to disprove the defence version regarding arrest of Ravi @ Munna. Nirmala was also brought into the witness box. ( 5 ) THE prosecution, in order to prove the case, examined as many as 26 witnesses. Nirmala was also brought into the witness box. ( 5 ) THE prosecution, in order to prove the case, examined as many as 26 witnesses. The trial court by its judgment and order dated 17th June, 1997, acquitted Duleshwar (A-1) of all charges while holding Ravi @ Munna and Chandrika guilty of offences under Sections 120-B IPC, 364 Indian Penal Code read with Sections 120-B IPC, 386 Indian Penal Code read with Section 511 Indian Penal Code and 302 Indian Penal Code read with Section 120-B Indian Penal Code and then by its order dated 1st July, 1997 sentenced Ravi @ Munna to death for entering into a conspiracy and for committing murder of Rajesh in pursuance of the said conspiracy. He was also sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2,000. 00 for having committed offence under Section 364 Indian Penal Code read with Section 120-B IPC. He was further sentenced to undergo rigorous imprisonment for five years and pay a fine of Rs. 2,000. 00 for having committed offence under Section 386 Indian Penal Code read with Section 511 Indian Penal Code and in default of payment of fine to undergo rigorous imprisonment for a further period of one year. Benefit of Section 428 Cr. P. C. was extended to him. ( 6 ) AS regards Chandrika, the learned Additional Sessions Judge sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000. 00 for entering into conspiracy of committing the murder of Rajesh and acting in pursuance to the said conspiracy. He was also sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000. 00 for having committed offence under Section 364 read with Section 120-B IPC. He was further sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2,000. 00 for committing offence under Section 386 read with Section 511 IPC. In default of payment of fine, he was to undergo rigorous imprisonment for a further period of one year. Benefit of Section 428 Indian Penal Code was extended to him as well. ( 7 ) WE have been taken through the record of the case by learned counsel for the parties. ( 8 ) MS. In default of payment of fine, he was to undergo rigorous imprisonment for a further period of one year. Benefit of Section 428 Indian Penal Code was extended to him as well. ( 7 ) WE have been taken through the record of the case by learned counsel for the parties. ( 8 ) MS. Mukta Gupta, learned counsel for State, has argued strenuously that the judgment and order of the learned Additional Sessions Judge ought to be confirmed for reasons, inter alia, that the prosecution has been able to prove its case beyond shadow of doubt and that chain of circumstances is complete in all respects which point only to one hypothesis, namely, guilt of the accused person. ( 9 ) LEARNED counsel for the State has argued that to bring home guilt of the accused, the prosecution has established that the body of the deceased was recovered from the house of the appellants, Ravi and Chandrika. For this purpose, she has referred to Public Witness-13, Shri Vipul Mitra, District Magistrate who states that : "on 11. 12. 89 I was posted as S. D. M. , Punjabi Bagh, Delhi. Obeing informed by police, I reached House No. G-303, Mangol Puri and got the dead of Rajesh son of Ram Narain disinterned. I filled inquest form which is Ex. Public Witness 13/a. It bears my signature at Point A. I sent the dead body for post-mortem to mortuary, Subzi Mandi vide application Ex. Public Witness13/b which also bears my signature. A memo of brief facts was dictated by me. The same is Ex. Public Witness 13/c. It bears my signature. The dead body was identified by Radhey Shyam and Pooran Mal. The identification memos are Ex. Public Witness 13/d and Ex. Public Witness 7/a. Both memos bear my signature. " ( 10 ) LEARNED counsel further referred to Public Witness-9, Radhey Shyam, who states that : "on 11. 12. 89 police arrested accused Duleshwar present in court in my presence. One Pooran Mal was also with us. Accused made disclosure statement to the effect that on 21. 11. 89 he kidnapped Rajesh along with other accused persons and murdered him. Said disclosure is Ex. Public Witness7/c and bears my signatures. 12. 89 police arrested accused Duleshwar present in court in my presence. One Pooran Mal was also with us. Accused made disclosure statement to the effect that on 21. 11. 89 he kidnapped Rajesh along with other accused persons and murdered him. Said disclosure is Ex. Public Witness7/c and bears my signatures. Duleshwar pointed out House No. G-303 and got recovered dead body of Rajesh from underneath the earth after digging the earth in the room and at that time SDM and police officials were also present. Dead body was seized vide memo Ex. Public Witness 7/d which also bears my signatures. Police also seized various articles like Sambal, Ex. P-7, sample earth and cement concrete Ex. P-11, school bag with copies and books, Ex. P-6, one register Ex. P-4, the broken lock, Ex. P-9, lungi in which dead body was wrapped, Ex. P-5, open cement bag Ex. P-8. All these articles were seized vido memo, Ex. Public Witness-7/e which also bears my signatures. They were sealed with the seal of V. K. One receipt of television set in the name of accused Ravi Kumar and two rent receipts were also seized vide memo Ex. Public Witness-7/f. Slip of T. V. is Ex. P-13 and rent receipts are Ex. Public Witness- 5/aandb. Pooran Mal also produced two cassettes in which voice of the accused persons had been taped which are Ex. P-14 and 15 and were seized by the police vide memo Ex. Public Witness-7/g. It also bears my signatures. " ( 11 ) THIS witness also deposes as to the recovery of the register, Ex. P-4, from House No. G-303, Mangolpuri, which contains accounts of day to day business as also two rent receipts, Ex. P- 5/a and Ex. P-5/b, together with receipt of payment for television which is Ex. P-13. ( 12 ) THIS witness in cross-examination states that : "i was joined with investigation around 2 or 2. 30 p. m. on 11. 12. 89 from F-Block, Mangol Puri. My factory was open on that day. Again said I do not remember if the factory was open or not. I met the police as I was going to factory from my house. Pooran and other persons were also present there. Ram Narain was not there. I do not know the name of the other persons who wee standing there. Duleshwar was already with police at that time. I met the police as I was going to factory from my house. Pooran and other persons were also present there. Ram Narain was not there. I do not know the name of the other persons who wee standing there. Duleshwar was already with police at that time. I do not know from where he was arrested from F-Block. . . . . . . HOUSE No. G-303 was locked when we reached there. There where residential houses on the right left and opposite side of the said house. A crowd had gathered and I do not know if any person was called to join investigation. I do not recollect if the lock of the house was seized by the police. The lock was perhaps broken open. The lock had been broken and at about the same time the Magistrate arrived. I do not remember if accused Duleshwar was in hand cuffs when the SDM arrived. The floor was broken by the police and I had also joined. The hammer for breaking the floor was brought from the neighbourhood. " ( 13 ) LEARNED counsel for the State then referred to Public Witness-7, Puranmal who also states that : "on 23. 11. 89 police recorded my statement Ex. Public Witness-7/a which bears my signatures at point A. On 11. 12. 89 police arrested accused Dullu @ Dileshwar and prepared his personal search memo which is Ex. Public Witness-7/b. Police made enquires from Duleshwar and his disclosure is Ex. Public Witness-7/c which bears my signatures. Accused Duleshwar pointed out house No. G-303 Mangolpuri and got recovered dead body of Rajesh from underneath the earth after digging the earth. I cannot say as to who had actually dug out the earth. S. D. M. was also present at that time. Police took into possession the dead body vide Ex. Public Witness-7/d. " ( 14 ) PURANMAL also deposes about the recovery of the register, Ex. P-4, vide memo Ex. Public Witness-7/e, rent receipts Ex. P-5/a, Ex. P-5/b and payment receipt for the television, Ex. P-13, which is taken into custody vide memo Ex. Public Witness-7/f from House No. G-303, Mangolpuri. ( 15 ) LEARNED counsel, for the State referred to Public Witness-21, Inspector Vinod Kumar, who states that : "the telephone, the number of which was probably 7272975 and which was of Rohini Exchange, was kept under observation. P-13, which is taken into custody vide memo Ex. Public Witness-7/f from House No. G-303, Mangolpuri. ( 15 ) LEARNED counsel, for the State referred to Public Witness-21, Inspector Vinod Kumar, who states that : "the telephone, the number of which was probably 7272975 and which was of Rohini Exchange, was kept under observation. Whatever message was being received on the said telephone was being tape recorded. The voice on the telephone was identified by Rajender Kumar as being that of accused Rajesh. We kept searching for Rajesh as he used to visit accused Duleshwar. On 11. 12. 89 accused Duleshwar, present in Court, was arrested. On interrogation he disclosed that the dead body of Rajesh had been buried under the floor in H. No. G-303, Mangolpuri. The disclosure statement Ex. Public Witness 7/c of Duleshwar was recorded. I informed Shri Vipul Mitra who was then S. D. M. Punjabi Bagh and apprised him of all the facts. He arrived at H. No. G-303, Mangolpuri. " ( 16 ) SHE further referred to Public Witness-20, Suresh Kumar, the photographer who has exhibited the photographs, Ex. Public Witness-20/a-1 to Public Witness-20/a-9. These photographs are of the recovery of the body. Learned counsel submitted that it Section 313 statement Ravi @ Munna has admitted his presence in the said, house upto November, 1989 while Chandrika admits staying there till 3rd December, 1989. Learned counsel contended that the burden of proof would shift on the accused to show how the body came to be found in the house in their possession. ( 17 ) LEARNED counsel was conscious of the fact that Duleshwar had been acquitted by the trial court. No appeal has been filed against his acquittal, and, therefore, urged that even if an appeal against the acquittal has not been filed, yet the court can consider the evidence afresh and come to a contrary conclusion. In support thereof she referred to Sunder Singh and others vs. State of Punjab, AIR 1962 SC 1211 . ( 18 ) LEARNED counsel next contended that the prosecution has been able to prove constructive and actual physical possession of house No. G-302 and G-303, Mangolpuri with Ravi and Chandrika at the relevant time. She referred to Public Witness-5, Sudershan Kumar, who let out the premises to the appellants. Ex. ( 18 ) LEARNED counsel next contended that the prosecution has been able to prove constructive and actual physical possession of house No. G-302 and G-303, Mangolpuri with Ravi and Chandrika at the relevant time. She referred to Public Witness-5, Sudershan Kumar, who let out the premises to the appellants. Ex. Public Witness-5/a is a receipt for rent for the duration 17th October, 1989 to 17th November, 1989 while Ex. Public Witness-5/b is rent receipt for the period 17th November, 1989 to 17th December, 1989. ( 19 ) IT was submitted for the State that Dr. T. L. Ramani, Public Witness-1, has indicated the time of death which he puts at about three weeks. The Doctor further found undigested food and few ground nuts and kheera seeds, which the learned counsel has argued is of no consequence since the process of, digestion varies from person to person and the type of food taken. She further submitted that the cause of death, even, if not given by the Doctor can always be inferred by the court from other circumstances. For this purpose she referred to Vasudevan vs. The State 1993 (3) Crl. L. J. 3151. ( 20 ) THE next circumstance in the chain of events, pointed out by the learned counsel, is the taped telephonic conversation of the demand of ransom, which has been deposed to by Public Witness-6, Rajinder Kumar, who states that : "i knew Munna @ Ravi for the last one year before the incident since he used to come to us and got prepared sweaters as there were business dealings. Munna demanded ransom from Shri Ram Narain on telephone and that voice was taped in a cassette. Munna had demanded ransom of Rs. 1,00,000. 00 and to bring the same at Old Delhi Railway station platform. I had heard the tape and recognised the voice of Munna. " ( 21 ) LEARNED counsel has drawn our attention to the statement of this witness where he states that the "cassette was recorded by my brother-in-law, Ram Narain. The cassette was recorded in the last week of November or in the first week of December, 1989. I do not remember the dates". From this, the learned counsel wants us to infer that the tape recording took place prior to 7th December, 1989. The cassette was recorded in the last week of November or in the first week of December, 1989. I do not remember the dates". From this, the learned counsel wants us to infer that the tape recording took place prior to 7th December, 1989. ( 22 ) PUBLIC Witness-10, Ram Narain, father of the deceased, has deposed about the demand of ransom. This has been corroborated by Public Witness-8, Puranmal, uncle of the deceased, who has handed over the cassettes to the Investigating Officer vide memo Ex. Public Witness-7/g on 11th December, 1989. Public Witness-9, Radhe Shyam, has deposed about the cassettes being taken into possession by the Investigating Officer, Public Witness-21, vide memo Ex. Public Witness-7/g. Public Witness-22, Rajinder Singh, has deposed about the transcription prepared by him from the cassettes. Public Witness-21, the investigating officer, has deposed about the recovery of the register from House No. G-303, Mangolpuri, and the hand-writing on the register that had been sent to the CFSL along with the specimen hand-writing of Ravi @ Munna taken on 29th March, 1990 in the presence of Public Witness-24, Mahinder Singh as also the admitted hand-writing on the college admission form, Ex. Public Witness-23/c, seized vide memo Ex. Public Witness-21/c and that as per the report of Public Witness-23, T. S. Nehra, the ransom note and the admitted hand-writing was similar. The learned counsel further pointed out that Ex. P-3 is the letter written by Ravi @ Munna at Pal Restaurant, Khagariya. The Hand-writing on Ex. P-3 tallies with that of Ravi and Public Witness-6, Rajinder Kumar, has identified the writing on Ex. P-1, P-2, P-3 and P-4 to be that of Ravi. ( 23 ) LEARNED counsel for the State has further referred to the statement of Public Witness-10, Ram Narain to the effect that in the first week of November, 1989 Ravi had demanded Rs. 50,000. 00 as loan which the witness had refused and had upset Ravi, which is the conduct and motive. ( 24 ) LEARNED counsel has been at pains to show that the accused were effectively represented during the trial proceedings by Mrs. Sadhna Bhatia, Advocate, who had been appointed as Amicus Curiae and that there should be no grievance of the accused on this score. The criticism, if at all, on account of summoning of witness after the recording of the 313 Cr. Sadhna Bhatia, Advocate, who had been appointed as Amicus Curiae and that there should be no grievance of the accused on this score. The criticism, if at all, on account of summoning of witness after the recording of the 313 Cr. P. C. statement of the accused has caused no prejudice to the accused and also the court was well within its right to do so in view of Section 311 Criminal Procedure Code in support whereof she has referred to Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178 . It was, therefore, submitted by learned counsel for the State that the prosecution having been able to place on record cogent evidence to bring home guilt of the accused has discharged its burden in all aspects of the case to complete the chain of circumstances, bringing home the guilt of the accused. ( 25 ) LASTLY, it was contended by the learned counsel that the sentence of death on Ravi @ Munna ought to be confirmed in view of the fact that the act of kidnapping a child of 13 years for ransom followed by murder and disposing off the body in the manner stated above is a pre-planned action of a depraved and hardened criminal. This is a case which can be termed as `rarest of the rare . She has referred to Sevaka Perumal etc. v. State of Tamil Nadu, JT 1991 (2) SC 546, to contend that while considering question of sentence, the doctrine of benefit of doubt has no play. ( 26 ) MR. Jitender Sethi, learned counsel for the appellant, has contended that the trial court has not appreciated the evidence on record and, therefore, has erred in recording the finding of conviction. He has urged that the investigation has been unfair, biased and tainted inasmuch as the evidence was created, record falsified and case fabricated to suit the prosecution story. Jitender Sethi, learned counsel for the appellant, has contended that the trial court has not appreciated the evidence on record and, therefore, has erred in recording the finding of conviction. He has urged that the investigation has been unfair, biased and tainted inasmuch as the evidence was created, record falsified and case fabricated to suit the prosecution story. ( 27 ) TO substantiate his arguments, learned counsel for the appellant has contended that the prosecution case as regards the arrest of Ravi @ Munna is a total fabrication inasmuch, as, though the prosecution claims to have arrested Ravi @ Munna on 16th January, 1989 from Gaya (Bihar) as stated by the Investigating Officer (Public Witness-21), but the fact of the matter is, that Ravi @ Munna was arrested on 7th December, 1989 at Khagariya (Bihar) and his custody was handed over by the Bihar Police to the Delhi Police. He has drawn our attention to Ex. D-1 which is the D. D entry No. 211 of Police Station, Khagariya. This document is dated 7th December, 1989 maintained at Police Station, Khagariya which reads as follows : "a copy of D. D. No. 211 dt. 7. 12. 89 maintained at PS Khagaria, 211-21/30 hours. I, S. K. Dass in charge of the police station Khagaria alongwith Lalit Kumar Singh of Delhi Police, P. S. Mangolpuri, in connection with giving assistance to the aforesaid police officer in case (FIR) No. 493/89 U/s 364 Indian Penal Code and case (FIR) No. 462/89 left for searching out accused. It is worth mentioning that accused Munna Singh alias Ravi alias Rajesh Kumar S/o Jamuna Singh R/o Vasudev Puri, PS Kotwali Munger, Distt. Munger, accused in case (FIR) No. 493/89 U/s 364 IPC, having been arrested in a dramatic manner, was handed over to S. A. N. Munshi Ram of Delhi Police who alongwith his constable has left for Delhi. " ( 28 ) LEARNED counsel for the appellant states that this fact of the accused having been arrested on 7th December, 1989, was put to the Investigating Officer (Public Witness-21) who denied the same and reiterated that Ravi @ Munna was arrested on 16th January, 1990 and produced before the Magistrate on 18th January, 1990. " ( 28 ) LEARNED counsel for the appellant states that this fact of the accused having been arrested on 7th December, 1989, was put to the Investigating Officer (Public Witness-21) who denied the same and reiterated that Ravi @ Munna was arrested on 16th January, 1990 and produced before the Magistrate on 18th January, 1990. Learned counsel for the appellant has also taken us through the cross- examination of the Investigating Officer (Public Witness-21), where he states: "i do not remember the date when I went to Bihar. I went there in December, January and March. In December, 1989 I was accompanied by Constable Ishwar Singh and one other constable. I do not remember which places of Bihar I visited in December, 1989. It is wrong to suggest that I had arrested accused Ravi and Sanjay, brother of complainant, from village Khagaria, Bihar in December, 1989. It is wrong to suggest that ASI Munshi Ram had also gone with me. It is wrong to suggest that accused Ravi was detained at Delhi till 16th January,990 or that he was taken to Bihar on that date and formally arrested the after obtaining production warrant. I do not know if news about the arrest of accused Ravi was published in newspaper in Bihar on 9. 12. 89. " ( 29 ) SI Munshi Ram (Public Witness-26) states that : "in the year 1989 I was posted as ASI in Spl. staff, North West District, Delhi. On 5. 12. 89 I had left Delhi for Khagariya alongwith two constables and one Sanjay, the CHACHA of Rajesh. We had gone there to arrest accused Munna. We had stayed in Pal Restaurant in Khagariya. The manager of the restaurant gave to Sanjay a letter which had been delivered to him by a rikshaw puller. I had gone through the contents of the letter. The letter is Ex. P-3. The rikshaw puller was still standing outside the restaurant. I and two constables were all in civil clothes. We engaged the said rikshaw puller and one other rikshaw. We requested the rikshaw puller to take us to the person who had given the letter to him for delivery at the restaurant. The rikshaw puller said that he recognized the said person but did not know his name. I and two constables were all in civil clothes. We engaged the said rikshaw puller and one other rikshaw. We requested the rikshaw puller to take us to the person who had given the letter to him for delivery at the restaurant. The rikshaw puller said that he recognized the said person but did not know his name. We had gone to a distance of about 500 yards when the rikshaw puller pointed to accused Munna who was standing at a Khokha of paan. Both constables over powered accused, Munna, present in court. Sanjay identified him. We took accused Munna to the police station at Khagariya. On interrogation accused Munna disclosed that he could get his companions arrested from Delhi. He also stated that he was illiterate and that he had not committed the crime. I gave telephonic message to SHO Mangol Puri. On 7. 12. 89 we left for Delhi by train alongwith Munna. I had reposed faith in Munna but he slipped away during the night. " ( 30 ) HE further states that :- "i was sent to Khagriya in connection with investigation of FIR No. 493/89, Mangolpuri. I had made entry of arrival at the local police station at Khagariya. I did not record the statement of the Manager of Pal Restaurant or the rikshaw puller who had pointed to the accused. I did not prepare personal search memo when I apprehended the accused. Accused Munna was not kept in the look up at Khagariya. It is wrong to suggest that the custody of Munna was given to me on 7. 12. 89 by the police of P. S. Khagariya. The accused slipped away some where near Mugal Sarai. I do not know that there is a police station of GRP at every railway station. I did not make any report at the police station at Mugal Sarai regarding the escape of the accused. Sanjay was with us during the to and fro journey. I did not lodge any report at any police station in Delhi regarding the escape of accused Munna. Vol. I had informed the Senior Officers. My statement was not recorded by the IO. " ( 31 ) IT may be noticed that this witness, Public Witness-26, Munshi Ram, was produced after the recording of the statement of the accused under Section 313 Cr. Vol. I had informed the Senior Officers. My statement was not recorded by the IO. " ( 31 ) IT may be noticed that this witness, Public Witness-26, Munshi Ram, was produced after the recording of the statement of the accused under Section 313 Cr. P. C. Had Ravi @ Munna escaped from custody on 7th December, 1989, Munshi Ram (Public Witness-26) would have taken recourse to legal procedure for seeking his arrest. But nothing has been brought on record in this regard. This clearly shows that there was no escape from custody. Munshi Ram was suspended for negligence and later reinstated, as stated by him, the order suspending him has been withheld. The order would have given reasons for the suspension, if at all. Further, the superior officer to whom Munshi Ram had reported the incident of escape of Ravi @ Munna has not been examined nor has any member of the arresting party which went to Khagariya and took Ravi @ Munna into custody been examined. The withholding of material evidence must give benefit to the accused. ( 32 ) NEXT, it was contended by learned counsel for the appellant that the evidence of Chunni Lal which was pressed into service to establish the last seen theory is most unreliable the same was a deliberate introduction, which smacks of unfairness on the part of prosecution. Chunni Lal (Public Witness-17) had stated: "i had seen Rajesh for the last time on 21. 11. 89 at about 1 p. m. while he was in the company of all the three accused present in court in the gali. " "my statement was recorded on the day when the dead body was recovered. " ( 33 ) HE further states : "even before the recovery of dead body Ram Narain had met me and he had told me that his son was missing. I had told Ram Narain that I had seen his son in the company of the accused persons. Ram Narain did not take me to Police Station for having my statement recorded. " ( 34 ) HE also invited our attention to the statement of DW-1 to show that it was not possible for Chunni Lal to have seen Rajesh in the company of the accused persons on 21st November, 1989 at about 1. Ram Narain did not take me to Police Station for having my statement recorded. " ( 34 ) HE also invited our attention to the statement of DW-1 to show that it was not possible for Chunni Lal to have seen Rajesh in the company of the accused persons on 21st November, 1989 at about 1. 00 p. m. The statement of DW-1 to the extent it is relevant reads as follows : "i have brought the admission register for the period 9. 5. 84 to 12. 4. 88. Rajesh Kumar s/o Ram Narayan was admitted to class 6th `h on 9. 4. 88 vide admission No. 1021. The date of birth of Rajesh Kumar as per record was 3. 9. 77. I have also brought the attendance register of Class 7th B for November, 1989. As per this register Rajesh Kumar was present in first meeting as well as second meeting on 21. 11. 89. It was election holiday on 22. 11. 89. The school timings for boys was from 1. 00 p. m. to 6. 00 p. m. " ( 35 ) FROM the above, it is clear that Chunni Lal is a proped up witness with no credibility, and his statement stands belied by documentary evidence. ( 36 ) LEARNED counsel has further contended that it was essential to prove "homicidal death" before conviction under Section 302 Indian Penal Code can be recorded. He has drawn our attention to Public Witness-1, Dr. L. T. Ramani, who performed the post mortem. He stated : "in my opinion no definite opinion can be given regarding cause of death as Ex. 1 and P-2 (Viscera and Blood) show negative test of common poison, there was no obvious external injury on the body and body was in advance stage of decomposition. " "there was no obvious external injury mark or violence anywhere on the body. ( 37 ) INTERNAL examination reveals as follows:- "scalp tissues were decomposed. Scale bones were intact. Brain was liquefied and was grey in colour. Net structures were decomposed. Hybid bone and thyroid cartilage were intact/tracheal Mucosa was decomposed. Rears were intact. Lungs and heart were decomposed. Stomach contained about 2 oz. of semi digested food. Few ground nuts and some seeds resembling kheera seeds to be identified in the stomach contents. No typical smell was detected in the stomach contents. Other abdominal organs were decomposed. Hybid bone and thyroid cartilage were intact/tracheal Mucosa was decomposed. Rears were intact. Lungs and heart were decomposed. Stomach contained about 2 oz. of semi digested food. Few ground nuts and some seeds resembling kheera seeds to be identified in the stomach contents. No typical smell was detected in the stomach contents. Other abdominal organs were decomposed. " ( 38 ) THUS it is clear that the Doctor was unable to give any opinion with regard to the cause of death. He should have sent the body to an Anatomy expert. The accused cannot be made to suffer because of that omission on the part of the Doctor. If there is any gap or lacuna in the prosecution evidence, the accused and not the prosecution would be entitled to get benefit of that. ( 39 ) LEARNED counsel has contended that there is no evidence on record to show as to at what point of time the body was buried, if at all, in the house and that there is no evidence to show that this act was done by the accused. There is also no evidence to show that the appellants were in physical possession of the house at the time when the body was buried therein. He states that for the purpose of showing possession, the prosecution has relied upon the rent receipts (Ex. P-5/a and Ex. P-5/b ). These rent receipts have been deposed to by Sudarshan Kumar (Public Witness-5) who states : "i am owner of house No. G-302 and 303 Mangolpuri. On 18. 10. 89 I let out both the houses to Ravi and Chandrika, accused present in court, on rent. I issued rent receipts Ex. Public Witness 5/a and Ex. Public Witness 5/b in respect of the rent received from the said accused persons. Both the receipts are in my hand and bears my signatures. I gave these receipts to both the said accused. The accused then disappeared. No rent receipt was issued in December 89. " ( 40 ) HE points out that no counterfoils have been produced nor is there any evidence on record to show that there was a practice of issuing rent receipts in the normal course of letting out, either prior, to letting out to the accused or subsequent thereto. No rent receipt was issued in December 89. " ( 40 ) HE points out that no counterfoils have been produced nor is there any evidence on record to show that there was a practice of issuing rent receipts in the normal course of letting out, either prior, to letting out to the accused or subsequent thereto. Neighbours have not been produced to show that the appellants were in possession of the house in question at the relevant time. I was pointed out that these houses are built on 25 yards plot in a high density population area. Even otherwise there is nothing to show, which, of the accused was in possession of House No. G-303 as there are two houses, namely G-302 and G-303. Therefore, except for Public Witness-5/a and Public Witness-5/b which are the purported rent receipts, there is no other evidence to establish that the appellants were in possession of the premises at the time when the body was placed under the floor of the premises G-303, Mangolpuri. The rent receipts cannot establish that the appellants remained in possession of the house till December, 1989. The landlord (Public Witness-5) does not say that he had actually seen the appellants during the months of November, 1989 and December, 1989 in the premises in question. ( 41 ) IT may not be out of place here to mention that Duleshwar has been acquitted and no appeal has been preferred against his acquittal. It was at his pointing out that the body was recovered. His presence having been disbelieved by the trial court, leaves a void as to how the prosecution came to recover the body from house No. G-303, Mangolpuri on 11th December, 1989. ( 42 ) THOUGH it is admitted that accused-Chandrika stayed in house No. G-302 and G-303, Mangolpuri, till 3rd December, 1989 and Ravi @ Munna had left sometime in November, 1989, no evidence has been adduced by the prosecution to show that the appellants stayed in the houses in question after the said dates. Besides, mere recovery of the stray articles from the premises in question cannot lead to the inference of possession of the appellants at the relevant time. Besides, mere recovery of the stray articles from the premises in question cannot lead to the inference of possession of the appellants at the relevant time. ( 43 ) IN this case Duleshwar, having been acquitted, and the manner in which the recovery has been affected throws considerable doubt on the factum of recovery of the body from House No. G- 303, Mangolpuri. We may also point out here that there is no charge framed and no conviction recorded for offence under Section 201 IPC. (See Sukhvinder Singh and others vs. State of Punjab 1994 0 SCC (Cr) 1376 ). ( 44 ) LEARNED counsel has further contended that no sane person would keep a dead body in his house buried and also live in the same house. Another aspect of the matter to which our attention has been drawn is the fact that the purported disclosure statement of Duleshwar (Ex. Public Witness-7c) was recorded at House No. G-303, Mangolpuri. This is stated by Public Witness-7, who states as follows : "disclosure statement of Duleshwar Ex. Public Witness7/c was recorded at G-303. I do not remember if police had called anybody from the nearby houses before recording the disclosure. Before breaking the lock of House No. G-303 disclosure of Duleshwar was recorded. I do not remember if police inquired from any neighbours as to the owner/occupier of House No. G-303. I cannot give the make of the lock which was broken nor can I say whether it was of brass or iron nor the shape nor the item with which it was broken. That item was procured from some nearby place but I cannot say from where nor I can say who brought the same. " ( 45 ) FROM the above statement it appears to us that the Police already knew the place where the body was lying and that the disclosure statement itself was nothing more than an eye-wash, therefore, the recovery of the body from House No. G-303, is doubtful. ( 46 ) ANOTHER aspect of the matter which was brought out in the application dated 3rd March, 1997 by the accused, Ravi @ Munna and highlighted by the learned counsel for the accused, is that the keys of the house were given to Nirmala (Public Witness-25) and Sanjay who were at that time residing with him. The said application forms part of 313 statement. The said application forms part of 313 statement. It was submitted that the prosecution has not cared to controvert the same and, therefore, ought to be taken as correct. This, we are afraid, is not correct appreciation of law. A defence, if taken, must be proved. Mere ipse dixit cannot be a substitute. ( 47 ) LEARNED counsel has drawn our attention to Ex. Public Witness-15/a, which is a report of the crime team which assisted in the investigation. The report mentions articles seized by the Investigating Officer, namely one school bag of the deceased with books and note books, cement bag, mortar of newly constructed floor, mortar of the old floor, chappals of the deceased and ransom letters. Emphasis at this point is made on the ransom letter. He has contended that the seizure memo (Public Witness-7/e) prepared by the Investigating Officer makes no mention of this item, namely, the ransom note. The absence of the ransom letter in the Investigating Officer s recovery Memo is deliberate as the original ransom letter, has willfully been, withheld, so as to substitute it at a later point of time and also no investigation was made as to whom it was addressed and by whom that ransom letter was written. The Investigating Officer, deliberately, did not pick up finger prints from the premises and this has lead to an unfair investigation. He has also, strenuously, argued that even the diggning of the floor, to place the body under ground, has not been noticed by the neighbours in the locality, which is a thickly populated one having small house of 25 sq. yards with adjacent walls joining each other. From the recovery memos there is nothing to show that there was any wool, for knitting sweaters or any other article which suggests the physical and exclusive possession of the appellant at the relevant time. On the contrary, the absence of these articles suggests that the appellants were not, in fact, in physical and exclusive possession of the House No. G-302 and G-303, Mangolpuri at the time of placing the body nor at the time of recovery. ( 48 ) THE next point of attack by learned counsel for the appellant is the recovery of letters Ex. Public Witness-1, Public Witness-2 and Public Witness-3) as also the audio cassettes (Ex. P-14 and P-15 ). ( 48 ) THE next point of attack by learned counsel for the appellant is the recovery of letters Ex. Public Witness-1, Public Witness-2 and Public Witness-3) as also the audio cassettes (Ex. P-14 and P-15 ). Learned counsel has contended that if the accused, Ravi @ Munna, was in police custody on 7th December, 1989 till 16th January, 1990 and letters received by Public Witness-10 on 16th December, 1989 and 8th January, 1990 which letters were handed over to Public Witness-12 only on 8th January, 1990 for the first time, would coincide with the period during which the accused was in custody. He argued that no worthwhile explanation has come from Public Witness-10, who had received the first, so-called, ransom note on 16th December, 1989, for not handing it to the Investigating Officer on that day. This was probably the only relevant material at that time. The case put up by the accused in his 313 statement, as also the application dated 3rd March, 1997 is that he was kept by the Delhi Police in a secluded place, where he was made to write several letters over and over again, at the instance of the police as also the complainant and, therefore, finally letters Ex. P-1, Ex. P-2 and Ex. P-3 were created as evidence against him to implicate him in the present case. He contended that since the defence has proved that the appellant, Ravi @ Munna, was in their custody from 7th December, 1989 till 16th January, 1990, the letters (Ex. P-1, P-2 and P-3) as also Ex. P-4, cannot be taken into consideration as incriminating evidence against the appellants. ( 49 ) THE examination of Munshi Ram (Public Witness-26) after the closure of the defence case does not carry the prosecution s case any further, for the reason, that the prosecution s case, as brought out by the Investigating Officer, would then stand contradicted. The Investigating Officer had been put the question regarding arrest of the appellant, Ravi @ Munna, on 7th December, 1989 which the Investigating Officer firmly denied. Therefore, the explanation given by Munshi Ram (Public Witness-26) cannot buttress the prosecution case. The Investigating Officer had been put the question regarding arrest of the appellant, Ravi @ Munna, on 7th December, 1989 which the Investigating Officer firmly denied. Therefore, the explanation given by Munshi Ram (Public Witness-26) cannot buttress the prosecution case. In any event of the matter, once the defence has been able to establish from the daily diary entries of the Bihar Police that custody was given to the Delhi Police on 7th December, 1989 which fact has been withheld by the Investigating Officer, cannot be allowed to be rebutted by way of filling up lacunas in the prosecution s case with the introduction of Munshi Ram (Public Witness-26 ). Such an attempt would be grossly unfair to the accused and, therefore, ought not to have been allowed specially when Munshi Ram was neither cited as a witness nor any statement was recorded under Section 161 Cr. P. C. ( 50 ) ANOTHER aspect to which our attention has been drawn is Ex. Public Witness-3, which is stated to be another letter by the accused, Ravi @ Munna. The prosecution apparently has not been able to show as to who gave Ex. Public Witness-3 to the Investigating Officer. It is only Public Witness-26, Munshi Ram, who mentions that Ex. P-3 was given to him by the Manager of Pal Restaurant at Khagariya. Surprisingly, there is no Seizure memo prepared nor has the statement of the Manger of Pal Restaurant been recorded during investigation. As a matter of fact, this does not find mention in the charge-sheet under Section 173 Cr. P. C.