Cri.Appeal No. 117/2001
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 117 OF 2001
The State of Maharashtra
Through Public Prosecutor,
High Court, Bench at
Aurangabad. .. APPELLANT
VERSUS
1. Babu Shrawan Pawar
Age : 34 years, occu. : agri.,
2. Balu Haribhau Magar
Age : 30 years, occu. : driver
3. Ganesh Fakirrao Bawne
Age : 28 years, occu. : driver
4. Ramlal Suklal Jadhav
Age : 21 years, occu. : labourer
5. Tejendrasingh @ Banti s/o Daljit Chavan
Age : 30 years, occu. : hotel business
6. Ramesh Digambar Khore
Age : 20 years, occu.: pan stall
7. Ramrao Shamrao Jadhav
Age : 20 years, occu.: pan stall
8. Sarjerao Shravan Pawar
Age : 32 years, occu.: agri.,
9. Bhima Ramprasad Pawar
Age : 45 years, occu. : labourer
All r/o Jalna, Taluka and
District Jalna .. RESPONDENTS.
***
Mr. S.W. Mundhe, A.P.P. for the appellant/State.
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Cri.Appeal No. 117/2001
(2)
***
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
Date of reserving judgment : 24th July, 2017. Date of pronouncing judgment : 6th September, 2017. JUDGMENT : (PER SUNIL K. KOTWAL, J.)
1. This appeal is directed by the State against the judgment and order of acquittal dated 14.12.2000 passed by Additional Sessions Judge, Jalna in Sessions Case No.61/2000, acquitting accused Nos.1 to 9 of the offences punishable under Sections 120-B, 364 and 302 read with Section 34 and 201 of the Indian Penal Code (For short "I.P.C.").
2. Respondent Nos.1 to 9 are the original accused persons.
3. Shorn of unnecessary details, the prosecution case, in brief, is that at the relevant time of the occurrence accused No.1 Babu Pawar was the Councilor of the Municipal Council, Jalna as well as the President of District Association of Nomadic Tribes persons. Late Durgadas Shinde (hereinafter referred as "deceased") was resident of Ambad and he was Taluka President ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (3) of the same Association. Therefore, they had frequent occasions to meet each other for the work of Association.
4. Accused No.1 suspected that the deceased had illicit relations with his wife namely Chitra. Therefore, on 01.04.1999 accused No. 1 Babu Pawar, accused No.3 Ganesh Bawne, accused No.5 Tejendrasingh Chavan and accused No.6 Ramesh Khore hatched conspiracy to commit the murder of deceased. On the same day, they went to Ambad by white coloured Trax jeep bearing registration No. MH-21-A-9231 and reached to the residence of deceased at Ambad at about 11.00 to 11.30 a.m. On inquiry, they learnt that the deceased was not present in his house, and therefore, they left for search of deceased in the village. In inquiry, they paid visit to the Juice Centre of Raju Shinde (PW-30), who was the real brother of deceased, at about 12.00 to 12.30 p.m. On enquiry with Raju Shinde (PW-30), they came to know that Durgadas Shinde (deceased) was not available in that Juice Centre. Again at about 1.30 p.m. accused No.1 Babu Pawar enquired with Raju Shinde (PW-30) about Durgadas Shinde and at the second occasion they met Durgadas Shinde. Thereafter they left Ambad by the same white coloured Trax jeep along with deceased and one Raju Salve. Raju Salve was already informed that they intended to fetch one Durgadas ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (4) Shinde from Jalna. When they reached to Mastgad, accused No.1 Babu Pawar asked Raju Salve and one Ramesh to bring petrol. Raju Salve and Ramesh left by motorcycle to bring petrol. However, when they came back to same spot, they found that accused No.1 Babu Pawar, deceased and other persons were not present on that spot Therefore, Raju Salve returned back to Ambad. On the same day at about 10.30 p.m. Raju Salve called Raju Shinde (PW-30) on phone and enquired whether the deceased reached to the house. On the next day morning Raju Salve met Raju Shinde (PW-30) and disclosed the occurrence dated 01.04.1999 at Mastgad.
5. By that time, accused No.1 Babu Pawar and others took the deceased to the residence of accused No.1 and later on by the same jeep accused No.1 Babu Pawar, accused No.3 Ganesh Bawne, accused No.7 Ramrao Jadhav took the deceased to the Rest House at Ghanewadi Tank. In one room in the Rest House these accused assaulted deceased by handle of spade and pickax. Thereafter injured deceased was taken to Wada of accused No.8 Sarjerao Pawar situated at Kaikadi Mohalla, Jalna. Dr. Hande (PW-8) and his Compounder Rajesh Borse (PW-9) were brought to the Wada for treatment of the injured deceased. On examination, Doctor found that condition of Durgadas Shinde ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (5) was deteriorating, and therefore, he advised the accused persons to take deceased to the hospital. Subsequently, Durgadas Shinde succumbed to his injuries. Thereafter accused Nos.1 to 8 brought fuel wood from the shop of Syed Miya (PW-
11) and accused No.3 brought diesel from one Kailash Giri (PW-
22) for burning the dead body of deceased. Accused Nos.1 to 4, 7, 8 and 9 took dead body of deceased to Ramtirth Crematorium at Jalna and burnt it at about 11.00 p.m.
6. By that time, the family members of deceased started for search of the deceased who did not return to his house. The friends and relatives of deceased (PW-12, PW-13, PW-14, PW-30) went to the house of accused No.1 Babu Pawar and inquired with him whereabouts of Durgadas Shinde. That time accused No.1 Babu Pawar informed them that on previous day he left Durgadas at Bus Stand. Despite enquiry, friends and relatives of the deceased could not trace out the deceased, and therefore, at last on 05.04.1999 Raju Shinde (PW-30) lodged missing report to Police Station, Ambad which was forwarded to Kadim Jalna Police Station. Missing Case No. 10/1999 was registered at Police Station, Kadim Jalna. After receiving certain information from accused No.7 Ramrao Jadhav, who was arrested in Crime No.67/1999 for the offences punishable under ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (6) Sections 457 and 380 of I.P.C., Police Sub Inspector Raut lodged F.I.R. to Police Station, Kadim Jalna on 11.04.1999. Initially offence was registered at Police Station, Kadim Jalna under Zero number and it was forwarded to Police Station, Ambad for investigation. On the basis of the report, Crime No. 101/1999 was registered at Police Station, Ambad under Sections 363, 302 and 201 read with Section 34 of I.P.C. Investigation of this case was handed over to Local Crime Branch.
7. Accused No.1 Babu Pawar, accused No.2 Balu Magar, accused No.3 Ganesh Bawne, accused No.4 Ramlal Jadhav, accused No.5 Tejendrasingh Chavan and one another were arrested on 11.04.1999. On 12.04.1999 accused No.3 Ganesh Bawne gave disclosure statement and took Investigating Officer to Ramtirth Crematorium, Jalna. Investigating Officer seized bones and ash from the Crematorium and drew panchnama. Accused Ram Jadhav was also transferred in this crime who was in jail in connection with another crime. As per the disclosure of accused Ram Jadhav, police took search of the room at Ghanewadi Rest House and seized blood stained pieces of stick, pieces of burnt Cigar, handkerchief of deceased, scrapping of blood stains found on the floor and on the wall of that room. Clothes of accused No.1 Babu Pawar and accused Ram Jadhav ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (7) were seized. Cushion of jeep, two Asan Pattya were seized from accused No.3 Ganesh Bawne. During the course of investigation register of Anand Ashram Lodge was seized. Identification parade of accused No.1 Babu, accused No.3 Ganesh and accused No.7 Ramrao was held by Executive Magistrate Rajendrakumar Patil (PW-26). The seized muddemal articles were referred to the Chemical Analyzer for chemical examination and seized bones and ash were sent to Government Medical College, Aurangabad for examination and report. After completion of investigation, charge-sheet was submitted against all the accused in the Court of Judicial Magistrate, First Class at Ambad.
8. Offences punishable under Sections 302 and 364 of I.P.C. being exclusively triable by the Court of Sessions, this case was committed to Sessions Judge, Jalna.
9. Charge (Exh.54) was framed against accused persons for the offences punishable under Sections 120-B, 364 read with 120-B, 302 read with Section 34 and 201 read with Section 120-B of I.P.C. Charge was read over to accused. Accused pleaded not guilty and claimed trial. Defence of the accused is of total denial.
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Cri.Appeal No. 117/2001 (8)
10. Prosecution examined total 41 witnesses. After considering the oral and documentary evidence placed on record by prosecution, trial Court pleased to acquit all the accused of all the charges. Therefore, this appeal against acquittal is preferred by the State.
11. Learned A.P.P. for the State submitted that, since 1/4/1999, deceased Durgadas was missing from Ambad and he was last seen together with accused No.1. Thereafter, deceased Durgadas never came back to his residence and vanished. Our attention was drawn towards missing report (Exh.100) lodged by Raju Shinde (P.W.30), who is brother of the deceased. According to A.P.P., after arrest of the accused, as per information given by them in police custody, the bones of the deceased were seized from Crematorium, Jalna. Learned A.P.P. pointed out that, when clothes seized from the accused were sent to Chemical Analyser for examination, human blood was found over it. According to A.P.P., despite sufficient circumstantial evidence available on record, trial Court erroneously acquitted the accused.
12. None appears for the respondent.
13. This is unique case where prosecution is trying to ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (9) establish guilt of the accused without recovery of corpus delicti. However, as ruled by Apex Court in Mani Kumar Thapa V/s State of Sikkim reported in (AIR 2002 SC 2920), in a trial for murder it is neither absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of 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 a 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. Therefore, now we proceed to examine whether clinching circumstantial evidence is available against the accused persons to establish their guilt beyond reasonable doubt. The circumstantial evidence placed on record is in the form :
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Cri.Appeal No. 117/2001 (10) (1) Last seen together;
(2) Recovery of human bones from Ramtirth Crematorium in accordance with information furnished by accused No.7 Ramrao.
(3) Seizure of blood stained weapon of the offence from Ghanewadi Rest House, Jalna and seizure of blood stained handkerchief of the deceased in the same room. (4) Seizure of the blood stained clothes from the possession of accused persons as well as seizure of blood stained jeep cushion and Asanpatti from accused No.3 Ganesh. (5) Identification of accused persons by Watchman, Ghanewadi Rest House.
14. When prosecution case is based on circumstantial evidence, then definitely motive plays important role. However, as ruled by Apex Court in ManiKumar V/s State (cited supra), if the prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that it is the accused alone who could have committed the murder, the absence of motive will not hamper a safe conviction. However, as observed by Apex Court in Rama Nand & others V/s State of Himachal Pradesh reported in (AIR 1981 SC 738), where the inference of guilt of an accused person is to be drawn from circumstantial ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (11) evidence only those circumstances must in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly land to the conclusion that within all human probability, the offence was committed by the accused and none else.
15. In the case at hand, though prosecution has examined 41 witnesses, Kailash Bidade (P.W.1); Jitendra Jaiswal (P.W.2); Kakasaheb Katalay (P.W.3), Bandu Jadhav (P.W.4); Shobha Rajput (P.W.5); wife of the accused No.1 Chitra Pawar (P.W.6); Subhas Dubey (P.W.7), Dr. Sheshrao Hande (P.W.8); his sweeper Rajesh Borse (P.W.9); fuel wood seller Syed Razeq Syed Chote Miya (P.W.11); Jagdish Gupta (P.W.16); Hanuman Dhande (P.W.17); Mohd. Akbar (P.W.18); Kailash Giri (P.W.22); Syed Fakir Mohammed (P.W.23); Shamrao Sontake (P.W.24), Watchman, Ghanewadi Rest House; Pralhad Randhe (P.W.25); Raju Gude (P.W.27); Majudulla Mohd. (P.W.29); Rajesh Salve (P.W.31); Suresh Deshmukh (P.W.32); Sarwar Khan (P.W.33); Sk. Iqbal Ahmed (P.W.34); Khalid Ali (P.W.35); Gangadhar Yadav (P.W.36); Ghansingh Tak (P.W.37); Sk. Rafiq (P.W.38); Sk. Salim (P.W.39) and Ganesh Bhalerao (P.W.40) have turned hostile. In other words, all the panchas on every panchanama and ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (12) witnesses on the point of "last seen together" have not at all supported the prosecution case. Despite searching cross- examination by learned A.P.P., nothing could be elicited which is helpful to prosecution. Therefore, the only available evidence against the accused persons is of the near relatives of deceased, and police officials.
16. Nana Bapu Shinde (P.W.12) is the brother of deceased. From his testimony, it emerges that, on 1/4/1999, at about 11.00 to 11.30 a.m., accused No.1 Babu Pawar, accused No.3 Ganesh and other 3 to 4 persons visited his residence at Ambad and enquired about his brother deceased Durgadas. These accused persons came by white colour Trax Jeep. However, deceased Durgadas was not present at his residence and, therefore, accused No.1, 3 and other persons went away. Subsequently, from his brother Raju Shinde (P.W.30), this witness came to know that deceased Durgadas went away along with accused No.1 and others for "Kandori" at Dargah. However, thereafter deceased Durgadas never returned. Ambadas Shinde (P.W.13), who is brother of the deceased, came to know from Raju Shinde (P.W.30) that deceased Durgadas had gone outside along with accused No.1 Babu Pawar and other persons. Rajaram Shinde (P.W.14) is, who is one of the near relative of ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (13) deceased, has only added that, when Durgadas did not return along with other relatives, this witness enquired with accused No.1 Babu Pawar, who told that Durgadas was left at Bus Stand. However, later on, whereabouts of Durgadas could not be traced out. Yalamma Shinde (P.W.15) is the mother of deceased. She had also placed on record same happening and nothing more. Raju Shinde (P.W.30) is the only star witness, in whose presence, on 1/4/1999 at about 1.30 p.m. when accused No.1 visited the shop of this witness, that time, in presence of this witness deceased Durgadas, Pohekar, Raju Gude, Bandu Jadhav and other persons left by jeep along with accused No.1 Babu Pawar to attend the Kanduri function. According to this witness, one Raju Salve also accompanied deceased Durgadas and accused No.1 Babu Pawar in the same white colour Trax jeep. However, thereafter the deceased Durgadas never turned up. From Raju Salve, this witness learnt that, at Mastgad, accused No.1 Babu Pawar left Raju Salve and one Ramesh, and asked them to bring petrol, but when they returned back with petrol, by that time, Babu Pawar and Durgadas Shinde had already left the Mastgad. From the testimony of Raju Shinde (P.W.30), it emerges that, as deceased Durgadas did not return to Ambad, he enquired with his relatives, but could not know whereabouts of deceased Durgadas, and ultimately on 5/4/1999, he lodged ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (14) missing report (Exh.100) to Police Station, Ambad. Police Head Constable Gajanan Kayande (P.W.19) has also supported the registration of missing report at Kadim Jalna Police Station, which was forwarded by Ambad Police Station. Though Raju Shinde (P.W.30) was subjected to lengthy cross-examination, nothing could be elicited, which creates doubt regarding his testimony that on 1/4/1999 at about 1.30 p.m., deceased Durgadas left Ambad along with accused No.1 Raju Pawar and his other friends. Unfortunately, Rajesh Salve (P.W.31), who accompanied deceased in the jeep along with accused No.1 Babu, has turned hostile and he has not supported the prosecution case. Therefore, on the basis of testimony of the above referred near relatives of the deceased, prosecution can establish that on 1/4/1999, deceased Durgadas left village Ambad along with accused No.1 Babu Pawar.
17. However, only because deceased was last seen together with accused No.1, conclusion can not be drawn that accused persons committed murder of the deceased when even his dead body is not traced out. In Shegar Kaunder Vs. State of Maharashtra reported in (1999 ALL MR (Cri) 1237), this Court held that, the circumstances that deceased last seen with the accused, and the accused gave false explanation at the most ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (15) creates strong suspicion against the accused, but they are not sufficient to convict the accused. Same view was also taken by this Court in Khandu Jadhav Vs. State of Maharashtra reported in (1996(1) B.C.R. (C) 114). Thus, it is clear that, only last seen together evidence is not sufficient to establish guilt of the accused, but additional evidence is necessary to connect accused persons with the death of deceased.
18. A.S.I. Pandurang Jadhav (P.W.20) is the police officer, who only received missing report dated 5/4/1999 (Exh.100) at Police Station, Ambad and forwarded it to Police Station, Kadim Jalna. P.S.I. Sukhdev Salve (P.W.21) has only received report lodged by A.P.I. Shri Raut on1/4/1999 at Police Station, Kadim Jalna. This F.I.R. (Exh.103) was forwarded merely to Police Station, Ambad for investigation. Therefore, the evidence of these police officers is of not much help to connect the accused persons with any crime. A.P.I. Shri Raut, who lodged F.I.R. (Exh.103), is not examined by prosecution. Otherwise also, F.I.R. (Exh.103) is based on confessional statement by accused No.7 Ramrao when he was in police custody at Kadim Jalna Police Station for investigation of Crime No.67/1999 under Sections 457 and 380 of the Indian Penal Code. Therefore, this confessional statement of accused No.7 ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (16) before Police Officer in police custody is hit under Section 25 of the Evidence Act and is of no help to the prosecution to establish guilt of the accused. Shri R.B. Patil (P.W.26) is the Tahsildar, Jalna, who held test identification parade on 14/5/1999 for identification of accused No.7 Ramrao, accused No.3 Ganesh and accused No.1 Balu Pawar. However, as the identifying witnesses have turned hostile, the evidence of R.B. Patil (P.W.26) is useless piece of evidence.
19. In the circumstances, only evidence of P.S.I. Shivaji Deshmukh (P.W.41) remained to be examined. At the outset, we must make it clear that, only because this witness is police officer, his evidence cannot be viewed with suspicion. However, evidence of such police officer must be free from all infirmities. Shivaji Deshmukh (P.W.41) is the investigating officer who took over the charge on 11/4/1999. On the same day, he arrested accused No.1, accused No.3 and other 5 accused persons. According to this witness, on 12/4/1999, accused No.3 Ganesh made disclosure statement and showed him the spot where the deceased was kept and later on cremated. According to this witness, after obtaining custody of accused No.7 Ramrao, as per his disclosure statement, Ghanewadi Rest House was visited and from one room, sticks, pieces of stick, pieces of burnt cigar and ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (17) scrapping of blood stains on floor and wall were seized under seizure memo (Exh.138). He has proved the memo, statement of accused No.7 at Exh.137. According to this witness, Exh.35 is memo, statement of accused No.3 Ganesh and Exh.136 is seizure panchanama of ash and bones from Ramtirth Crematorium, Jalna. The material defect which we have noticed in this evidence is that, P.S.I. Deshmukh (P.W.41) is expected to prove exactly what disclosure statement was given by accused No.3 as well as accused No.7. While considering the scope of Section 27 of the Evidence Act, the Division Bench of this Court, in the case of Shankar Gopal Patil V/s State of Maharashtra, reported in [2000 ALL MR (Cri.) 186], ruled that, Section 27 of the Evidence act requires witness to prove in his deposition, statement of the accused, which relied upon to discover the object and the fact of accused keeping or concealing the object at a particular place. Hon'ble Supreme Court, in the case of Amitsingh Bhikamsing Thakur V/s State of Maharashtra, reported in [AIR 2007 SC 676] has summed up various requirements of Section 27 of the Evidence Act, which are reproduced as follows :
(i) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (18) mind that the provisions has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(ii) The fact must have been discovered.
(iii) The discovery must have been in consequence of
some information received from the accused and not by accused's own act.
(iv) The persons giving the information must be accused for any offence.
(v) He must be in the custody of the police officer,
(vi) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(vii) Thereupon only that portion of the information which relates to distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
20. However, P.S.I. Deshmukh (P.W.41) is not specific as to the exact statement given by accused No.3 and 7, which leads him to Ramtirth Crematorium where the dead body of the ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (19) deceased was burnt and the room at Ghanewadi Rest House where the deceased was assaulted by accused by sticks. Therefore, in view of law settled by this Court as well as Apex Court in above cited authorities, the testimony of P.S.I. Deshmukh (P.W.41) falls short to establish that as per disclosure statement of accused No.3 and 7, the bones of the deceased as well as blood stained weapon of the offence or spot where the deceased was killed, was discovered.
21. Another material defect which has come to our notice is that, P.S.I. Deshmukh (P.W.41) nowhere deposed in his evidence that the seized ash and bones from Ramtirth Crematorium were sealed. So also, he has not whispered a single word regarding proper sealing of blood stained sticks or pieces of stick or scrapping from floor and wall. This witness claims that, he seized blood stained shirt and pant from the possession of accused No.1 under seizure memo (Exh.147) and blood stained clothes from accused No.7 Ramrao under seizure memo (Exh.148). However, he has committed same mistake by not deposing that at the time of seizure of these clothes, they were properly sealed. Even carrier of the muddemal is not examined by prosecution to prove that since inception, the seized muddemal was in sealed condition till it reached to ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (20) Chemical Analyser, Aurangabad. Even forwarding letter to Chemical Analyser, Aurangabad is not filed and proved by the prosecution to ascertain which seized article is at which serial number, which is described in C.A. Report Exh.159. In the circumstances, though Chemical Analyser's report is that human blood was found on one shirt, wooden pieces, clips and tiles as well as on seat cushion cover, for lack of proper sealing of these seized articles, C.A. Report Exh.159 loses its evidentiary value, in view of Tulshiram Vs. State, reported in (1999(2) Bom.C.R.(C) 526) and Lalchand Yadav V/s State reported in [2000(5) Bom.C.R.(C) 585)], wherein it is ruled by this Court that, where the recovered articles were not immediately sealed, no value can be attached to the said recovery.
22. In the circumstances, even the circumstantial evidence placed on record in the form of recovery of incriminating articles as per disclosure statement of the accused persons, is not free from infirmity and cannot be relied upon to base the conviction.
23. Even the Medical College, Aurangabad reported that (Exh.74), the bones referred to it for examination belonged to human being of above the age of 20 years. However, its sex or ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (21) blood group cannot be detected. Admittedly, the seized bones were not referred to D.N.A. Test. Therefore, by no stretch of imagination it can be held that the seized bones from Ramtirth Crematorium, Jalna are of deceased Durgadas. No staff member from Ramtirth Crematorium, Jalna is examined by investigating officer or by the prosecution to establish that at the place from where ash and bone pieces were seized, no other person was cremated but only body of deceased Durgadas was cremated. No record is seized by investigating officer from Ramtirth Crematorium to establish that on a particular date any one of the accused visited the Ramtirth Crematorium and sought permission for cremation of dead body of male person. No witness from Ramtirth Crematorium has identified any one of the accused. Therefore, no iota of evidence is available to establish that the dead body of deceased Durgadas was secretly cremated by accused persons at Ramtirth Crematorium.
24. In the circumstances, there remain no reliable evidence on record which is sufficient to connect the accused with homicidal death of deceased Durgadas, whose corpus delicti could not be recovered. No circumstantial evidence is available, which establishes the link in between death of Durgadas Shinde and the accused persons. Learned trial Court has considered ::: Uploaded on - 07/09/2017 ::: Downloaded on - 08/09/2017 02:16:53 ::: Cri.Appeal No. 117/2001 (22) these all defects and infirmities in prosecution evidence while acquitting the accused No.1 to 9. The view taken by learned trial Court is probable view and, therefore, in this appeal, this Court cannot interfere the judgment and order of acquittal of accused No.1 to 9. This appeal being devoid of merits, deserves to be dismissed. Hence the following order :
ORDER
(i) Criminal Appeal No.117/2001 stands dismissed.
(iii) Under Section 437-A of the Code of Criminal Procedure Code, accused No.1 to 9 shall execute before the trial Court bail bonds with sureties for the amount of Rs.15,000/- (Rupees fifteen thousand) each to appear before the Supreme Court as and when notices are issued to them in respect of any proceedings filed against this judgment and the said bail bonds shall remain in force for a period of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
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