Mukund Tukaram Kamble vs The State Of Maharashtra And ...
2004 Latest Caselaw 1266 Bom

JUDGMENT

Anoop V. Mohta, J.

1. The appellant has been convicted by the Additional Sessions Judge, Thane, under Sections 366, 376 and 302 of IPC and maximum sentence to suffer rigorous imprisonment for life has been imposed apart from other connected orders. Therefore, this appeal against the conviction.

2. As per the prosecution, on 15th May, 1996 at about 8.30 p.m., the appellant/accused had kidnapped a minor girl viz. Asha Dadarao Shejwale (hereinafter the deceased) from the lawful guardian, her father Dadarao Kundlikrao Shejwale (PW-8) under the pretext that the deceased required at his house for cooking. The accused took her towards Parsik Tekdi and after committing the rape on the deceased, murdered her by strangulation. The appellant thereafter, had caused to disappear the evidence of the rape and murder, to escape himself from the legal punishment and therefore, thrown the dead body of the deceased at Parsik Tekdi. As the parents of the deceased found their daughter missing, on returning from the work, therefore, on 16th May, 1996 at about 9.00 a.m., the father of the deceased PW-8, went to the accused house situated near Nilgiri to bring back the deceased. The house was locked as on night of 15th May, 1996 itself, accused alongwith his wife and children and luggage went to his native place situated, at Sangli district. PW-8, the father, as he could not found his daughter, on 21st May, 1996, approached the Police Station, Nerul and lodged the report about missing of the deceased daughter. It was reduced in writing by the Head Constable (PW-7) and the case was registered accordingly. On 29th May, 1996, the accused was arrested. The clothes of the accused were also seized. As per prosecution, the appellant has admitted his guilt before the PW-1 Shri Suresh Mahadev Kosbe, Police Head Constable. The offence was registered at Police Station, Nerul on 29th May, 1996 under Sections 366, 376, 302 and 201 of IPC. The appellant in presence of PW-10 Yakub Beg Salim Beg Mirza as per the prosecution case, pointed out the place of incident and after visiting the same, they found the skull, bones, a pair of chappal, broken earrings, shirt, blouse at that time and the same were accordingly seized. The inquest panchanama (Exhibit-18) was prepared. The skull and bones and other materials were sent to J.J. Marg Hospital for ascertaining the sex, age and cause of death of the deceased person. The report from the Chemical Analyser was received by the police. After completion of the investigation, the charges were framed against the accused. He had denied the same and pleaded not guilty. His defence was of total denial and that the bones and skull as recovered were not belong to the deceased. She must be missing, therefore, accused had been involved in a false case.

3. Learned Judge after considering the material as well as, the prosecution's case on the record, has passed the impugned order and convicted the accused for the offences as set out above.

4. Heard learned Counsel appearing for the appellant and the learned A.P.P. for the State. We have been taken through the record of the case. Learned Advocate appearing for the appellant has also relied upon 2002(2) Mh.L.J. 867 Bandu Yedu Metkari v. State of Maharastra in support of his submissions and prayed for an acquittal. The learned A.P.P. appearing for the State has relied upon Rama Nand and Ors. v. State of Himachal Pradesh, Mani Kumar Thapa v. State of Sikkim and basically submitted to maintain the order.

4A. In the present case, there is no recovery of the dead body of the deceased. The recovery as per the prosecution case was of a skull and bones and other materials on the spot, which according to the prosecution belongs to the deceased. There is no eye witness to the incident. Therefore, the prosecution case is solely based on the circumstantial evidence. What is necessary, therefore, is to see whether the prosecution has proved beyond reasonable doubt that appellant had committed the offence. It is essential to connect the accused with the victim, scene of offence, recovery of incriminating articles and all other corroborative evidence, and that the accused has committed the offence in question. In the present case, in the absence of dead body of the deceased, it is difficult to accept the case of the prosecution that the appellant had committed the rape and thereafter, murdered the deceased by strangulation and thrown the dead body to avoid the punishment for the offences committed. There is no evidence to support all these relevant ingredients to connect the appellant with the offences in question. The scull and the bones and other materials found on the spot nowhere connect that the skull and bones found were of the deceased. The age of the deceased at the relevant time was about 10 years. The doctor's report has opined that the skull and the bones found was of a person aged 16 to 17 years. There is no evidence to show and prosecution has also failed to prove that the said skull and bones found was of the girl. The doctor's certificate or opinion nowhere supports the prosecution case that the said skull and bones as found was of the deceased. In this background, it is difficult to accept the prosecution case and of the reasonings given by the learned Judge that the appellant had committed the rape and thereafter strangulated her by throwing the body to destroy the evidence. There is no evidence to connect even this events against the appellant. There is no prosecution witness to support that the appellant had committed the rape on the deceased, strangulated her and thrown her dead body to destroy the evidence.

4B. In the present case, even we take note of the Apex Court decision of Rama Nand and Mani Kumar Thapa (supra) as relied upon by the learned A.P.P. for the State, to support the submission that in absence of corpus delicti, conviction can still be based on circumstantial evidence. There is no doubt about this proposition but what is required as per this decision itself is that there should be reliable and plausible evidence that the offence of murder like any other factum of death, if committed, it must be proved by direct or circumstantial evidence, even though the dead body could not be traced. The basic principle of Section 3 of the Evidence Act is well settled. In the present case, the position is quite different. It is not the case of non-discovery of the dead body of the victim. In the present case, there is definitely a skull and bones and other materials found on the spot of occurrence. The prosecution case is that these skull and bones and other materials were belongs to the deceased. Therefore, both these cases as cited by the prosecution are distinguishable.

5. The prosecution's burden in the present case is very heavy, to prove beyond reasonable doubt, that the skull and bones and other materials found on the spot of occurrence were belong to the deceased, and equally not of any other person. The Medical Certificate's Exhibit-36 and other Certificate, shows that the skull and the bones in question were belong to a person who was aged about 17-18 years old. In the present case, admittedly, the age of minor deceased was 10 years. There is no further prosecution evidence to show that the said skull and bones was of a girl. Therefore, these two basic elements according to us, have nowhere supported the prosecution case, that the skull and bones as found belong to the deceased. Now, if this is the positive case of the prosecution, then according to us, they fail to prove and link the appellant with commission of offence in question. We can understand that the case of the prosecution was that there is no dead body found and therefore, still a person can be convicted in view of the above Supreme Court decisions. However, in the present case, as prosecution had specific foundation to charge the appellant and as they failed to prove the same, in our view, the appellant cannot be convicted for the offence in question.

6. The skull and the bones and other material which were found was at public place. The recovery therefore as sought to be relied upon by the prosecution itself was on weak foundation.

7. We have also noted from the testimonies of the witnesses that merely because the appellant alongwith his family left his village, that itself cannot be a material circumstance to connect the appellant with the crime. We have also found that as per the prosecution, the offences were committed on 15th June, 1996 whereas the complaint was lodged by her father on 24th June, 1996 for missing of his deceased daughter. The delay in lodging the complaint also raises doubt in the prosecution case. There is no substantial material to prove that the accused had seen with the deceased lastly together. The evidence of Sunita (PW-6), wife of accused is also shaky and cannot be relied to convict the appellant for the offences as alleged by the prosecution. PW-8 Dadarao and PW-9 Kaveri have no where connect or said to be eye witness to the incident. All these witnesses are interested witnesses. There are no other independent witnesses brought on the record to support the prosecution case. The accused was also arrested on 29th May, 1996 whereas offence was alleged to have been committed on 15th May, 1996. There are various gaps in the chain of circumstances to pin-point that no one else but the accused had committed the crime in question. There is no motive proved on the record against the appellant. As per the prosecution case itself, the appellant/accused and Dadarao had good relations. The conduct and behaviour of the appellant in the present case that itself cannot be the reason to accept the prosecution case to maintain the order of conviction.

8. The prosecution has failed to prove that deceased is dead and skull and bones found belongs to the deceased. Therefore, it is difficult to accept the prosecution case of homicidal death of the deceased. The report of Anatomy, Exhibit-36 has also nowhere supported the prosecution case and disclosed the cause of death. No conviction can be passed on the basis of surmises and conjuncture. Even PW-5 could not establish that the girl who was lastly scene in the company of accused, was deceased Asha. In fact, the evidence of PW-8 Dadarao was untrustworthy. The evidence of PW-5 goes to show that the girl who had been seen alongwith the accused on 15th May, 1996 was not the daughter of PW-8. Therefore, if prosecution has failed to prove the theory of "last seen together" and if it is shaky, then it is difficult to maintain the conviction of the appellant. Even PW-8 in his evidence has nowhere supported that he had seen the deceased daughter going with the accused. There is no other witness to support the case of the prosecution including PW-8 and PW-9.

9. The evidence of police officers and other witnesses including PW-1, PW-2 and PW-10 in the circumstances referred above, nowhere supports the prosecution case as there are various doubts which dislink the circumstances to pin-point the involvement of the accused. In the present case, there is no evidence on record to show that articles which were seized from the place of incident were sent to C.A. for carrying their analysis. In these circumstances, we are of the view that Judgement and Order passed by the learned Sessions Judge, convicting the appellant under Section 302, 376 and 201 IPC is not correct. Therefore, it is quashed and set aside. There is merit in the appeal.

10. The appeal is allowed. The appellant is set at liberty forthwith, if not required in any other case.

11. We quantify the fees to be paid to the Advocate appointed for the appellant at Rs. 750/- for this appeal.