State Of Maharashtra vs Babu Shrawan Pawar And Orrs
2017 Latest Caselaw 6809 Bom

                                                    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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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.

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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 :

Cri.Appeal No. 117/2001

(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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

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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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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

Cri.Appeal No. 117/2001

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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