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CASE NO.: Appeal (crl.)  620 of 2006

PETITIONER: Keshav

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 12/12/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT

CRIMINAL APPEAL NO. 620 OF 2006

S.B. SINHA

1.      The deceased Uttam Sonwale is the brother-in-law of the appellant.   His sister Sarjabai was married to the appellant.  He was a resident of village  Deulgaon, Taluka Loha in the District of Nanded.  Vimalbai is the wife of  the deceased.  The deceased had taken some loan from the appellant at the  time of the marriage of one of his sisters, Savita.  Allegedly the appellant  was demanding back a sum of Rs.50,000/- to Rs,60,000/-, from him  although the principal amount was only Rs.5,000/-.  Allegedly he did not  allow the deceased to sell even a portion of the family land for the purpose  of returning the amount of loan on the ground that his wife Sarjabai had a  share therein.   The deceased had also borrowed a sum of Rs.1,000/- from  PW-6 , Nandu Bhalke.  

2.      On 18th December, 1995 PW-6 came to the agricultural land of the  deceased, where he and his wife had been working and demanded back the  said amount of Rs.1,000/-.  Appellant and another person Gautam (original  accused No.2) also came there.  The deceased was expecting payment of  some amount of compensation from the State.  They allegedly decided to  leave for Nanded for collecting the said amount of compensation.  At about  3.00 p.m on that day they were allegedly seen together by PW-5, Taterao  Sonwale.  The deceased did not return back home.  Allegedly on 20th  December, 1995 the appellant informed the wife of the deceased that he had  killed him and asked her not to disclose the said fact to anybody. He  undertook to takeover the responsibility of cultivating her land and perform  the marriage of her daughters.  No First Information Report was lodged.  No  report was also given to the police in regard to the missing of the deceased,  Uttam Sonwale.  

3.      PW-1, Shrikant Devidasrao Bhore was a resident of Nanded.  He  came to the police station, Vazirabad at about 1.00 or 1.30 p.m. on 23rd  December, 1995 informing the Officer Incharge therein that one human  skeleton had been seen in his brother’s land.  The Investigating Officer  visited the place and allegedly saw a human skeleton, some clothes and a  post card.  He also found nearby a big stone having some blood stains.  The  skeleton was sent for post-mortem on 24th December, 1995 which was  received in the hospital at about 11.00 a.m. on 24th December, 1995.  Post- mortem examination was conducted at 10.00 a.m. on 25th December, 1995.   Except the brain matter, nothing else was found.  The post-mortem report  purported to have been seized bore the name and address of the deceased.   After the receipt of the post-mortem report, a First Information Report was  lodged on 26th December, 2005 by the Officer Incharge.         Appellant and Gautam were arrested.  At the behest of the appellant,

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recovery of a knife is said to have been made.   

4.      The learned trial court as also the High Court, on analysing the  materials brought on records by the prosecution, found the following  circumstances as against the appellant to record a judgment of conviction  against him.  (a)     Motive ; (b)     Last seen together with the deceased on 19th December, 1995 ; (c)     Extra judicial confession said to have been made before PW.3,  Vimalbai ; (d)     Discovery of bloodstained clothes from the house of the  accused. (e)     Discovery of a knife at the behest of the accused from thorny  shrubs situate near the scene of the offence.  

5.      Original accused No.2, Gautam was, however, acquitted.

6.      Only a skeleton was recovered.  Moot question, therefore,  is as to  whether within a period of 4-5 days, a dead body could be skeletonised.   There is nothing on record to show that vultures or other animals ate away  parts of the dead body.   Had that been so  the same would have been noticed  by PW-1 and his brother as well as by the Investigating Officer. At least it  would have found some mention.  All parts of the dead body including small  intestine were missing.  The dead body was lying in an open field at least for  four days.  How apparels and cloths purported to be belonging to the  deceased had been found near the dead body separately is beyond any  comprehension.  If he was killed by using a hard and blunt substance on his  head as it appears from the post-mortem report, portion of the clothes of the  deceased would still be found over the skeleton and not at a distance from it.   If the dead body was eaten away by vultures or other animals the garments  would have also been found in torn condition and beyond recognition.  In  this situation the evidence that the garments have been recognized by the  mother and wife of the deceased, for the purpose of identification of the  dead body to be that of the deceased, cannot be accepted.  

7.      The post card which was purported to have been recovered was not  marked as an exhibit.  Nobody proved the contents of the said post card.  It  is also difficult to believe that although the post card remained under open  sky for a period of at least four days in the winter season, the same was still  readable and could be found near the dead body.

8.      A judgment of conviction cannot be recorded only on the basis of  motive.  The circumstance of last seen together becomes relevant only when  the death is proved to have taken place within a short time of the accused  and the deceased being last seen.  (See State of Goa  vs.  Sanjay Thakran :  (2007) 3 SCC 755.   Matter might have different if a murder of wife is  allegedly to have been committed by a husband within the four walls of a  room which was occupied by them.

9.      It is difficult to rely upon extra judicial confession purported to have  been made by the appellant to PW-3 as ordinarily she would have disclosed  the same to her relative and lodged a first information report immediately  thereafter.  Discovery of knife at the behest of the appellant also looses  much significance as the prosecution’s case itself is that the death was  caused by inflicting an injury by a hard and blunt substance.  Discovery, in  terms of Section 27 of the Evidence Act would have been admissible in  evidence, provided the recovery was that of a fact which was relevant to  connect the same with the commission of crime.  Recovery of a weapon at  the instance of the accused which has no nexus with the cause of death of the  deceased is inadmissible in evidence.   

10.     No DNA test was conducted for the said purpose.  The Investigating  Officer even could not decipher as to whether the dead body is of a male or a  female.  No expert was examined to establish that an identification was  forensically possible.

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        11.     In HWV Cox’s Medical Jurisprudence and Toxicology a detailed  discussion has been made in regard to the time of death as also the  identification of a dead body.  According to Cox, even a depressed skull  fracture may be seen due to damage long after death, from the pressure of  stones or earth upon the body or even due to damage during or after  recovery of the skeleton.          In regard to skeletalisation of the dead-body it is stated :-

"The complete removal of soft tissues again is a very variable  process. As mentioned above, it may occur within a couple of weeks  or even few days if animal predators are unusually active.  Much  depends upon the environment- especially the temperature-and the  activity of the insects and other animals.

In temperate climates, much depends upon the time of year at  which  the person died.  In Northern Europe, a person dying in the  open country in the autumn will stand much less chance of becoming  skeletalised before the next summer than if he died in the early  months of the year with the hot weather yet to come.

As a very rough generalization, in temperate climates, a body  not subjected to much major animal predation will retain some soft  tissue for up to a year and remnants of soft tissues such as tendon tags,  periosteum and joint capsule may be visible for two to five years.   Again generalizations are so inaccurate as to be misleading.  In the  hotter climatic conditions of the tropics, skeletalisation may occur  within weeks, again mainly due to the massive removal of tissue by  insect life and larger animals.  The earliest complete skeletalisation  seen in Britain is three weeks during  a very hot summer, but there are  many reports of much more rapid skeletalisation in India."

        12.     By no norms, thus, a dead body would be skeletalised within a period  of 3-4 days.  It shall in ordinary course take atleast a few weeks.   

13.     As indicated hereinbefore the occurrence took place in the month of  December.  It cannot be said to be a hot summer days.  Even atleast a weeks’  time is necessary for a dead body to be skeletalised even during a very hot  summer.  The doctor who performed the post-mortem report did not spell  out the possible time of death.  He probably was not in a position to  determine the same.  He might not have even been called upon to do so by  the Investigating Officer.

14.     What would be the legal parameters for determination of the guilt of  the accused charged for commission of murder on the basis of circumstantial  evidence is now well settled.  [See Sharad Birdichand Sarda  vs.  State of  Maharashtra : (1984) 4 SCC 1116 ; Bodhraj  vs.  State of Jammu and  Kashmir : (2002) 8 SCC 45 and  Sanjay Thakran (supra) ].   This case in our  opinion does not satisfy the tests laid down therein.

15.     For the reasons abovementioned, the impugned judgment cannot be  sustained.  It is accordingly set aside.  The appeal is allowed.  Appellant,  who is in custody shall be released forthwith, if not required in connection  with any other case.