KESHAV versus STATE OF MAHARASHTRA

S.B. SINHA 1. The deceased Uttarn Sonwale is the brotherin-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 A 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

pp. 267–268, margin G

ofloan on the ground that his wife Sarjabai had a share therein. The deceased had also borrowed a sum ofRs. l ,000/- from PW-6, Nandu Bhalke.

p. 268

2. On 18th December, 1995 PW-6 came to the agricultural land

p. 268, margin B

of the deceased, where he and his wife had been working and demanded back the said amount ofRs.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

p. 268, margin B

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

p. 268, margin C

responsibility of cultivating her land and perform the marriage ofher daughters. No First Information Report was lodged. No report was also given to the police in regard to the missing of the deceased, Uttam Son wale.

p. 268, margin D

3 PW-I, Shrikant Devidasrao Bhore was a resident ofNanded.

p. 268, margin E

He came to the police station, Vazirabad at about 1.00 or 1.30 p.m. on 23rd December, 1995 informing the Officer lncharge 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

p. 268, margin E

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 am. on 25th December, 1995. Except the brain matter, nothing else was

p. 268, margin F

found. The post-card 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 Officer Incharge.

pp. 268–269, margin G

Appellant and Gautam were arrested. At recovery of a knife is said to have been made.

p. 269, margin A

The learned trial court as also the High materials brought on records by the prosecution, circumstances as against the appellant to record against him. (a) Motive; , (b) Last seen together with the deceased 1995; ( c) Extra judicial confession said PW.3, Vunalbai ; (d) Discovery ofbloodstained clothes accused. ( e) Discovery of a knife at the behest thorny shrubs situate near the scene of

p. 269, margin B

Original accused No.2, Gautam was,

p. 269, margin E

Only a skeleton was recovered. Moot to whether within a period of 4-5 days, skeletonised. There is nothing on record to animals ate away parts of the dead body. Had would have been noticed by PW-1 and his Investigating Officer. At least it would have parts of the dead body including small intestine body was lying in an open field at least for four cloths purported to be belonging to the deceased the dead body separately is beyond any comprehension. by using a hard and blunt substance on his head post-mortem report, portion of the clothes of be found over the skeleton and not at a distance was eaten away by vultures or other animals the garments would have also been found in tom 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, cam!Ot be accepted.

pp. 269–270, margin E

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.

p. 270, margin B

A judgment of conviction cannot be recorded only on the basis of motive. The circumstance oflast 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. Sarif ay Thakran: (2007) 3 SCC 755. Matter might have been 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.

p. 270, margin C

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 scme with the commission of crime. Recovery of a weapon at the instance of the accused which has no nexus with the ~ause of death of the deceased is inadmissible in evidence.

p. 270, margin D

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.

p. 270, margin G

In HWY 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 skeleialisation 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 temperatureand 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 riext summer than ifhe died in the early months of the year with the hot weather yet to corrie. As a very rough generalization, in temperate climates, a body not subjected to much major ammal 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."

pp. 270–271, margin H

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.

p. 271, margin F

As indicated hereinbefore the occurrence took place in the month of December. It cannot be said to be a hot summer days. E'Jen A 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.

pp. 271–272, margin G

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. C 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.

p. 272

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

p. 272