Dinesh Son Of Ramraj Yadav vs The State Of Maharashtra on 1 October, 2010

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                    
                      NAGPUR BENCH : NAGPUR

                 Criminal Appeal No.130 of 2004




                                            
                              With
                 Criminal Appeal No.343 of 2004
                              With
                 Criminal Appeal No.403 of 2004




                                           
     [A} Criminal Appeal No.130 of 2004 :

     Dinesh son of Ramraj Yadav,
     aged about 19 years,




                                
     resident of Naik Nagar,
     Nagpur.                                 ....           Appellant.
                   ig        Versus
                                                            [In Jail]
                 
     The State of Maharashtra,
     through P.S.O.,
     Sitabuldi, Nagpur.                      ....          Respondent.
      


                                 *****
   



     Mr. R.M. Daga, Adv., for the appellant.

     Mr. V.A. Thakre,    Addl.     Public    Prosecutor            for      the
     respondent.





                             *****



     [B} Criminal Appeal No.343 of 2004 :





     Ajay alias Rajesh son of
     Shivprasad Sakhare,
     aged about 26 years,
     resident of Chinchbhavan,
     Nagpur.                                 ....           Appellant.
                                                            [In Jail]

                             Versus




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     The State of Maharashtra,




                                                                     
     through P.S.O.,
     Sitabuldi, Nagpur.                       ....          Respondent.




                                             
                                 *****

     Mr. R.M. Daga, Adv., for the appellant.




                                            
     Mr. V.A. Thakre,    Addl.     Public     Prosecutor            for      the
     respondent.
                             *****




                                
     [A} Criminal Appeal No.403 of 2004 :

     The State of Maharashtra,
                  
     through Police Station
     Officer, Police Station,
     Sitabuldi,
                 
     Nagpur.                                  ....           Appellant.
                                                             [In Jail]

                             Versus
      


     Ajay alias Rajesh son of
   



     Shivprasad Sakhare,
     aged about 26 years,
     resident of Chinchbhavan,
     Nagpur.                                  ....          Respondent.





                                 *****

     Mr. V.A. Thakre,    Addl.     Public     Prosecutor            for      the
     Appellant.





     Mr. R.M. Daga, Adv., for the respondent.

                             *****

                                 CORAM   :     A.H. JOSHI AND
                                               P.B. VARALE,JJ.

Reserved on : 14th Sept. 2010.

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Pronounced on : 01st October, 2010.

ORAL JUDGMENT [Per A.H. Joshi, J.]:

1. Criminal Appeal Nos. 130 of 2004 and 343 of 2004

are filed by two different accused-appellants against the

order of conviction and sentence.

Criminal Appeal No. 403 of 2004 is filed by the

State for enhancement of sentence awarded to accused Ajay

alias Rajesh Shivprasad Sakhare through the impugned

judgment.

2. Ajay and Dinesh are Accused Nos.1 and 2

respectively. The Accused No.1 Ajay alias Rajesh was

charged for the murder of Rakesh Dattaji Chavan.

Both the accused were further charged for

intentionally destroying the evidence of murder committed

by accused no.1 by disposing of the corpse of Rakesh after

cutting it into pieces, shoving those into the gunny bag

and the suitcase, and throwing the same in the public

place.

3. It is alleged that Accused No.1 murdered Rakesh

Dattaji Chavan, aged 30 years, by assaulting him by a

wooden rafter, knife and Sattoor etc., and in order to

screen the evidence, cut the head from body, cut the body

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into pieces, shoved those into polythene bags and into a

gunny bag and disposed of the bags by throwing near Zansi

Rani Square, and destroyed or otherwise disposed of some of

the body parts, which could never be traced.

4. Prosecution has examined in all 23 witnesses.

5. PW 7 Sau. Pushpabai Mahadeorao Bilulkar is cited

as eye-witness.

6.

Classification of other witnesses is as follows:-

[a] PW 1 Dattaji Ajabrao Chavan and PW 2
Ashabai Dattaji Chavan are the father
and mother of deceased respectively. PW
2 Ashabai Chavan has lodged the

complaint. They are examined to prove

that deceased had disappeared from a
particular date.

[b] PW 3 Warulu Wadku Kosare is examined

to prove that he has sharpened Sattoor
and delivered to police Sattoor which
was brought back to him by the accused.

[c] PW 4 Megha Chandrabhanji Shende, PW 5
Vinod Krushnaji Kangale and PW 6
Amol Rameshrao Umare are examined to
prove the circumstance of their having
seen the accused in the company of
deceased immediately prior to

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disappearance of the deceased.

[d] PW 8 Mahesh Rasumal Lakhani and PW 9

Ajay Vijayrao Chakradhare are the
shopkeepers who have sold polythene bag
and gunny bags respectively to the
accused.

[e] PW 10 Jayant Vasantrao Raich has
witnessed a quarrel between the accused
and the deceased.

[f]
PW 12 Premchand Suryadeo Chaudhari
the auto rickshaw driver who took the
is

gunny bag from the residence of the

accused to the place where it was thrown
for disposal.

[g] PW 13 Raju Sampat Patel, PW 18 Abdul
Rashid Mohd. Sujan Sheikh and PW 22

Madhao Vithobaji Kale are Panch
witnesses of Spot Panchanama, Seizure
Memorandum, Inquest etc.

[h] PW 14 Ajabrao Shriram Fulzele has
registered the missing report.

[i] PW 15 Dr. Suresh Shyamrao Dhakate is

the Radiologist who has given an opinion
about the age of the deceased.

[j] PW 23 Gulabrao Shriram Mahalle is the
Investigating Officer.

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[k] PW 16 Dr. Rajratna Tryambak Waghmare

and PW 17 Dr. Pradeep Gangadhar Dixit
collected sample of DNA and conducted

Post-mortem respectively.

7. Other witnesses are not significant.

8. In the background of evidence of all this, the

learned Trial Judge found Accused No.1 Ajay alias Rajesh

S. Sakhare guilty for offence punishable under Section :-

[a] 302 of Indian Penal Code, and convicted
and sentenced him to undergo imprisonment
for life and a fine of Rs.1000/-, in

default, rigorous imprisonment for one
year; and,

[b] 201 read with Section 34 of Indian Penal
Code, and convicted and sentenced to

undergo Rigorous Imprisonment for five
years and a fine of Rs.500/-, in default,
Rigorous Imprisonment for six months.

As far as Accused No.2 Dinesh Ramraj Yadav is

concerned, the learned Trial Court held him guilty for

offence punishable under Section 201 read with Section 34

of Indian Penal Code, and convicted and sentenced him to

suffer Rigorous Imprisonment for three years and to pay a

fine Rs.500/-, in default, Rigorous Imprisonment for six

months.

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9. Heard learned Adv. Mr. R.M. Daga, Amicus Curiae,

for the appellants and learned APP Mr. V.A. Thakre for the

State.

10. Learned Adv. Mr. Daga has advanced submissions,

stating that the evidence has to be separated into that of

eye-witnesses and circumstantial evidence.

11.

has assailed

Criticizing

the
the

testimony
eye-witness,

of eye-witness
the learned

PW
Adv.,

7

Pushpabai Bilulkar [Exh.31] on following grounds:-

(a) PW 7 Pushpabai is not an eye-witness to
act of assault resulting into taking away the

life of Rakesh Chavan, who is said to have been
murdered.

(b) She does not identify the person
assaulted and killed to be Rakesh.

(c) Assault and killing is not proved.

(d) PW 7 Pushpabai claims that what she said
is sound of Khat-Khat – cutting or beating.

(e) She saw that a human body was being cut
into pieces.

(f) PW 7 Pushpabai claims that she has
called her husband who too saw the incident.

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(g) She claims that she saw on the next day
morning that the accused was washing the floor

of his room.

(h) In the background that PW 7 Pushpabai,
who claims to have seen Accused No.1 cutting

the body of a human being, she or her husband
have not shown the natural and startling
reaction.

(i) PW 7 Pushpabai and her husband did not
discuss ig about what they have
other person in the background that they admit
seen with any

that there were ten to eleven persons residing

nearby and the houses are located close by.

(j) It is also admitted by the witness that

the house/room of accused and that of PW 7
Pushpabai is common. The behaviour is not

natural.

(k) Admittedly, the room where accused

resides does not have electricity, and the PW 7
Pushpabai does not say how was the room
illuminated and how was the incident visible.

(l) PW 7 Pushpabai, who is an eye-witness,

was actually examined by the Investigating
Officer in the process of investigation after
fifteen days of incident, which creates a doubt
about her being a witness of incident.

(m) It is not proved that PW 7 Pushpabai has

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identified that one, who was being assaulted,

was deceased Rakesh.

(n) Failure to examine husband of PW 7, who
has also witnessed the incident, brings the
very fact of PW 7 Pushpabai and her husband
being witnesses under a grave suspicion.

12. In so far as circumstantial evidence is concerned,

learned Adv. Mr. Daga has raised following points:-

[a] All witnesses are stating that they have

seen the accused in the
deceased Rakesh at various other places,
company of

however, there is no witness who claims

that he had seen the accused in the
company of the deceased at the place of
residence or at any place proximate to

the place of residence of the accused no.

1.

[b] Assuming that one and all circumstances
relied upon by the prosecution as

circumstantial evidence to connect the
link between the offence and the accused
to be worthy and to have been proved, and
proof having remained unshattered, even
then, no live link between commission of

offence and the accused is established.

[c] Considering that the clothes, which the
deceased was wearing, which were alleged
to have been identified , it is not clear
as to whether the human body, which was

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being cut, was naked, in the background

that the clothes are not having any cut
marks, and prosecution has failed to

prove this aspect by exploring or
eliciting any material in this regard in
the Examination-in-Chief of this witness.
Moreover, the defence had no reason to

ask questions on this point.

[d] In absence of proof of fact that Rakesh
himself was killed, the accused cannot be

convicted of the charge framed against

him.

[e] Even if it is proved that the accused

person had killed some other human being,
there is no charge framed by the
prosecution against accused Ajay for

assaulting an unidentified person as a
primary charge or as an alternate charge

and, therefore, it is not open to base
conviction on a charge of specific nature
for murder of a person for which there is

no charge.

[f] Even murder of unidentified person is not
proved.

[g] As there is no direct evidence, in order
to complete the chain of events by
circumstantial evidence, it would have
been necessary for the prosecution to
prove the motive. However, motive has
not been proved or even suggested.

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[h] Though the blood samples reportedly drawn
from corpse were sent for DNA test, the

report of DNA test is not proved.

[i] No effort is made to prove by evidence,
whatsoever, that the corpse belonged to

deceased Rakesh and that Rakesh was
murdered by Accused no.1.

[j] The charge pertains to assault and murder

of Rakesh son of Dattaji Chavan, whose

age is shown to be thirty years.

[k] Radiological opinion cannot be a

conclusive proof of age, particularly in
the light of ambiguity in the statements
of witnesses.

[l] There is no direct or indirect evidence

of involvement of Accused No.2 in any of
the acts which results in screening the
evidence of the offence.

[m] The case falls in the category of no
evidence whatsoever as regards Accused
No.2.

13. To substantiate his arguments, learned Adv. Mr.

R.M. Daga placed reliance on following judgments:-

[a] Kochu Maitheen Kannu Salim Vs. State of Kerala
[1998 Cri. L.J. 2277].

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Proposition :

When the eye-witness does not inform
till next day evening that the victim had
disappeared, despite the fact that he had seen
that the victim was accompanying the accused,

and claims to have witnessed the assault, this
conduct being unnatural, raises a serious doubt
that the witness has really seen the incident.

[b] Kailas Tukaram Patil & another Vs. State of

Maharashtra [2006 ALL MR (Cri) 86].

Proposition :

In absence of proof of fact that the
blood sample was drawn from the corpse, the

matching of the blood group found on the
clothes of the deceased with blood group of the

deceased, does not prove the fact that the said
blood really was the blood of the deceased.

[c] State of Maharashtra Vs. Bittu @ Gurumitsingh
son of Sardar Singh Makan & ors. [2006 ALL MR
(Cri) 1058].

Proposition :

Finding of human blood does not
constitute an incriminating circumstance to
convict the accused, unless it is proved that
the blood so found matches with the blood group
of the deceased,

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[d] Shankarlal Gyarasilal Dixit Vs. State of
Maharashtra [AIR 1981 SC 765].

Proposition :

In a case based on circumstantial

evidence, due to cumulative effect of the
circumstances, the guilt of the accused is to
be established beyond a shadow of doubt in
contrast with direct evidence where the doubt

has to be reasonable.

14. Learned APP has argued that the dead body, which

was constructed after arranging the parts in sequence, was

a beheaded corpse. Considering the evidence in the form of

clothes, and chain of other evidence which constitutes

circumstantial evidence read together with testimony of PW

7 Pushpabai, it is a case where the offence charged has

been proved. The age of the corpse matches with the age of

the deceased Rakesh and, therefore, prosecution has proved

the charge which was framed against accused. It is not

necessary that in every case the corpse must be proved in

its integrity.

15. Learned Addl. Public Prosecutor Mr. Thakre has

tried to support the judgment and appealed for enhancement

of the sentence, urging that :-

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              [1]     The offnece is heinous.




                                                                       
              [2]     It is proved by eye-witness.
              [3]     The commission of offence is brutal that




                                               

the person has been killed and cut into
pieces.

[4] The act of cutting into pieces the dead
body is not only brutal, but is aimed at

destroying the evidence.

16. Learned APP, therefore, urged for enhancement of

the punishment from that of life imprisonment to capital

punishment.

17. To support his submissions, learned APP placed

reliance on following judgments:-

[a] Annareddy Sambasiva Reddy & ors. Vs. State of

Andhra Pradesh [(2009) 12 SCC 546],

Proposition :

Any defect in charge could not vitiate

the sentence if ingredients of the Section
under which the accused is charged are obvious
and implicit.

[b] Ram Gulam Chaudhary & ors. Vs. State of Bihar
[(2001) 8 SCC 311],

Proposition :

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Even if corpus deliciti is not found,

and if there is direct or circumstantial
evidence conclusively showing that the accused

had committed murder and the victim had died,
the accused can be convicted.

[c] Nathuni Yadav & ors. Vs. State of Bihar &

another [(1998) 9 SCC 238].

Proposition :

Proof of motive cannot be expected in

the

every criminal case, since as to how mind of
accused has worked in a particular
situation may not be capable of proof by direct

evidence, and drawing an inference in that
regard is permissible.

[d] Ashok Kumar Chatterjee Vs. State of M.P. [1989

Supp (1) SCC 560].

Proposition :

If the circumstantial evidence relied
upon by the prosecution is cogent and it firmly
establishes the charge and the same does
unerringly point towards the guilt of the

accused, and if the circumstances taken
cumulatively and form a chain of complete
events, a conclusion with human probabilities
can be reached that the accused had committed
offence. Thus, if the accused is well connected
with the commission of offence by entire

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sequence of evidence forming circumstantial

evidence, it would be legal to base conviction
solely on circumstantial evidence.

[e] Ranbir & others Vs. State of Punjab [(1973) 2
SCC 444].

Proposition :

Delay in examination of a witness,

unless put to Investigating Officer, and he is

offered an opportunity to explain, should not
adversely affect the prosecution case as to its
credibility, though it would indicate some

unfairness in regard to mode of investigation.
Such delayed examination would not by itself
lead to a conclusion that the witness, subject-

matter, is a got up witness.

[f] State of Maharashtra Vs. Shankar Krisanrao
Khade [2009 Cri. L.J. 73];

AND,

[g] State of Maharashtra Vs. Rajendra Pralhadrao
Wasnik [2009 ALL MR (Cri) 1403].

Proposition :

As in present case, when the accused
has committed offence of murder by cutting the
neck, and then brutally cut the body into
pieces and attempted to commit murder,
collective effect thereof results in showing

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that the accused has no regard, whatsoever, for

human values, and has shown brutality, and in
the result, conviction ought to follow capital

sentence, and the accused deserves no leniency.

18. Now, this Court has to proceed to assess and re-

appreciate the evidence relied upon by the prosecution in

the light of law cited by both sides which this Court has

perused.

19.

witness,
If

the
the igcase stands

circumstantial
well

evidence
on testimony

will assume
of eye-

lesser

significance, though discussion thereof would be necessary.

20. The witness, who can be said to have last seen

the accused persons with the deceased, as well has seen the

act of accused of commission of offence, is practically PW

7 Pushpabai. Her husband is also an eye-witness of

commission of offence, since prior to PW 7 Pushpabai saw

the incident, he has seen it.

21. Upon going through testimonies of other witnesses,

it is seen that no witnesses are identified who could prove

that they had seen the accused and the deceased together

immediately prior to the time and place of offence, or at

any point of time proximate to the date and time of

offence.

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22. PW 1 Dattaji Ajabrao Chavan and PW 2 Ashabai

Dattaji Chavan are not relevant for the proof of charge, as

they do not prove any connection between the crime and the

accused.

23. Husband of PW 7 Pushpabai was neither examined

by Police at the time of investigation, nor even before the

Court.

24.

Therefore, this Court has to discuss the testimony

of PW 7 Pushpabai, sole eye-witness of the incident.

25. It would be useful to quote relevant statements of

PW 7 Pushpabai in her Examination-in-Chief and cross-

examination ad verbatim, and appreciate its effect.

Relevant text reads as follows:-

2. ………………………………..

……….On the day of incident, deceased
Rakesh came at the room of accused Ajay, at
about 8.00 a.m. I saw him. Thereafter I left
my house for my usual work. I returned to my
home in the evening at about 7.00 p.m. When I
returned to my house, I saw that deceased

Rakesh and accused Ajay both were sitting in
front of the door of their room.

Thereafter, I saw that deceased Rakesh
and Ajay both were proceeding towards the
lodging house, perhaps to take their meals, but
exactly where they went I am not aware of it
but they went in my presence. Thereafter we
also took our meals and after observing the
T.V. Programme for few times, we went asleep.

In the night at about 10.30 p.m. I

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heard certain sound as Khat, Khat i.e., of
beating or cutting something.

The sound was coming from the room of
accused Ajay.

Because of the said sound, my husband

also woke up and he went outside the house to
see of what the sound was.

Then my husband again came back in the
house and from some portion of the window which
is fixed in the wall in between my room and the

room of accused Ajay.

My husband saw that accused no.1 was
cutting a human body. There was a sattur in
the hands of accused Ajay and with that sattur
he was cutting the human body.

Thereafter from the same window I also

peeped into the room of accused Ajay and saw
that accused Ajay was cutting one human body

with the aid of Sattoor.

Thereafter we went to sleep. In the
morning we saw that accused Ajay was washing
the floor of his room.

Thereafter, at about 9.00 a.m., I went
to my work. Usually, I returned from my work
in the evening. When I came back I saw that
accused Ajay and accused Dinesh were standing
in front of their room.

They were having one gunny bag filled
with some substance, and one suitcase.
Thereafter they hired one auto.

They kept the gunny bag and their
suitcase in the auto and by sitting in the said
auto both the accused went away.

Though I and my husband had seen the
accused cutting human body in his room, we did

not make any report of it or did not inform it
regarding it to anybody as we were afraid of
its consequences and we were afraid of the
accused. …..

3. ………………………………..

……….It is true that there was no electric
connection in the room of accused Ajay. It is
not true to say that there are no electric
connection even in the adjacent houses.

It is not true to say that on the day
of incident I did not see deceased Rakesh with
accused Ajay.

It is true that the window in the wall
in between my room and room of accused Ajay
used to be always closed.

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I was on talking terms with all 10 to
12 persons who residing around my house. It is

true that though we heard the beating and
cutting sound from the room of accused Ajay we
did not inform regarding it to the persons

residing in the adjacent houses.

It is not true to say that on the day
of incident even I did not see accused Ajay.
It is further not true to say that at that
time, accused had gone to his work.

I am unable to tell as to how many
persons were there at the room of accused Ajay
at the time of incident. Ajay and two others
total 3 persons were residing in the room of
accused Ajay. …..

……………………………….
……….It is true that when I used to reach

at my home, there used to be dark. It is true
that as there was no electric connection in the
room of accused Ajay, there was dark in front
of room of accused Ajay. It is true that as

there was dark in front of room of accused Ajay
it was not clearly visible what was going on in
front of door.

On the next day of the incident, one
another boy was accompanying accused Ajay but I

was not knowing his name.

While police had recorded my
statement, I did not give description of the

said boy to the police.

I am also unable to tell which clothes
the said boy was wearing. It is not true to
say that on the second day except Ajay I have
not seen any other person with him and hence I

am unable to tell his description.

I cannot tell who was the autowala. I
even cannot give his description.

At that time, empty vacant auto-
rickshaw was brought by the accused persons.

Nobody was occupying the said auto

when it was brought by the accused. I am not
aware of the name of accused no.2. …..

………………………………..
………On the second day, one person was
accompanying accused Ajay when he went in auto-
rickshaw with gunny bag and suitcase but who he
was I am not aware of it.

It is not true to say that no such
incident took place on second day. After 15
days of the incident, the police recorded my

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statement. ……

[Sub-paragraphing is done for convenience of reading.
Relevant and important portions are underlined to highlight

the same. Quoted from page nos. 85 to 90 of the appeal
paper-book].

26. The summary of testimony of PW 7 Pushpabai

Bilulkar can be referred, in nutshell, as follows:-

On the day of incident, she saw the
accused and deceased together in the morning,

and again in the evening. Thereafter, her
husband saw in the room of accused that the

accused persons were cutting a human body. PW
7 Pushpabai too saw the same thing. She did

not disclose to anybody whatever she had seen.
On the next day morning, she saw accused
carrying one gunny bag filled with some
material, in an auto-rickshaw.

Substance of the cross-examination of PW 7

Pushpabai is:-

There was no electricity supply, and
she also tells about the details of
neighbouring occupants etc.

27. It would be useful to analyze the testimony of PW

7 Pushpabai, which is quoted by marking sub-paragraphs,

and is summarized in foregoing paras. This analysis would

help to know whether she proves the involvement of accused

persons.

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28. PW 7 Pushpabai admits the following:-

[a] Relevant time was 10.30 p.m.

[b] It was dark.

[c] Her husband heard the sound of Khat-

Khat . Soon thereafter, her husband went
outside the room. He came back and saw
through some space of the window between

the room occupied by them and the room
where accused no.1 was residing.
ig Her husband saw that the accused
was cutting a human body.

[d] Either PW 7 Pushpabai or her husband
do not identify the person being cut to
be live or dead, and it to be the body of

the deceased.

[e] PW 7 Pushpabai cannot tell how many
persons were there in the room when the
accused was cutting the body into pieces.

[f] PW 7 Pushpabai and her husband
peacefully went to sleep.

[g] They did not disclose the incident to
anybody either on that day, or the next
day morning.

[h] PW 7 Pushpabai cannot identify the auto-

rickshaw driver, in whose vehicle the

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gunny bag etc., were taken away by the

accused.

[i] She does not identify the accused no.2.

[j] She claims that her statement was
recorded after fifteen days.

[k] It is seen that the statement of PW 7
Pushpabai was actually recorded after
one-and-half month from the date of

incident.

29.

Analysis of testimonies of various witnesses, who

are examined to prove chain of circumstances to prove that

the accused must have committed the offence, which is

referred to by this Court in foregoing para 6, can be done

as follows:-

[a] PW 3 Warlu Wadku Kosare a witness
from whom Ajay got the Sattoor sharpened.

Anyalysis and observation of this
Court :-

In absence of proof of fact, by
direct or circumstantial evidence, that
accused is the assailant, testimony of
this witness is insignificant.

[b] PW 4 Megha Shende, a witness of last

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seen two days prior to the incident.

Anyalysis and observation of this

Court :-

The fact if this witness has
seen the accused in company of deceased

two days before the incident carries no
significance when PW 7 Pushpabai has
seen the accused in the morning of
incident in company of the deceased.

[c]
PW 5 Vinod Kangale
between accused and deceased five days
witness of quarrel

prior to the incident, and the accused

persons carrying a gunny bag with
something in it in the auto-rickshaw.

Anyalysis and observation of this
Court :-

Fact if this witness has seen
the accused in company of deceased five

days before the incident carries no
significance when PW 7 Pushpabai has
seen the accused in the morning of
incident with deceased.

Until Court is persuaded to

believe that the accused had packed the
parts of dead body in the gunny bag,
testimony of this witness barely proves
that the accused had carried said gunny
bag in the said auto-rickshaw.

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25

[d] PW 6 Amol Umare witness of having

seen the accused with a gunny bag in the
auto-rickshaw.

Anyalysis and observation of this
Court :-

                          Until     Court     is       persuaded        to
            believe that the accused had                   packed the
            parts    of    dead     body    in     the    gunny      bag,

testimony of this witness barely proves

that the accused had carried said gunny

bag in the said auto-rickshaw.

[e] PW 8 Mahesh Lakhani and PW 9 Ajay

Chakradhare – witnesses of having sold to
the accused polythene bags and a gunny
bag respectively.

Anyalysis and observation of this

Court :-

In absence of proof of fact, by

direct or circumstantial evidence, that
accused is the assailant, testimonies of
these witnesses are insignificant.

[f] PW 10 Jayant Raich witness of having

seen the accused and deceased together at
his shop and that the accused persons
uttered that it is better that he [PW 10]
would meet Rakesh, as he may not be
available henceforth.

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Anyalysis and observation of this

Court :-

In absence of proof of fact, by
direct or circumstantial evidence, that
accused is the assailant, testimony of
this witness is insignificant.

[g] PW 12 Premchand Chaudhari, Auto-

rickshaw driver, who claims that he has
seen both accused persons with a gunny

bag disposing the same at Rani Zansi

Square.

Anyalysis and observation of this

Court :-

This witness can be useful if he

is identified to be the auto-rickshaw
driver who was called by accused and he

had identified the accused and also if it
is proved that accused no.1 is the
assailant by primary or circumstantial

evidence.

Moreover, he admits in cross-
examination at page 135 of the appeal
paper-book that there was dark and it was

not possible for him to have a close look
of the passengers travelling in his
vehicle.

[h] Other witnesses are panch witnesses,
Police witnesses etc.,

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Anyalysis and observation of this
Court :-

In absence of proof of fact that
accused is the assailant by direct or
circumstantial evidence, testimonies of

these witnesses are insignificant, as in
themselves or in isolation, these
witnesses do not prove commission of
offence.

30.

Admittedly, any Test Identification Parade has not

been conducted.

31. It is also seen that the prosecution has failed to

prove that the blood group of the corpse is not proved and,

therefore, the prosecution is not able to prove that the

blood group found on the alleged weapon of assault belongs

to blood group of the deceased. Moreover, DNA test is not

proved and the blood group is not proved to be that of the

deceased.

32. It is not explained as to why the statement of

husband of PW 7 Pushpabai who had witnessed the incident,

was not recorded.

33. Pertinently enough, statement of even anyone

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amongst the neighbours was not either recorded or anyone

from them has come forward.

34. PW 23 Gulabrao Shriram Mahalle admits that

statement of PW 7 Pushpabai was recorded on 27th August,

2001 after the accused gave a statement.

35. Therefore, this Court has to record a finding

that:-

[a]
ig (i) The solitary eye-witness – PW 7

Pushpabai fails to prove that she is a
truthful eye-witness to prove charge
that corpse of person seen by her being
cut into pieces was of Rakesh.

Considering totality of her version, her
conduct of keeping silence even on

seeing a brutal act of cutting a human
body into pieces is unnatural. Her
conduct is unnatural all the more when

her husband first saw it, later she saw
it, but in a thickly populated locality,
they do not disclose it to anyone and
peacefully sleep and go for work on the

next day, and keep quiet for one-and-
half-month till police come forward.

(ii) She has not proved that Accused
No.2 was accompanying the Accused No.1
during whatever she had witnessed. PW 7
Pushpabai is, therefore, not an eye-

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29

witness, nor is a worthy witness.

Facets of her testimony noted in
Paragraph No. 28 render her status as an

eye-witness totally doubtful.

(iii) In the result, the charge is
not proved by the eye-witness.

[b] Now, this Court has to decide as regards
the weight of circumstantial evidence,

as the primary evidence in the form of

eye-witness gets shreded.

(i) Circumstantial evidence does

not, in any manner, establish the link
between the accused and the crime with
consistent series of events, much less

even with any staggered or interrupted
series of events.

(ii) All these pieces of evidence
are broken link which do not match one

another in sequence, whatsoever, and
connect the accused with homicidal death
of the victim Rakesh in the manner
whatsoever.

36. In the result, appeal of the accused-convicts

succeeds and of the State fails. Appellants are acquitted

of the charge.

Accused be dealt with as to their liberty

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according to law, since they are already in appeal before

this Court against capital punishment, depending on the

Judgment as may be delivered in due course in Confirmation

Case No. 2 of 2009 with Criminal Appeal Nos. 58 and 275

both of 2010.

            JUDGE                                             JUDGE




                                   
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