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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Appeal No. 198/2004
Dinesh s/o Ruprao Band,
aged about 23 years,
resident of Yavatmal,
Tahsil and District Yavatmal
(Presently in Jail).
.. . Appellant
.VERSUS.
State of Maharashtra,
through the Police Station Officer,
Police Station Yavatmal City,
District: Yavatmal.
... Respondent
....
Mr. R.M. Patwardhan, Advocate (appointed ) for the appellant.
Mr. T.A. Mirza, A.P.P. for the respondent.
.....
Criminal Appeal No. 345/2004
The State of Maharashtra,
Through P.S.O. Yavatmal.
.....Appellant.
.Versus.
Dinesh Ruprao Band,
aged 24 years,
Resident of Yavatmal,
District: Yavatmal. .... Respondent.
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.....
Mr. T.A. Mirza, learned A.P.P. for the appellant.
Mrs. U.K. Kalsi, Advocate for the respondent.
.....
CORAM : A.P. LAVANDE & PRASANNA B. VARALE, JJ
DATE OF RESERVING : 02.12..2009
DATE OF PRONOUNCEMENT : 19.12.2009
JUDGMENT (PER A.P.LAVANDE, J)
Both these appeals are being disposed of by
common Judgment since they arise out of the Judgment and
order dated 30th December, 2003 passed by the 2nd Ad hoc
Additional Sessions Judge, Yavatmal in Sessions Trial No.
126/2001. By the impugned Judgment and order the appellant
in Criminal Appeal No. 198/2004 (hereinafter referred to as
‘the accused’) has been convicted for the offence punishable
under Sections 302 and 201 of the Indian Penal Code and
sentenced to suffer imprisonment for life and to pay a fine of
Rs. 1000/- in default to undergo R.I. for six months and to
suffer R.I. for seven years and also to pay a fine of Rs. 1000/- in
default to undergo R.I. for three months respectively. Both the
sentences have been ordered to run concurrently. By the said
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Judgment the appellant who was the original accused no.1
before the trial court has been acquitted of the offences
punishable under Sections 363 and 364 of the Indian Penal
Code. By the said Judgment the original accused no.2 Vinod
Ruprao Band and original accused no. 3 Smt. Kusum Ruprao
Band have been acquitted for the offences punishable under
Sections 363, 364, 302 and 201 read with Section 34 of the
Indian Penal Code. Criminal Appeal No. 198/2004 has been
filed by the accused challenging his conviction and sentence
imposed upon him whereas the Criminal Appeal No. 345/2004
has been filed the State challenging the acquittal of the the
accused for the offences punishable under Sections 363 and
364 of the Indian Penal Code.
2. Briefly, the prosecution case is as follows:
Informant Sunita Khole and her husband Prakash
Khole own their house at Pachgade Layout, Bhosa Road,
Yavatmal. They were residing with their two sons Swapnil
and Shreyash @ Bitu, daughter Neha and parents of Prakash
Khole. Shreyash at the relevant time was one year and ten
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months old and used to go to the School. Prakash along with
his family used to live on the first floor of the house and five
tenants were occupying different blocks on the ground floor of
the said house. Accused Dinesh and his brother Vinod are the
sons of Kusum who were arrayed as accused 1 to 3 respectively
in the trial. The block occupied by the three accused was
adjacent to the stair case by which informant and her family
members used to pass. Prakash Khole was having vehicle
Tata Sumo which was being driven by driver Nandu. About ten
days before the incident which occurred on 2.1.2001 Prakash
Khole had sold the said vehicle and he was in possession of the
substantial cash generated from the sale of the said vehicle.
Rambhau Khole father of Prakash Khole used to take deceased
Shreyash and Swapnil Khole to the School in which they were
studying.
3. On 2.1.2001 at about 11.15 a.m. as usual Swapnil got
down from the first floor and on seeing him Rambhau
enquired as to where Shreyash was to which Swapnil replied
that Shreyash had already got down. Rambhau called name of
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Shreyash and since he was not traceable, searched for him.
Since Shreyas was missing there was commotion in the house.
Everybody started searching for him. They started inquiry with
the driver Nandu and also made inquiries from the tenants
including all the three accused but they claimed that they had
not seen Shreyas. At about 1.30 p.m. on the same day there
was a phone call received at the house of the informant
stating that Shreyas was safe and they should come to Nasik
S.T. Stand to collect him. Therefore, Sunita Khole lodged
report about missing of her child and about the phone call to
Police Station, Yavatmal City. Police registered the offences
under Sections 363 and 364 of the Indian Penal Code against
unknown persons. Police went to the spot and prepared spot
panchanama. Investigation was taken up. During the
investigation statements of several witnesses were recorded.
In the course of investigation it transpired that there was a
love affair between accused Dinesh and Vaishali Gavai who
was staying on the ground floor as tenant. On 15.1.2001 the
police came to know that Vaishali Gavai and Sapna Shukla
who was working in the S.T.D. Booth had run away from their
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homes and got married by going to Temple at Mahur. Police
suspected that both these ladies might have been involved in
kidnapping of Shreyas since both them could not have a son
of their own. Both of them were arrested by the Police but after
few days they were released. Sapana Shukla suspected that
accused Dinesh was involved in kidnapping of the child. Upon
suspicion Dinesh- the accused was arrested. While in custody
he made a statement pursuant to which the spot from where
the dead body of Shreyas which was burnt, ash, pieces of
bones and wood etc. were discovered near the Babul tree in
the Mandev forest. The Police found ash and pieces of bones,
pieces of logs of wood and padpas which were partly burnt
and also unburnt pieces of gunny bags. Police prepared spot
panchanama and seized these articles found on that spot.
During investigation it was revealed that the accused had
purchased pieces of woods, padpas, petrol , match box and
rock oil for the purpose of burning the dead body of Shreyas.
The statements of the persons from whom he had purchased
these articles were recorded. The Police sent pieces of bones to
the medical expert to enquire whether they belonged to
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human being and whether any test like C. A. analysis and
D.N.A. Test was necessary. Doctor informed the police that
D.N.A. Test in respect of the bone was necessary. The police
accordingly informed the informant and her husband –
parents of the deceased Shreyas to accompany them to the
Laboratory at Hyderabad. The parents of Shreyas went to
Hyderabad with police. The Chief of the Laboratory at
Hyderabad after conducting D.N.A. test with the help of bones
and blood samples, came to the conclusion that bones were of
the biological offspring of complainant and her husband
Prakash. Police collected certificate from the Laboratory at
Hyderabad. The police seized auto-rickshaw which was used
by Dinesh to carry out the dead body of the child. Seized
articles were sent for analysis to C.A. Nagpur. During
investigation, the investigating officer came to the conclusion
that accused Dinesh with the help of his brother Vinod and
mother Kusum had kidnapped the child Shreyas while he was
getting down from his house to go to the School and dragged
him to their block and to prevent him from shouting his neck
and mouth were pressed due to which he died. The accused in
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order to destroy the evidence in the matter burnt the dead
body of Shreyas by taking it to the Mandev Jungle.
Accordingly the charge sheet for the offences punishable
under Sections 363, 364, 302 and 201 read with Section 34 was
filed against the three accused before the Chief Judicial
Magistrate, Yavatmal.
4.
Since the offence punishable under Sections 364 and
302 of the Indian Penal Code were exclusively triable by the
Court of Sessions, the case was committed to the Court of
Sessions, Yavatmal who made it over to the Additional
Sessions Judge, Yavatmal. All the three accused were charged
for the offences punishable under Sections 363, 364, 302 and
201 read with Section 34 of the Indian Penal Code. The
accused pleaded not guilty and claimed to be there. The
defence of the accused was of total denial.
5. In order to prove the charges against all the accused
the prosecution examined in all twenty three witnesses and
produced several documents. The learned Additional Sessions
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Judge, upon appreciation of evidence convicted the appellant
original accused no.1 for the offence punishable under
Sections 302 and 201 of the Indian Penal Code and acquitted
him for the offences punishable under Sections 363 and 364 of
the Indian Penal Code. All other two accused were acquitted
of the offences for which they were charged.
6.
Mr. Patwardhan, learned counsel for the accused in
Criminal Appeal No. 198/2004 submitted that there is no
cogent evidence led by the prosecution to prove the
complicity of the accused in the commission of the crime. The
learned counsel further submitted that the motive for
commission of the crime by the accused has not been
established and there is absolutely no evidence on record to
establish that the accused had knowledge about sale of the
vehicle by the father of deceased Shreyas. The learned counsel
further submitted that the conduct of the accused soon after
Shreyas was missing was consistent with his innocence
inasmuch as the accused himself participated in the search of
missing Shreyas. According to Mr. Patwardhan, discovery of
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the spot where burn ashes and bones were found allegedly at
the instance of the accused has not been proved by the
prosecution and moreover DNA test does not establish that
the bones were of biological child of Prakash Khole and his
wife Sunita Khole. He further submitted that the evidence
relied upon by the trial Judge regarding purchase of kerosene,
match box, wood allegedly used by the accused in setting fire
to the dead body of Shreyas does not inspire confidence
inasmuch as all these witnesses were not knowing the
accused prior to the incident and no identification parade was
held to get the accused identified by all these witnesses. Mr.
Patwardhan further submitted that the circumstantial
evidence led by the prosecution is not sufficient to connect the
accused with the crime of murder of Shreyas beyond
reasonable doubt and as such conviction of the accused for
the offence punishable under Section 302 of the Indian Penal
Code is unsustainable in law. In support of his submissions,
the learned counsel relied upon the following Judgments;
i) Mahmood vs. State of Uttar Pradesh ::: Downloaded on - 09/06/2013 15:27:17 ::: 11 1976 CRI. L.J.. 10. ii) Bakshish Singh vs. The State of Punjab 1971 CRI. L.J., 1452; iii) Premjibhai Bachubhai Khasiya vs. Sate of Gurarat and another. 2009 CRI. L.J., 2888; iv) Ashish Batham vs. State of Madhya Pradesh 2002 CRI. L.J. 4676.
7. Per contra, Mr. T.A.Mirza, learned A.P.P. appearing
on behalf of the State submitted that the conviction of the
accused for the offence punishable under Section 302 of
the Indian Penal Code does not warrant any interference by
this Court since circumstantial evidence unerringly points
to the guilt of the accused and the tests laid down by the
Apex Court for recording conviction of the accused based
on circumstantial evidence have been satisfied in the
present case. Mr. Mirza, therefore, submitted that the
circumstances in no uncertain terms establish the guilt of
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the accused.
8. Mr. Mirza in support of Criminal Appeal No. 345/2004
preferred by the State submitted that the learned Additional
Sessions Judge having found that the accused had committed
murder of deceased Shreyas ought to have convicted the
accused for the offence punishable under Section 364 of the
Indian Penal Code inasmuch as it is inconceivable and
impossible that the accused could commit murder of Shreyas
without kidnapping him having regard to the fact that Shreyas
was hardly two years old at the time of the incident. Mr. Mirza
further submitted that the accused having been found to have
murdered the deceased the only conclusion that can be drawn
is he committed murder after kidnapping the child Shreyas.
He, therefore, submitted that the acquittal of the accused for
the offence punishable under Section 364 of the Indian Penal
Code is liable to beset aside. In support of his submission, Mr.
Mirza relied upon the Judgment of the Apex Court in Sucha
Singh vs. State of Punjab (AIR 2001 Supreme Court, 1436.
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9. Mrs. Kalsi, learned counsel appearing for the accused
in Criminal Appeal No. 345/2004 preferred by the State
submitted that there is absolutely no evidence led by the
prosecution to establish the offence of kidnapping against
him. She, therefore, submitted that the appeal preferred by the
State against the acquittal of the accused for the offence under
Section 364 is liable to be set aside.
10. We have carefully considered the rival submissions,
perused the record and the Judgments relied upon. In order to
prove the offences of murder and kidnapping against the
accused the prosecution has relied upon the following
circumstances.
i) Victim Shreyas was found missing at about 11.30
a.m. on 2.1.2001 and thereafter he was never traced;
ii) Accused was knowing that Prakash Khole (P.W.7)
had sold his four wheeler and substantial cash received
from the sale was with him.
iii) Motive. The accused had kidnapped Shreyas with
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a view to compel his parents to pay ransom;
iv) Purchase of petrol, rock oil, match box and fire
wood by the accused on the date of incident.
v) Phone call was made by the accused at S.T.D. Centre
on 2.1.2001 at Yavatmal.
vi) Discovery of spot where burnt ash and bones and
other articles were found at the instance of the accused.
vii) D.N.A. Test conducted by G. Venkateshwar Rao
(P.W.22) discloses that the bones were of the biological
child of Prakash Khole and Mrs. Sunita Khole.
viii) C.A. Report discloses the presence of kerosene on
the ash, pieces of half burnt gunny bag and earth.
ix) Spot panchanama.
11. Insofar as the first circumstance is concerned, the
same is not seriously in dispute. The evidence of Sunita Khole
(P.W.1) discloses that on 2.1.2001 she was residing in her
residential house at Yavatmal with her husband, children and
in – laws. She had three children viz. Neha, Swapnil and Bittu
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@ Shreyas. Her evidence also discloses that they were residing
on the first floor and on the ground floor there were five
tenants occupying five different blocks. The family of Band
was staying as tenant on the ground floor. The accused along
with his brother Vinod and mother Kusum were staying in one
block consisting of two rooms. They were staying just near the
stair case and in front of their home there was a porch. At the
relevant time her husband was serving at Parva. On the day of
incident here husband left for Parva at 8 a.m. Her son Swapnil
and Shreyas were in the house and daughter Neha had gone
to the school. Her father-in-law Rambhau was in the house.
At about 11.15 a.m. her father-in-law came in the porch for
taking Swapnil to the School and thereafter he went to toilet
and removed his scooter outside the house. He called Swapnil
for going to the School. Since Shreyas @ Bitu had not come
along with Swapnil, Rambhau inquired from Swapnil as to
why Bittu had not come down to which Swapnil told him that
Bittu had already come down from the first floor and he had
followed him (Rambhau). Thereafter, Rambhau started
searching Bittu and started calling his name but Bittu could
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not be traced. Thereafter her mother-in-law told her to stop
collecting water and to search Bittu. She also came down on
the ground floor and started searching Bittu. The children
present there told her that they had not seen Bittu. At that
time accused Denesh was standing at the door of his house.
She also inquired from him about Bittu. He told her that he
had seen Bittu prior to about 15 to 20 minutes. Thereafter,
accused went inside the house and his mother Kusum came
out. She also told her that she had not seen Bittu. Again she
started searching for Bittu in the house of neighbours but he
could not be traced. Thereafter she along with Mrs. Sharma
and Kusumbai went to the house of Nandu who was residing
near Hanuman Akhada, Yavatmal. Nandu was not present in
the house but his mother informed her that Bittu had not
come to their house with Nandu. Thereafter, all of them
returned back.
12. The witness further deposed that on the very same day
at about 1.45 p.m. there was a phone call at her house which
was received by her mother-in-law. She was present near the
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phone. She heard her mother-in-law asking as to where they
should come. Since she thought that phone call was in relation
to her son she took the receiver of the phone and inquired as
to where she should come. She received reply that she should
come at Nasik Bus Stand and thereafter the phone was
disconnected. Thereafter, she made inquiry with her mother-
in-law who told her that she was informed on phone that her
son who was missing was safe and they should come at S.T.
Stand at Nasik. Thereafter, they thought that somebody might
have kidnapped Bittu. So she went to the Police Station
Yavatmal City and lodged report which was recorded by
Police Station Officer as per her say. The witness identified the
signature on the report Exh. 60 and stated that the contents
were correct. She identified all the three accused present in
the court as her tenants. She further deposed that Nandu was
driver on their Tata Sumo Vehicle. Her husband sold Tata
Sumo prior to this incident and the accused Dinesh was aware
that they were having cash received from the sale of the
vehicle. She further deposed that after the incident police had
taken her and her husband to Hyderabad for DNA
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examination. She identified the identification form of her
husband and photograph of her husband on the said form.
She identified the declaration Exh. 63. She further deposed
that on 21.2.2001 her husband had come to the house with
police as he had come to know that Dinesh committed
murder of their son while he was coming down on the ground
floor. In cross-examination she stated that about 11 to 11.30
p.m. she was called to Police Station, Yavatmal and Police
made inquiry with her but she did not remember whether they
had recorded her statement. She further deposed that she did
not suspect that her driver Nandu had kidnapped her son. She
could not tell when she disclosed to the Police about the
behaviour of the accused. She denied the suggestion that
accused Dinesh was not aware about the cash received from
the sale proceeds of the vehicle and that the cash of the sale-
proceeds was with them. She denied the suggestion that after
the incident accused Dinesh was not disturbed. The evidence
of this witness is substantially corroborated by her husband
Prakash (P.W.17) and Rambhau (P.W. 16) grand father of the
deceased.
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13. Prakash Khole (P.W. 17) has also deposed that on
2.1.2001 he went to Parva at 8 a.m. for duty and he returned to
Yavatmal at about 2.30 p.m.. He was informed near the gate by
Dinesh that Bittu was kidnapped and they were called at Nasik
for taking him. He thereafter went to Dhamangaon Railway
Station and took search of Bittu at Railway Station and other
places but he could not find him and as such he returned back
to the house. Thereafter on 21.1.2001 police called him at
Superintendent of Police Office, Yavatmal where accused
Dinesh was brought after arrest. Thereafter, witness deposed
that Dinesh told that while Bittu was coming down on the
ground floor he took Bittu to his house. In the meanwhile
grand-father of Bittu gave call and, therefore, he forcibly
pressed his mouth. He kept the dead body in a gunny bag and
put it on the sajja of his house. Thereafter, he realised that his
son was no more and as such he returned to his house.
Thereafter, again police called him after some time at Police
Station, Yavatmal City and asked him to accompany them. He
went to Mandev Forest Area on his vehicle and police went to
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the spot with accused Dinesh who showed the spot where
some ash was lying. Thereafter, from the ash bones were
traced out. Thereafter he returned home. Witness further
deposed that after 2nd January, 2001 Dinesh was always going
out of station. Prior to this incident he had sold four wheelers
for Rs. 2..45 lacs. The witness further deposed that on
14.3.2001 he was called in the Police Station and was told by
P.I. Yempalliwar that he had to come along with him to
Hyderabad for giving sample of his blood for DNA test. He
asked him to proceed to Hyderabad on the next morning.
Thereafter he along with his wife, P.S. I. Gavai, Police
Constable Mr. Gaiakwad went to Hyderabad. They reached
Hyderabad at 2.00 p.m.. At Hyderabad he and his wife were
given identification Forms in the laboratory which were filled
by them and thereafter he gave declaration. He also identified
his photograph on the said form. He also identified
declaration Exh. 62 given by his wife and signed by him and
P.S.I. Gavai as a witness. He also identified the photograph of
his wife on the declaration. He further deposed that at the
laboratory the attendant took his blood as well as blood of his
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wife. The witness deposed that all the three accused were
residing in his house as tenants. He identified all the three
accused. In the cross-examination the witness stated that
when he came to Yavatmal he did not know whether the police
were searching Bittu. He further stated that on the next day
he had gone to Nasik along with P.S.I., Gaikwad and
P.S.I.,Gholap. He was confronted with the police statement
that there is no mention that accused had traced out the bones
from ash and handed over to police. Witness has denied that
accused had not made any statement before the police as
stated by the witness.
14. The evidence of Rambhau Khole (P.W. 16) the
grand-father of deceased also corroborates the version of
above referred two witnesses that deceased Shreyas was
found missing on 2.1.2001 at about 11.15 a.m. The witness has
also deposed that all the three accused were aware that they
had sold the Tata Sumo about 8 days prior to the incident and
they were having cash amount received from the sale proceeds
of the vehicle. In cross-examination of these witnesses nothing
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tangible has been brought on record to discredit his testimony
that Bittu was found missing at 11.15 a.m. on 2.1.2001. Thus,
the evidence of above three witnesses clearly establishes that
deceased Shreyas was found missing at 11.15 a.m. on 2.1.2001
and thereafter he was never traced.
15. The evidence of the above three witnesses also
establishes that about 8 days prior to the incident Prakash had
sold Tata Sumo and he had received the amount of Rs. 2.45
lacs as sale proceeds of the vehicle. Insofar as the knowledge
of the accused about the availability of the said sale-proceeds
of the vehicle is concerned, there is no direct evidence
available on record that accused had knowledge about cash
received from the sale of vehicle. However, having regard to
the fact that the accused was residing on the ground floor as
tenant, it was quite natural for the accused to know that
Prakash Khole father of the deceased must have received
substantial amount from the sale of the vehicle although the
accused could not be attributed the knowledge of the exact
amount received by Prakash Khole from the sale of the vehicle.
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Having regard to the fact that the accused and his family
members were residing on the ground floor which is near the
entry of the building it was quite natural for the accused to
know about the sale of the vehicle by Prakash Khole.
16 Insofar as motive is concerned no direct evidence
has been led by the prosecution and having regard to the
nature of the crime allegedly committed by the accused and
the circumstances in which deceased appears to have died the
prosecution can not be expected to prove motive by leading
cogent evidence. However, we shall deal with this aspect little
later when we deal with the aspect of recovery. But, since the
prosecution has been able to establish that the spot where ash
and bones were found was discovered at the instance of the
accused and it has been proved by the prosecution that the
said bones were of biological child of Prakash and Sunita
Khole. The necessary inference which can be drawn is that the
accused must have taken Shreyas in his house with a view to
demand ransom from his parents as they had cash with them
received by them from the sale of the vehicle.
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17. The next circumstances relied upon by the prosecution
is purchase of petrol, rock oil, firewood and match box by the
accused on 2.1.2001. According to the prosecution, all these
articles were used by the accused for burning the dead body
of Shreyas in Mandev forest. In order to prove purchase of
petrol on 2.1.2001 the Bombaywala Petrol Pump at Yavatmal
the prosecution examined Raju Bapuraoji Kuthe (P.W. 4) and
Firozuddin Sheikh (P.W.6) who at the relevant time were
working at the said Petrol Pump. Both of them have deposed
that on 3.1.2001 at about 7.00 a.m. accused came to the Petrol
Pump with plastic can and purchased one litre petrol from the
Petrol Pump and paid price amount of Rs. 31/-. Raju Kuthe
(P.W.4) deposed that he had seen accused Vinod in the Bus
Stand area, Yavatmal and , therefore, he could identify
accused no. 2 Vinod as a person who was in the auto-rickshaw
in which both the accused came to the Petrol Pump. The
evidence of Firozuddin Sheikh (P.W. 6) is on the similar lines.
Sk. Ghani s/o Sk. Hasan (P.W.5) who was examined by the
prosecution to prove the purchase of 15 kg. firewood deposed
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that on 2.1.2001 at about 6 pm. accused purchased 15 kgs
firewood for Rs. 18/-. The firewood consisted of cut pieces
and padpas. He identified accused no.1 in the trial court as
the same person to whom he had sold firewood. The
prosecution examined Dinesh Nanvatkar (P.W. 9) to prove the
sale of rock oil to the accused at about 6 p.m. on 2.1.2001.
According to this witness, he sold two and half litres rock oil to
the accused for Rs. 20/- in a dabki which was of white dirty
colour. Similarly, the prosecution examined Vijay Pajgade
(P.W. 12) to prove the sale of match box. The purchase of
match box was made by the accused at Gajanan Kirana Stores
situated at Pajgade Layout, Yavatmal. According to this
witness at about 7 to 8 p.m. Dinesh Band the accused
purchased match box from his shop for 50 paise. He claimed
that he knew Dinesh at the time of the incident as he was
tenant of Prakash Khole.
18. We find it extremely difficult to place reliance upon to
the testimonies of all these witnesses to prove the purchase of
petrol, rock oil, wood and match box on 2.1.2001 by the
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accused inasmuch as the Investigating Officer in the cross
examination admitted that Raju Kuthe (P.W. 4), Sk. Ghani
(P.W.5), Firozuddin Sheikh (P.W.6) and Dinesh Nanvatkar
(P.W.9) did not know the accused prior to recording of their
statements. Admittedly, the statements of all these witnesses
were recorded after the arrest of the accused on 21.2.2001.
Moreover, the Investigating Officer has not deposed as to how
he came to know that the accused had purchased above
mentioned articles from these witnesses. In criminal trials and
more particularly in a case based on circumstantial evidence
it is extremely important for the Investigating Officer to
depose regarding the various steps taken by him including
recording of the statements of the various witnesses. In the
present case the investigating officer has not disclosed as to
how he came to know that the accused had purchased various
articles from the above referred witnesses. This was all the
more important since the investigating officer has admitted
that all these witnesses did not know the accused. It is not in
dispute that identification parade was not done during
investigation. In this connection, we deem it appropriate to
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refer to the Judgment of the Apex Court in the case of Subhash
Chand vs. State of Rajasthan (2002) 1 Supreme Court Cases,
702. Paragraph 26 of the said Judgment reads thus;
“26 . Before parting with the case we would like
to place on record, an observation of ours,
touching an aspect of the case. There are clueless
crimes committed. The factum of a cognizable
crime having been committed is known but
neither the identity of the accused is disclosed
nor is thee any indication available of the
witnesses who would be able to furnish useful
and relevant evidence. Such offences put to test
the wits of an investigating officer. A vigilant
investigating officer, well versed with the
techniques of the job, is in a position to collect
the threads of evidence finding out the path
which leads to the culprit. The ends, which the
administration of criminal justice serves are not
achieved merely by catching hold of the culprit.
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The accusation has to be proved to the hilt in a
court of law. The evidence of the investigating
officer given in the court should have a rhythm
explaining step by step how the investigation
proceeded leading to detection of the offender
and collection of evidence against him. This is
necessary to exclude the likelihood of any
innocent having been picked up and branded as
a culprit and then the gravity of the offence
arousing human sympathy persuading the mind
to be carried away by doubtful or dubious
circumstances treating them as of ” beyond
doubt” evidentiary value.”
19. For the aforesaid reasons, we find it extremely
difficult to place reliance on the testimonies of these four
witnesses. For the same reasons we are unable to accept the
testimony of Vijay Pajgade (P.W. 12) who has been examined
to prove the purchase of match box by the accused on
2.1.2001. We find that in large number of Sessions Trials the
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deposition of the investigating officers is cryptic and the
investigating officers do not depose as to various steps taken
by them during the investigation which would throw light on
the various aspects of investigation. In the present case, may
be that upon interrogation of the accused the investigating
officer came to know about the purchase of above referred
articles from various witnesses but in the absence of any
evidence coming from the investigating officer we find it
extremely difficult to place reliance on their evidence.
Therefore, in our considered opinion, the prosecution has not
been able to purchase of all the above referred articles by the
accused from the above mentioned witnesses.
20. The next circumstances relied upon by the
prosecution is that on 2.1.2001 the accused made a call from
S.T.D./P.S.O. Shop of Rathi in Dava Bajar, Yavatmal at about
1.30 to 2.00 p.m. . To prove this circumstance the
prosecution examined Sapna Shukla (P.W. 10) who at the
relevant time was serving in S.T.D. Shop of Rathi. She deposed
that on 2.1.2001 she was on duty in the telephone booth in the
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entire day and the accused came to the booth at about 12
O’clock and he told her that Bittu son of his landlord was
kidnapped and he also told her that she should not come to
his house and left the booth. Thereafter, at about 1.30 to 2.00
p.m. accused again came to the shop and gave a ring from the
phone box kept outside the P.C.O. cabin. The witness deposed
that the accused again came to the shop at about 7.00 a.m. on
3.1.2001. She further deposed that she inquired from him as to
why he had come so early to which he stated that he had come
from Mandev by auto and that he had gone to Mandev with
his friend. She further deposed that he thereafter offered a
match stick to light scented stick. The witness deposed that
she told him that they will have tea but the accused appeared
to be scared and told her that he will not take tea. The witness
deposed that accused was in a frightened condition. The
witness further deposed that on 15.1.2001 she along with
Vaishali Gavai went to Mahur and performed marriage. She
further deposed that on 17.1.2001 police arrested her and
Vaishali and brought them to Yavatmal. Both of them were
interrogated by the police and she informed the police that
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they did not know about incident and thereafter they were
released. She narrated the incident to the police on 19.2.2001
and to the police that she suspected Dinesh and on the same
day her statement was recorded. We are unable to accept her
testimony regarding making of phone call by accused on
2.1.2001 inasmuch as the witness candidly admitted that till
19.2.2001 she did not tell anybody that she suspected the
accused Dinesh. Moreover, witness was herself suspected to
be involved in the offence of kidnapping of the child and was
arrested. We are, therefore, unable to hold that the
prosecution has been able to establish the circumstance that
on 2.1.2001 the accused had given a phone call from the booth
where Sapna Shukla was serving.
21. The next circumstance relied upon by the
prosecution is discovery of spot at the instance of the accused
where burnt ash,bones and other articles were found. To
prove this fact, the prosecution examined Ganesh Bayas (P.W.
2) one of the panchas to the memorandum statement and
consequential discovery of the spot where burnt ash, bones
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and other articles were found. P.W. 2 Ganesh Bayas deposed
that on 21.2.2001 he noticed rush of people in front of the
police station and he was asked by P.S.O. to be a panch for
which he initially refused but later on acceded to the request
of police inspector. He further deposed that another panch
Narayan was with him at that time. He further deposed that in
his presence P.S.O. asked the accused as to what he had done
to which he agreed to show the spot where dead body of Bittu
was burnt on 3.1.2001 in the morning. He further deposed
that the statement was recorded in his presence which was
also signed by the accused. He identified the signature on the
memorandum (Exh. 65). Thereafter, he along with the
accused and P.I. , Gajanan Ampalliwar (P.W. 23) and other
staff proceeded to Mandeo fields which is on Arni Road. After
crossing Mandeo temple, accused Dinesh asked the driver to
slow the vehicle and thereafter accused Dinesh directed to
take the vehicle by old road. Accordingly, the jeep was taken
towards the old road as direction of the accused.. After
crossing 300 to 400 meters distance they crossed Hanuman
temple. Accused asked the driver to stop the jeep which was
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stopped. He along with the police and accused got down from
the jeep. Dinesh thereafter led them to the spot which was to
the western side of the Hanuman Temple at a distance of
about 50 to 60 meters near babul tree. On the spot they
found half burnt pieces of wood which were like padpas and
there were other burnt pieces of wood. Some pieces of burnt
gunny bags were also found on the spot. The accused and
police tried to trace out the burnt pieces of bones from the
ash. Some pieces of bones were traced out from the ash.
Police separated the bones and kept in one pocket and
thereafter collected ash and kept in different pocket. The
burnt pieces of wood and burnt pieces of gunny bag were put
in another pocket. All these articles were seized by the police
and their signatures were obtained on the sealed pockets and
police also seized sample of earth at the distance of about 10
to 15 meters from the spot. He further deposed that the police
prepared seizure panchanama of all the articles in their
presence and in presence of other panchas. He identified his
signature on the panchanama and that he further stated that
panchanama also bears the signature of accused and P.I.,
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Gajanan Ampalliwar (P.W. 23). He deposed that the contents
of the panchanama (Exh. 66) were true and correct. He
identified the seizure panchanama (Exh. 67). He further
deposed that thereafter they returned back to the Police
Station, Yavatmal City. In the cross-examination of this
witness nothing tangible has been brought on record to
discredit his testimony. The evidence of this witness clearly
establishes that at the instance of the accused the police were
taken to the spot where burnt ash, bones and burnt pieces of
wood and gunny bags were found on the spot which was near
Hanuman Temple situated at Mandev.
22. In order to prove that the bones recovered at the
instance of the accused were of the biological Shreyas the
prosecution examined G. Venkateshwar Rao (P.W. 22) who
the relevant time was serving as Chief of DNA Lab at
Hyderabad. He deposed that he was Chief D.N.A. Lab at
Hyderabad. He deposed that he was P.H.D. in Forensic
aspects of DNA Finger printing and he had done his Post
Doctorate in the same from C.C.M.B. Hyderabad. He further
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deposed that he had given opinion in an around 1400 cases
from India and abroad and he had experience of about 13
years in examination of biological samples recovered in
different crimes. Since 1996 he was working in the institution
which was a Department of Government of India which is
autonomous centre of Department of Bio-technology,
Minister of Science and Technology, Government of India.
23. He further deposed that on 15.3.2001 he received
articles from the Superintendent of Police, Yavatmal City in
connection with the crime No. 4/2001 of Yavatmal City to
establish the identify of deceased with controlled blood
samples of the father and mother of the deceased. He further
deposed that the mother and father of deceased came in
person to C.D.F.D., Hyderabad and their blood samples were
collected in the Lab. He identified the requisition form Exh.
137 which was sent by S.P. Yavatmal. He further deposed that
the blood samples of Prakash Khole and Sunita Khole were
collected on the same day after completing necessary
formalities. He further deposed that the examination of DNA
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finger printing in this case commenced on 30th April, 2001 and
ended on 30th August, 2001. He was assisted by Mrs. Varsha
who was working as Scientist in the Lab. During the detailed
examination of the burnt bones, he found certain small pieces
of unburnt bone with bone marrow attached to it. After
conducting DNA test he opined that on comparison of the
DNA finger print of the source of Exhibit B (femur bone) with
the D.N.A. Fingerprints of the sources of Exhbits A and C
(blood samples ofSmt. Sunita PrakashKhole and Mr. Prakash
Khole respectively. He identified his signature on the report
Exh. 138 and also photograph of the result obtained as figure
one under enclosure one. It is at Exh. 138-A. He also identified
his signature and confirmed its contents as true and correct.
He further deposed that he had come to the conclusion that
the source of Exh. B i.e. Fumur bone is biological offspring of
the sources of Exhibiits A and C. In the cross examination of
this witness nothing tangible has been brought on record to
discard his testimony. In the cross-examination he admitted
that if the bone is reduced to ash no DNA can be collected. He
further deposed that in the present case bone appeared to be
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completely burnt but was not in ash form and he had found
few unburnt pieces of bones. He further admitted that he had
not mentioned in the report that DNA was of male or female.
There is absolutely no reason to discard the opinion of this
expert witness who has deposed in detailed as to on what basis
he has come to the conclusion that the bones were of
biological child of Prakash Khole and Sunita Khole. Thus, the
prosecution has been able to prove that the bones which were
found on the spot which was pointed out by the accused were
of bilological child of Prakash and Sunita Khole.
24. The evidence of Dr. Hemant Godbole (P.W. 11) is not
of much help to the prosecution inasmuch as initially the
packet containing the bones was submitted to him for his
opinion and he advised to refer the bones to C.A. Nagpur and
he further advised that for answering certain queries the bones
be referred to DNA test. The cross-examination of this witness
also lends assurance to the prosecution case and they were
pieces of bones which were forwarded to him for his opinion.
Thus, the prosecution has been able to establish that the
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bones at the spot which was pointed out by the accused, were
of the biological child of Prakash and Sunita Khole.
25. We have held that the prosecution has been able to
establish that ash, burnt pieces of wood were found at the
spot pointed out by the accused. No doubt the accused during
the trial denied to have made any statement pursuant to
which all these articles were found and seized. However, we
have already accepted the version of the panch witness
Ganesh Bayas (P.W. 2) which has been corroborated by the
P.I., Mr. Gajanan Ampalliwar (P.W. 23). At this stage we would
like to consider as to what inference we can draw from the act
of the accused pointing out the spot where burnt ash, bones
and other articles were found. We have already held that the
prosecution has been able to establish that the bones found on
the spot were of biological child of Prakash and Sunita Khole.
In view of this position, there are three possibilities; one is that
the body of the child Shreyas was either burnt by the accused
or he had seen somebody else doing it or that somebody told
him that it was brunt at the spot. The Apex Court in the case of
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State of Maharashtra vs. Suresh (2000) 1 Supreme Court
Cases, 471) held that when the accused points out the place of
dead body or an incriminating material was concealed without
stating that it was concealed by him there are three
possibilities. One is that he himself would have concealed it,
second is that he would have seen somebody else concealing it
and the third is that he would have been told by another
person that it was concealed there. But when the accused
declines to tell the criminal court his knowledge about the
concealment was on account of one of the last two
possibilities, the criminal court can presume that it was
concealed by the accused himself. This is because the accused
is the only person who can offer the explanation as to how else
he came to know of such concealment and if he chooses to
refrain from telling the court as to how else he came to know
of it, the presumption is a well justified course to be adopted
by the criminal court that the concealment was made by him.
The Apex Court further held that such an interpretation is not
inconsistent with the principle embodied in Section 27 of the
Evidence Act. In our considered opinion the ratio laid down in
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the case of Suresh (supra) is squarely applicable in the present
case. Therefore, in the absence of any explanation coming
from the accused during the trial the only legitimate inference
that can be drawn that it was the accused who burnt the body
of Shreyas who was found missing on 2.1.2001.
26. Insofar as eighth circumstance is concerned the C.A.
Report Exh. 151 relied upon by the prosecution discloses that
residues of kerosene were found on the ash, half burnt gunny
cloth pieces and earth wrapped from the spot. This is also an
incriminating circumstance which stands proved by the C.A.
Report.
27. Thus, the evidence of prosecution has been able to
establish the circumstance nos. (i), (ii), (iii), (vi), (vii) (viii) and
(ix) mentioned in paragraph 10 hereinabove.
28. We shall now deal with the authorities cited by Mr.
Patwardhan, the learned counsel for the applicant. In the case
of Mahmood (supra), the Apex Court has laid down the tests
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which are to be satisfied before recording conviction based on
the circumstantial evidence. The Apex Court has held that
before recording conviction on the basis of circumstantial
evidence the circumstances from which the inference is to be
drawn have to be fully established beyond a shadow of doubt
and the circumstances must unerringly point towards the guilt
of the accused and that the circumstances, taken collectively
must be incapable of explanation on any reasonable
hypothesis save that of the guilt sought to be proved against
him. In Bakshish Singh (supra) the Apex Court has also
considered the nature of the evidence required for conviction
of the accused in a case based on circumstantial evidence. In
Premjibhai Khasiya (supra) the Division Bench of the Gujrat
High Court has held that positive DNA report can be of great
significance where there is supporting evidence but same can
not be accepted in isolation. This judgment does not advance
the case of the accused inasmuch as in the present case DNA
report is corroborated by other circumstantial evidence. In
the case of Ashish Batham (supra) the Apex Court reiterated
the principles laid down by the Apex Court in various cases
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including the case of Hanumant Govind Nargundkar. The
Apex Court further held that suspicion however strong is not
substitute for legal proof and the courts have to keep in mind
that there lies long mental distance between ‘may be’ and
‘must be true’.
While appreciating the prosecution evidence we
have appreciated the evidence in the light of the principles laid
down by the Apex Court in various Judgments dealing with the
case based on circumstantial evidence.
29. In our considered opinion the circumstances proved
by the prosecution conclusively establish that it was the
accused who burnt the dead body of Shreyas by taking it to the
jungle in a gunny bag and setting the gunny bag on fire after
pouring kerosene on it. If these circumstances are proved the
only legitimate inference that can be drawn is that the accused
burnt dead body of Shreyas after committing his murder.
There is absolutely no explanation coming from the accused
as to in what circumstance he burnt the dead body of Shreyas.
Therefore, the only legitimate inference that can be drawn is
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initially he kidnapped Shreyas with a view to demand ransom
from his parents and since Rambhau called Shreyas to take
him to School the accused pressed his nose and mouth which
resulted in his death. Thereafter, the accused took the dead
body to the Mandev jungle in gunny bag and set it on fire.
30. The prosecution has challenged acquittal of the
accused under Sections 363 and 364 of the Indian Penal Code.
The prosecution evidence to which we have already made
reference clearly suggests that the accused had taken Shreyas
in the house with a view to demand ransom from his father
and when Rambhau called Shreyas to take him to school the
accused pressed his nose and mouth resulting his death. It is
only thereafter that the accused burnt the dead body of
Shreyas by taking it in Mandev jungle. This being the position
the offence under Section 364 of the Indian Penal Code is not
attracted. Section 364 of the Indian Penal Code is attracted
when a person is kidnapped or abducted in order that such
person may be murdered or may be so disposed of as to be
put in danger of being murdered. In the present case, the
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prosecution evidence suggests that the accused kidnapped
the child with a view to demand ransom but on account of
pressing of mouth and nose of the child, he died. It was only
thereafter his dead body was burnt. Therefore, Section 364 of
the Indian Penal Code is not attracted in the present case.
However, we find it extremely difficult to sustain the finding
of the trial court that Section 363 is not attracted in the present
case. Once it is held that it was the accused who burnt the
dead body of Shreyas by taking it to Mandev Jungle the
necessary inference which can be drawn is that he had
kidnapped the child for ransom. Therefore, the offence under
Section 363 of the Indian Penal Code is clearly made out
against the accused. Insofar as the Judgment of the Apex
Court in Sucha Singh (supra) relied upon by the learned A.P.P.
is concerned, the same is not directly attracted in the present
case. In the case of Sucha Singh the Apex Court held that if a
person who is abducted is found dead soon thereafter
depending upon the factual situation the court can draw
presumption that all the abductors are responsible for murder
unless abductors otherwise to Court as to what else they did
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with victim. In the present case the trial court held the accused
guilty for the offence of murder but acquitted him for the
offence of kidnapping. We have already held that the acquittal
of the accused for the offence under Section 363 is
unsustainable in law. Therefore, the accused is also liable to be
convicted for the offence punishable under Section 363 of the
Indian Penal Code.
31. For the reasons aforesaid the Criminal Appeal No.
198/2004 filed by the accused is dismissed and conviction and
sentence imposed by the trial court is maintained. Criminal
Appeal No. 345/2004 filed by the State is partly allowed. The
acquittal of the accused for the offence punishable under
Section 363 of the Indian Penal Code is quashed and set aside
and accused is convicted for the offence punishable under
Section 363 of the Indian Penal Code and sentenced to
undergo to R.I. for five years and to pay a fine of Rs. 5000/-
and in default to undergo R.I. for one year. Both the sentences
are ordered to run concurrently.
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Both the criminal appeals are disposed of
accordingly.
32. Fees payable to Advocate Mr. R.M.Patwardhan who
has been appointed to appear on behalf of the accused in
Criminal Appeal No. 198/2004 are quantified at Rs. 3000/-.
JUDGE JUDGE
patle
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