{"id":41842,"date":"2009-12-19T00:00:00","date_gmt":"2009-12-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dinesh-vs-state-of-maharashtra-on-19-december-2009"},"modified":"2019-01-16T10:04:43","modified_gmt":"2019-01-16T04:34:43","slug":"dinesh-vs-state-of-maharashtra-on-19-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dinesh-vs-state-of-maharashtra-on-19-december-2009","title":{"rendered":"Dinesh vs State Of Maharashtra on 19 December, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dinesh vs State Of Maharashtra on 19 December, 2009<\/div>\n
Bench: A. P. Lavande, Prasanna B. Varale<\/div>\n
                                                         1\n\n\n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n\n\n\n\n                                                                                                \n                      NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                                      \n                                 Criminal Appeal No.  198\/2004\n\n\n     Dinesh s\/o Ruprao Band,\n\n\n\n\n                                                                     \n     aged about 23 years,\n     resident of  Yavatmal,\n     Tahsil and District Yavatmal\n     (Presently in Jail).\n\n\n\n\n                                                    \n                                                                                  .. . Appellant  \n                .VERSUS.      \n     State  of Maharashtra,\n                             \n     through the Police Station Officer,\n     Police Station Yavatmal City,\n     District: Yavatmal.\n      \n\n\n                                                                                                ... Respondent\n                                                                ....\n   \n\n\n\n     Mr. R.M. Patwardhan, Advocate (appointed ) for the appellant.\n     Mr. T.A. Mirza, A.P.P. for the respondent.\n                                                                 .....\n\n\n\n\n\n                                      Criminal Appeal No. 345\/2004\n\n     The State of Maharashtra,\n     Through P.S.O. Yavatmal.\n\n\n\n\n\n                                                                                  .....Appellant.\n               .Versus.\n\n     Dinesh Ruprao Band,\n     aged 24 years,\n     Resident of Yavatmal,\n     District: Yavatmal.                                               ....  Respondent.\n\n\n\n\n                                                                      ::: Downloaded on - 09\/06\/2013 15:27:17 :::\n                                              2\n\n\n                                    .....\n\n\n\n\n                                                                               \n     Mr. T.A. Mirza, learned A.P.P. for the appellant.\n     Mrs. U.K. Kalsi, Advocate for the respondent.\n                                    .....\n\n\n\n\n                                                       \n               \n             CORAM     :       A.P. LAVANDE & PRASANNA B. VARALE, JJ \n\n\n\n\n                                                      \n               DATE  OF  RESERVING                              :    02.12..2009  \n                DATE OF PRONOUNCEMENT              :    19.12.2009\n\n\n      JUDGMENT (PER A.P.LAVANDE, J)\n<\/pre>\n
                   Both   these   appeals   are   being   disposed   of   by <\/p>\n
     common Judgment since they   arise out of the Judgment and <\/p>\n
     order   dated   30th  December,   2003   passed   by   the   2nd  Ad   hoc <\/p>\n
     Additional   Sessions   Judge,   Yavatmal   in   Sessions   Trial   No. <\/p>\n
     126\/2001.  By the impugned Judgment and order the appellant <\/p>\n
     in   Criminal   Appeal   No.   198\/2004   (hereinafter   referred   to   as <\/p>\n
     ‘the accused’) has been convicted for the offence punishable <\/p>\n
     under   Sections   302   and   201   of   the   Indian   Penal   Code   and <\/p>\n
     sentenced to suffer imprisonment for life and to pay a fine of <\/p>\n
     Rs.   1000\/-   in   default   to   undergo   R.I.   for   six   months   and   to <\/p>\n
     suffer R.I. for seven years and also to pay a fine of Rs. 1000\/- in <\/p>\n
     default to undergo R.I. for three months respectively.  Both the <\/p>\n
     sentences have been ordered to run concurrently.  By the said <\/p>\n
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\n                                              3<\/span><\/p>\n
     Judgment   the   appellant   who   was   the   original   accused   no.1 <\/p>\n
     before   the   trial   court   has   been   acquitted   of   the   offences <\/p>\n
     punishable   under   Sections   363   and   364   of   the   Indian   Penal <\/p>\n
     Code.   By the said Judgment the original accused no.2 Vinod <\/p>\n
     Ruprao Band and original accused no. 3 Smt. Kusum Ruprao <\/p>\n
     Band have been acquitted for the  offences punishable under <\/p>\n
     Sections   363,   364,   302   and   201   read   with   Section   34   of   the <\/p>\n
     Indian  Penal  Code.  Criminal  Appeal   No.  198\/2004  has  been <\/p>\n
     filed by the accused challenging his conviction and sentence <\/p>\n
     imposed upon him whereas the Criminal Appeal No. 345\/2004 <\/p>\n
     has   been  filed  the  State  challenging   the  acquittal   of  the  the <\/p>\n
     accused for the offences punishable under Sections 363 and <\/p>\n
     364 of the Indian Penal Code.\n<\/p>\n
     2.          Briefly, the prosecution case is as follows:\n<\/p>\n
                 Informant   Sunita   Khole   and   her   husband   Prakash <\/p>\n
     Khole   own   their   house   at   Pachgade   Layout,   Bhosa   Road, <\/p>\n
     Yavatmal.   They were residing with their two   sons   Swapnil <\/p>\n
     and Shreyash @ Bitu, daughter Neha   and parents of Prakash <\/p>\n
     Khole.   Shreyash at the relevant time was   one year and ten <\/p>\n
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\n                                             4<\/span><\/p>\n
     months old and used to go to the School.  Prakash along with <\/p>\n
     his  family  used to live  on the first floor of the house and five <\/p>\n
     tenants were occupying different blocks on the ground floor of <\/p>\n
     the said house. Accused Dinesh and his  brother Vinod are the <\/p>\n
     sons of Kusum who were arrayed as accused 1 to 3 respectively <\/p>\n
     in   the   trial.   The   block   occupied     by   the   three   accused   was <\/p>\n
     adjacent to the stair case by which informant and her family <\/p>\n
     members   used   to   pass.   Prakash     Khole     was   having   vehicle <\/p>\n
     Tata Sumo which was being driven by driver Nandu. About ten <\/p>\n
     days before the incident which occurred on 2.1.2001 Prakash <\/p>\n
     Khole had sold the said vehicle and he was in possession of the <\/p>\n
     substantial  cash  generated  from the sale of the said vehicle.\n<\/p>\n
     Rambhau Khole father of Prakash  Khole used to take deceased <\/p>\n
     Shreyash  and Swapnil Khole to the School in which they were <\/p>\n
     studying.\n<\/p>\n
     3.          On 2.1.2001 at about 11.15 a.m.  as usual Swapnil got <\/p>\n
     down   from   the   first   floor   and   on   seeing   him   Rambhau <\/p>\n
     enquired as to where Shreyash was to which Swapnil replied <\/p>\n
     that Shreyash had already got down.  Rambhau called name of <\/p>\n
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\n                                              5<\/span><\/p>\n
     Shreyash  and  since   he  was  not  traceable,  searched  for  him.\n<\/p>\n
     Since Shreyas was missing there was commotion in the house.\n<\/p>\n
     Everybody started searching for him. They started inquiry with <\/p>\n
     the  driver   Nandu  and  also   made  inquiries  from   the  tenants <\/p>\n
     including all the three accused but they claimed that they had <\/p>\n
     not seen   Shreyas.   At about 1.30 p.m. on the same day there <\/p>\n
     was   a   phone   call   received   at   the   house     of   the   informant <\/p>\n
     stating that Shreyas was safe and they should come to Nasik <\/p>\n
     S.T.   Stand   to   collect   him.   Therefore,   Sunita   Khole   lodged <\/p>\n
     report about missing of her child and about the phone call to <\/p>\n
     Police  Station, Yavatmal City.   Police registered  the offences <\/p>\n
     under Sections 363 and 364 of the Indian Penal Code against <\/p>\n
     unknown persons. Police went to the spot and prepared spot <\/p>\n
     panchanama.   Investigation   was   taken   up.   During   the <\/p>\n
     investigation   statements  of  several   witnesses  were  recorded.\n<\/p>\n
     In   the   course   of   investigation   it  transpired   that   there   was   a <\/p>\n
     love   affair   between   accused   Dinesh   and   Vaishali   Gavai   who <\/p>\n
     was staying on the ground   floor as tenant.   On 15.1.2001 the <\/p>\n
     police  came  to know that   Vaishali  Gavai and Sapna Shukla <\/p>\n
     who was working in the S.T.D. Booth had run away from their <\/p>\n
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\n                                            6<\/span><\/p>\n
     homes and got married by going to Temple  at Mahur.  Police <\/p>\n
     suspected that both these ladies might have been involved in <\/p>\n
     kidnapping  of Shreyas since both them could not have a son <\/p>\n
     of their own. Both of them were arrested by the Police but after <\/p>\n
     few days they were released.       Sapana Shukla suspected that <\/p>\n
     accused Dinesh was involved in kidnapping of the child. Upon <\/p>\n
     suspicion Dinesh- the accused was arrested. While in custody <\/p>\n
     he made a statement pursuant to which the spot from where <\/p>\n
     the   dead   body   of   Shreyas   which   was   burnt,   ash,   pieces   of <\/p>\n
     bones and wood etc. were  discovered near  the Babul tree in <\/p>\n
     the Mandev forest. The Police found ash and pieces of bones, <\/p>\n
     pieces of   logs of wood and padpas which were partly burnt <\/p>\n
     and also unburnt pieces of gunny bags. Police prepared spot <\/p>\n
     panchanama   and   seized   these   articles   found   on   that   spot.\n<\/p>\n
     During     investigation   it   was   revealed   that   the   accused   had <\/p>\n
     purchased   pieces of woods, padpas, petrol , match box and <\/p>\n
     rock oil for the purpose of burning the dead body of Shreyas.\n<\/p>\n
     The statements of the persons from whom he had purchased <\/p>\n
     these articles were recorded. The Police sent pieces of bones to <\/p>\n
     the     medical   expert     to   enquire   whether   they   belonged   to <\/p>\n
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\n                                             7<\/span><\/p>\n
     human   being   and   whether   any   test   like   C.   A.   analysis   and <\/p>\n
     D.N.A. Test was necessary.   Doctor informed the police that <\/p>\n
     D.N.A. Test in respect of the bone was necessary.  The  police <\/p>\n
     accordingly   informed   the   informant   and   her   husband     –\n<\/p>\n
     parents   of   the   deceased   Shreyas   to   accompany   them   to   the <\/p>\n
     Laboratory   at   Hyderabad.     The   parents   of   Shreyas   went   to <\/p>\n
     Hyderabad   with   police.   The   Chief   of   the   Laboratory   at <\/p>\n
     Hyderabad after  conducting D.N.A. test with the help of bones <\/p>\n
     and blood samples, came to the conclusion that bones were of <\/p>\n
     the     biological   offspring   of   complainant   and   her   husband <\/p>\n
     Prakash.     Police   collected   certificate   from   the   Laboratory   at <\/p>\n
     Hyderabad. The police seized auto-rickshaw which was used <\/p>\n
     by   Dinesh   to   carry   out   the   dead   body   of   the   child.   Seized <\/p>\n
     articles   were   sent   for   analysis   to   C.A.   Nagpur.     During <\/p>\n
     investigation, the investigating officer came  to  the conclusion <\/p>\n
     that accused Dinesh with the help of his brother Vinod and <\/p>\n
     mother Kusum had kidnapped the child Shreyas while he was <\/p>\n
     getting down from his house to go to the School and dragged <\/p>\n
     him to their block and to prevent him from shouting his neck <\/p>\n
     and mouth were pressed due to which he died. The accused in <\/p>\n
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\n                                            8<\/span><\/p>\n
     order to destroy the evidence in the matter   burnt the dead <\/p>\n
     body   of   Shreyas   by   taking   it   to   the   Mandev   Jungle.\n<\/p>\n
     Accordingly     the   charge   sheet   for   the   offences   punishable <\/p>\n
     under Sections 363, 364, 302 and 201 read with Section 34 was <\/p>\n
     filed   against   the   three   accused   before   the   Chief   Judicial <\/p>\n
     Magistrate, Yavatmal.\n<\/p>\n
     4.<\/p>\n
                 Since the offence punishable under Sections 364 and <\/p>\n
     302 of the Indian Penal Code were exclusively triable by the <\/p>\n
     Court   of   Sessions,   the   case   was   committed   to   the   Court   of <\/p>\n
     Sessions,   Yavatmal   who   made   it   over   to   the   Additional <\/p>\n
     Sessions Judge, Yavatmal.  All the three accused were charged <\/p>\n
     for the offences punishable under Sections 363, 364, 302 and <\/p>\n
     201   read   with   Section   34   of   the   Indian   Penal   Code.   The <\/p>\n
     accused   pleaded   not   guilty   and   claimed   to   be   there.   The <\/p>\n
     defence of the accused was of total denial.\n<\/p>\n
     5.          In order to prove the charges against all the accused <\/p>\n
     the   prosecution   examined  in  all  twenty   three  witnesses  and <\/p>\n
     produced several documents. The learned Additional Sessions <\/p>\n
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\n                                         9<\/span><\/p>\n
     Judge, upon appreciation of evidence convicted the appellant <\/p>\n
     original   accused   no.1     for   the   offence   punishable   under <\/p>\n
     Sections 302 and 201 of the Indian Penal Code and acquitted <\/p>\n
     him for the offences punishable under Sections 363 and 364 of <\/p>\n
     the Indian Penal Code.  All other two accused were acquitted <\/p>\n
     of the offences for which they were charged.\n<\/p>\n
     6.<\/p>\n
                Mr. Patwardhan, learned counsel for the accused in <\/p>\n
     Criminal   Appeal   No.   198\/2004   submitted   that   there   is   no <\/p>\n
     cogent   evidence   led   by   the   prosecution   to   prove   the <\/p>\n
     complicity of the accused in the commission of the crime. The <\/p>\n
     learned   counsel   further   submitted   that   the   motive   for <\/p>\n
     commission   of   the   crime   by   the   accused   has   not   been <\/p>\n
     established and there is absolutely no evidence on record to <\/p>\n
     establish that the accused had   knowledge about sale of the <\/p>\n
     vehicle by the father of deceased Shreyas. The learned counsel <\/p>\n
     further submitted that the conduct of the accused soon after <\/p>\n
     Shreyas   was   missing   was   consistent   with   his   innocence <\/p>\n
     inasmuch as the accused himself  participated in the search of <\/p>\n
     missing Shreyas.   According to Mr. Patwardhan, discovery of <\/p>\n
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\n                                           10<\/span><\/p>\n
     the spot where burn ashes and bones were found  allegedly at <\/p>\n
     the   instance   of   the   accused   has   not   been   proved   by   the <\/p>\n
     prosecution   and   moreover  DNA   test  does  not  establish  that <\/p>\n
     the bones were of biological child   of Prakash Khole and his <\/p>\n
     wife   Sunita   Khole.     He   further   submitted   that   the   evidence <\/p>\n
     relied upon by the trial Judge regarding purchase of kerosene, <\/p>\n
     match box,  wood allegedly used by the accused in setting fire <\/p>\n
     to   the   dead   body   of   Shreyas   does   not   inspire   confidence <\/p>\n
     inasmuch   as   all   these   witnesses   were   not     knowing   the <\/p>\n
     accused prior to the incident and no identification parade  was <\/p>\n
     held to get the accused identified by all these witnesses. Mr. <\/p>\n
     Patwardhan   further   submitted   that   the   circumstantial <\/p>\n
     evidence led by the prosecution is not sufficient to connect the <\/p>\n
     accused   with   the   crime   of   murder   of   Shreyas   beyond <\/p>\n
     reasonable  doubt and as such conviction of the accused  for <\/p>\n
     the offence punishable under Section 302 of the Indian Penal <\/p>\n
     Code is unsustainable in law.   In support of his submissions, <\/p>\n
     the learned counsel relied upon the following Judgments;\n<\/p>\n
           i)    Mahmood   vs. State of Uttar Pradesh\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 15:27:17 :::<\/span>\n                                         11<\/span>\n\n\n               1976 CRI. L.J.. 10.\n\n\n\n\n                                                                        \n        ii)   Bakshish Singh vs. The State of Punjab\n\n\n\n\n                                                \n               1971 CRI. L.J., 1452;\n\n\n\n\n                                               \n        iii)    Premjibhai Bachubhai Khasiya  vs. Sate of Gurarat \n\n                and another.\n\n\n\n\n                                      \n                 2009 CRI. L.J., 2888;\n                    \n        iv)      Ashish Batham vs. State of Madhya Pradesh<\/a> \n\n                    2002 CRI. L.J.  4676.\n                   \n\n<\/pre>\n
     7.         Per contra, Mr. T.A.Mirza, learned A.P.P. appearing <\/p>\n
     on behalf of the State submitted that  the conviction of the <\/p>\n
     accused for the offence   punishable under Section 302 of <\/p>\n
     the Indian Penal Code does not warrant any interference by <\/p>\n
     this Court since circumstantial evidence unerringly points <\/p>\n
     to   the guilt of the accused and the tests laid down by the <\/p>\n
     Apex Court for recording conviction of the accused based <\/p>\n
     on   circumstantial   evidence   have   been   satisfied   in   the <\/p>\n
     present   case.     Mr.   Mirza,   therefore,   submitted   that     the <\/p>\n
     circumstances in no uncertain terms  establish the guilt of <\/p>\n
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\n                                        12<\/span><\/p>\n
        the accused.\n<\/p>\n
     8.          Mr. Mirza  in support of Criminal Appeal No. 345\/2004 <\/p>\n
     preferred by the State   submitted that the learned Additional <\/p>\n
     Sessions Judge having found that the accused had committed <\/p>\n
     murder   of   deceased   Shreyas   ought   to   have   convicted   the <\/p>\n
     accused for the offence   punishable under Section 364 of the <\/p>\n
     Indian   Penal   Code   inasmuch   as   it   is   inconceivable   and <\/p>\n
     impossible that the accused could commit murder of Shreyas <\/p>\n
     without kidnapping him having regard to the fact that Shreyas <\/p>\n
     was hardly two years old at the time of the incident.   Mr. Mirza <\/p>\n
     further submitted that the accused having been found to have <\/p>\n
     murdered the deceased the only conclusion that can be drawn <\/p>\n
     is he committed  murder after kidnapping  the child  Shreyas.\n<\/p>\n
     He, therefore, submitted that the acquittal of the accused  for <\/p>\n
     the offence punishable under Section 364 of the Indian Penal <\/p>\n
     Code is liable to beset aside. In support of his submission, Mr. <\/p>\n
     Mirza relied upon the Judgment of the Apex Court in   Sucha <\/p>\n
     Singh vs. State of Punjab (AIR<\/a> 2001 Supreme Court, 1436.\n<\/p>\n
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\n                                           13<\/span><\/p>\n
     9.              Mrs. Kalsi, learned counsel appearing for the accused <\/p>\n
     in   Criminal   Appeal   No.   345\/2004   preferred   by   the   State <\/p>\n
     submitted   that   there   is   absolutely   no   evidence   led   by   the <\/p>\n
     prosecution   to   establish   the   offence   of   kidnapping   against <\/p>\n
     him. She, therefore, submitted that the appeal preferred by the <\/p>\n
     State against the acquittal of the accused for the offence under <\/p>\n
     Section 364 is liable to be set aside.\n<\/p>\n
     10.        We have carefully considered the rival submissions, <\/p>\n
     perused the record and the Judgments relied upon. In order to <\/p>\n
     prove   the   offences   of   murder   and   kidnapping   against   the <\/p>\n
     accused   the   prosecution   has   relied   upon   the   following <\/p>\n
     circumstances.\n<\/p>\n
           i)         Victim Shreyas was found missing at about 11.30
\n           a.m. on 2.1.2001 and thereafter he was never traced;\n<\/p>\n
           ii)         Accused was knowing that Prakash Khole (P.W.7)
\n           had sold his  four wheeler and substantial cash received
\n           from the sale was with him.\n<\/p>\n
           iii)      Motive.  The accused had kidnapped Shreyas with <\/p>\n
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\n                                           14<\/span><\/p>\n
           a view to compel his parents to pay ransom;\n<\/p>\n
           iv)        Purchase of petrol, rock oil,   match box and fire <\/p>\n
           wood by the accused on the date of incident.\n<\/p>\n
           v)    Phone call was made by the accused at S.T.D. Centre
\n           on 2.1.2001 at Yavatmal.\n<\/p>\n
           vi)    Discovery of spot where  burnt ash and bones and <\/p>\n
           other articles were found at the instance of the accused.\n<\/p>\n
           vii)     D.N.A.   Test   conducted   by   G.   Venkateshwar   Rao
\n           (P.W.22) discloses that the bones were of the biological
\n           child of Prakash Khole and Mrs. Sunita Khole.\n<\/p>\n
             viii)   C.A. Report discloses the presence of kerosene on
\n           the ash, pieces of half burnt  gunny bag and earth.\n<\/p>\n
           ix)        Spot panchanama.\n<\/p>\n
     11.                   Insofar as the first circumstance is concerned, the <\/p>\n
     same is not seriously in dispute. The evidence of Sunita Khole <\/p>\n
     (P.W.1)   discloses   that   on   2.1.2001   she   was   residing   in   her <\/p>\n
     residential house at Yavatmal with her husband, children and <\/p>\n
     in – laws.  She had three children viz. Neha, Swapnil and Bittu <\/p>\n
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\n                                             15<\/span><\/p>\n
     @ Shreyas. Her evidence also discloses that they were residing <\/p>\n
     on   the   first   floor   and   on   the   ground   floor   there   were   five <\/p>\n
     tenants  occupying  five different blocks.   The family  of Band <\/p>\n
     was staying as tenant on the ground floor. The accused along <\/p>\n
     with his brother Vinod and mother Kusum were staying in one <\/p>\n
     block consisting of two rooms. They were staying just near the <\/p>\n
     stair case and in front of their home there was a porch. At the <\/p>\n
     relevant time her husband was serving  at Parva. On the day of <\/p>\n
     incident here husband left for Parva at 8 a.m.  Her son Swapnil <\/p>\n
     and Shreyas were in the house  and daughter Neha had gone <\/p>\n
     to the school.   Her father-in-law Rambhau was in the house.\n<\/p>\n
     At about 11.15 a.m. her father-in-law came in the porch for <\/p>\n
     taking Swapnil to the School and thereafter he went to toilet <\/p>\n
     and removed his scooter outside the house. He called Swapnil <\/p>\n
     for going   to the School.   Since Shreyas @ Bitu had not come <\/p>\n
     along   with   Swapnil,   Rambhau   inquired   from   Swapnil   as   to <\/p>\n
     why Bittu had not come down to which Swapnil told him that <\/p>\n
     Bittu had already come down from the first floor and he had <\/p>\n
     followed   him   (Rambhau).   Thereafter,   Rambhau     started <\/p>\n
     searching Bittu and started calling his name but Bittu could <\/p>\n
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\n                                           16<\/span><\/p>\n
     not be traced. Thereafter her mother-in-law   told her to stop <\/p>\n
     collecting  water and to  search  Bittu.  She also came down on <\/p>\n
     the   ground   floor   and   started   searching     Bittu.   The   children <\/p>\n
     present there told her that they had not seen Bittu.   At that <\/p>\n
     time accused Denesh was standing at the door of his house.\n<\/p>\n
     She also inquired from him about Bittu. He told her that he <\/p>\n
     had seen Bittu   prior to about 15 to 20 minutes. Thereafter, <\/p>\n
     accused went inside the house and his mother Kusum came <\/p>\n
     out. She also told her that she had not seen Bittu.   Again she <\/p>\n
     started  searching for Bittu in the house of neighbours but he <\/p>\n
     could not be traced. Thereafter she along with Mrs. Sharma <\/p>\n
     and Kusumbai went to the house of Nandu who was residing <\/p>\n
     near Hanuman Akhada, Yavatmal.  Nandu was not present in <\/p>\n
     the   house   but   his   mother   informed   her   that   Bittu   had   not <\/p>\n
     come   to   their   house   with   Nandu.   Thereafter,   all   of   them <\/p>\n
     returned back.\n<\/p>\n
      12.         The witness further deposed that on the very same day <\/p>\n
     at about 1.45 p.m. there was a phone call at her house which <\/p>\n
     was received by her mother-in-law. She was present near the <\/p>\n
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\n                                           17<\/span><\/p>\n
     phone. She  heard her mother-in-law asking as to where they <\/p>\n
     should come. Since she thought that phone call was in relation <\/p>\n
     to her son she took the receiver of the phone and inquired as <\/p>\n
     to where she should come. She received reply that she should <\/p>\n
     come   at   Nasik   Bus   Stand   and   thereafter   the   phone   was <\/p>\n
     disconnected. Thereafter, she made inquiry with her mother-\n<\/p>\n
     in-law who told her that she was informed on phone that her <\/p>\n
     son who was missing was safe   and they should come at S.T.\n<\/p>\n
     Stand  at Nasik. Thereafter, they thought that somebody might <\/p>\n
     have   kidnapped   Bittu.   So   she   went   to   the   Police   Station <\/p>\n
     Yavatmal   City   and   lodged   report   which   was   recorded   by <\/p>\n
     Police Station Officer as per her say. The witness identified the <\/p>\n
     signature on the report Exh. 60 and stated that the contents <\/p>\n
     were  correct.  She identified all the three  accused  present  in <\/p>\n
     the court as her tenants. She further deposed that Nandu was <\/p>\n
     driver   on   their   Tata   Sumo   Vehicle.   Her   husband   sold   Tata <\/p>\n
     Sumo prior to this incident and the accused Dinesh was aware <\/p>\n
     that   they   were   having   cash   received   from   the   sale   of   the <\/p>\n
     vehicle. She further deposed that after the incident police had <\/p>\n
     taken   her   and   her   husband   to   Hyderabad   for   DNA <\/p>\n
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\n                                             18<\/span><\/p>\n
     examination.     She   identified   the   identification   form   of   her <\/p>\n
     husband and photograph   of her husband   on the said form.\n<\/p>\n
     She identified the declaration  Exh. 63.   She further  deposed <\/p>\n
     that  on 21.2.2001  her  husband  had  come  to  the  house with <\/p>\n
     police   as   he   had   come   to   know   that   Dinesh     committed <\/p>\n
     murder of their son while he was coming down on the ground <\/p>\n
     floor.  In cross-examination she stated that about  11 to 11.30 <\/p>\n
     p.m.   she   was   called     to   Police   Station,   Yavatmal   and   Police <\/p>\n
     made inquiry with her but she did not remember whether they <\/p>\n
     had recorded her statement. She further deposed that she did <\/p>\n
     not suspect that her driver Nandu had kidnapped her son. She <\/p>\n
     could     not   tell   when   she   disclosed   to   the   Police   about   the <\/p>\n
     behaviour   of   the   accused.   She   denied     the   suggestion   that <\/p>\n
     accused Dinesh was not aware about the cash received from <\/p>\n
     the sale proceeds of the vehicle and that the cash of the sale-\n<\/p>\n
     proceeds was with them.  She denied the suggestion that after <\/p>\n
     the incident accused Dinesh was not disturbed. The evidence <\/p>\n
     of this witness  is substantially  corroborated  by her husband <\/p>\n
     Prakash (P.W.17) and Rambhau (P.W. 16) grand father of the <\/p>\n
     deceased.\n<\/p>\n
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\n                                             19<\/span><\/p>\n
     13.             Prakash   Khole   (P.W.   17)   has   also   deposed   that   on <\/p>\n
     2.1.2001 he went to Parva  at 8 a.m. for duty and he returned to <\/p>\n
     Yavatmal at about 2.30 p.m.. He was informed near the gate by <\/p>\n
     Dinesh that Bittu was kidnapped and they were called at Nasik <\/p>\n
     for   taking   him.   He   thereafter   went   to   Dhamangaon   Railway <\/p>\n
     Station and took search of Bittu at Railway Station and other <\/p>\n
     places but he could not find him and as such he returned back <\/p>\n
     to   the   house.   Thereafter   on   21.1.2001   police   called   him   at <\/p>\n
     Superintendent   of   Police   Office,   Yavatmal   where   accused <\/p>\n
     Dinesh was brought after arrest. Thereafter, witness deposed <\/p>\n
     that   Dinesh   told   that   while   Bittu   was   coming   down   on   the <\/p>\n
     ground   floor   he   took   Bittu   to   his   house.   In   the   meanwhile <\/p>\n
     grand-father   of   Bittu   gave   call   and,   therefore,   he   forcibly <\/p>\n
     pressed his mouth.  He kept the dead body in a gunny bag and <\/p>\n
     put it on the sajja of his house. Thereafter, he realised that his <\/p>\n
     son   was   no   more   and   as   such   he   returned   to   his   house.\n<\/p>\n
     Thereafter,   again police called him after some time at Police <\/p>\n
     Station, Yavatmal City and asked him to accompany them. He <\/p>\n
     went  to Mandev Forest Area on his vehicle and police went to <\/p>\n
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\n                                          20<\/span><\/p>\n
     the   spot     with   accused   Dinesh   who   showed   the   spot  where <\/p>\n
     some   ash   was   lying.   Thereafter,   from   the   ash   bones   were <\/p>\n
     traced   out.   Thereafter   he   returned   home.   Witness   further <\/p>\n
     deposed that after 2nd January, 2001 Dinesh was always going <\/p>\n
     out of station.  Prior to this incident he had sold four wheelers <\/p>\n
     for   Rs.   2..45   lacs.   The   witness   further   deposed   that   on <\/p>\n
     14.3.2001 he was called in the Police Station and was told by <\/p>\n
     P.I.   Yempalliwar   that   he   had   to   come   along   with   him   to <\/p>\n
     Hyderabad  for giving   sample of his blood for DNA test. He <\/p>\n
     asked   him   to   proceed   to   Hyderabad   on   the   next   morning.\n<\/p>\n
     Thereafter   he   along   with   his   wife,   P.S.   I.   Gavai,   Police <\/p>\n
     Constable   Mr.   Gaiakwad   went   to   Hyderabad.   They   reached <\/p>\n
     Hyderabad at 2.00 p.m.. At Hyderabad he and his wife were <\/p>\n
     given identification Forms  in the laboratory which were  filled <\/p>\n
     by them and thereafter he gave declaration. He also identified <\/p>\n
     his   photograph   on   the   said   form.     He   also   identified <\/p>\n
     declaration Exh. 62 given by his wife and signed by him and <\/p>\n
     P.S.I. Gavai as a witness. He also identified the photograph of <\/p>\n
     his wife on the  declaration.    He further  deposed  that at the <\/p>\n
     laboratory the attendant took his blood as well as blood of his <\/p>\n
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\n                                           21<\/span><\/p>\n
     wife.   The   witness   deposed   that   all   the   three   accused   were <\/p>\n
     residing in his house as tenants.   He identified all the three <\/p>\n
     accused.     In   the   cross-examination   the   witness   stated   that <\/p>\n
     when he came to Yavatmal he did not know whether the police <\/p>\n
     were searching   Bittu.   He further stated that on the next day <\/p>\n
     he   had   gone   to   Nasik   along   with   P.S.I.,   Gaikwad   and <\/p>\n
     P.S.I.,Gholap.     He was confronted with the police statement <\/p>\n
     that there is no mention that accused had traced out the bones <\/p>\n
     from ash and handed over to police. Witness has denied that <\/p>\n
     accused   had   not   made   any   statement   before   the   police   as <\/p>\n
     stated by the witness.\n<\/p>\n
     14.        The   evidence   of     Rambhau   Khole   (P.W.   16)   the <\/p>\n
     grand-father   of   deceased   also   corroborates   the   version   of <\/p>\n
     above   referred   two     witnesses   that   deceased   Shreyas   was <\/p>\n
     found missing on 2.1.2001 at about 11.15 a.m. The witness has <\/p>\n
     also deposed that   all the three accused were aware that they <\/p>\n
     had sold the Tata Sumo about 8 days prior to the incident and <\/p>\n
     they were having cash amount received from the sale proceeds <\/p>\n
     of the vehicle. In cross-examination of these witnesses nothing <\/p>\n
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\n                                            22<\/span><\/p>\n
     tangible has been brought on record to discredit his testimony <\/p>\n
     that Bittu was found missing at 11.15 a.m. on 2.1.2001. Thus, <\/p>\n
     the evidence of above three witnesses clearly establishes that <\/p>\n
     deceased Shreyas was found missing at 11.15 a.m. on 2.1.2001 <\/p>\n
     and thereafter he was never traced.\n<\/p>\n
     15.         The   evidence   of   the   above   three   witnesses   also <\/p>\n
     establishes that about 8 days prior to the incident Prakash  had <\/p>\n
     sold Tata Sumo and he had received the amount of Rs. 2.45 <\/p>\n
     lacs  as sale proceeds of the vehicle. Insofar as the knowledge <\/p>\n
     of the accused about the availability of  the said sale-proceeds <\/p>\n
     of   the   vehicle   is   concerned,   there   is   no   direct   evidence <\/p>\n
     available  on record  that accused  had knowledge about cash <\/p>\n
     received from the sale of vehicle. However, having regard to <\/p>\n
     the fact that the accused was residing on the ground floor as <\/p>\n
     tenant,   it   was   quite   natural   for   the   accused   to   know   that <\/p>\n
     Prakash   Khole   father   of   the   deceased   must   have   received <\/p>\n
     substantial amount from the sale of the vehicle although the <\/p>\n
     accused  could  not be  attributed   the  knowledge of  the  exact <\/p>\n
     amount received by Prakash Khole from the sale of the vehicle.\n<\/p>\n
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\n                                            23<\/span><\/p>\n
     Having   regard   to   the   fact   that   the   accused   and   his   family <\/p>\n
     members were residing on the ground floor which is near the <\/p>\n
     entry of the building   it was quite natural for the accused to <\/p>\n
     know about the sale of the vehicle by Prakash Khole.\n<\/p>\n
     16          Insofar   as   motive   is   concerned   no   direct   evidence <\/p>\n
     has   been   led   by   the   prosecution   and   having   regard   to   the <\/p>\n
     nature of the crime allegedly committed by the accused and <\/p>\n
     the circumstances in which deceased appears to have died the <\/p>\n
     prosecution can not be expected to prove motive by leading <\/p>\n
     cogent evidence. However, we shall deal with this aspect little <\/p>\n
     later when  we deal with the aspect of  recovery. But, since the <\/p>\n
     prosecution has been able to establish that the spot where ash <\/p>\n
     and bones were found was discovered at the instance of the <\/p>\n
     accused and it has been proved by the prosecution that the <\/p>\n
     said   bones   were   of   biological   child   of   Prakash   and   Sunita <\/p>\n
     Khole. The necessary inference which can be drawn is that the <\/p>\n
     accused must have taken Shreyas in his house with a view to <\/p>\n
     demand ransom  from  his parents as they had cash with them <\/p>\n
     received by them from the sale of the vehicle.\n<\/p>\n
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\n                                           24<\/span><\/p>\n
     17.         The next circumstances relied upon by the prosecution <\/p>\n
     is purchase of petrol, rock oil, firewood and match box by the <\/p>\n
     accused on 2.1.2001.   According to the prosecution, all these <\/p>\n
     articles were used by the accused   for burning the dead body <\/p>\n
     of Shreyas  in Mandev forest.   In order to prove purchase of <\/p>\n
     petrol on 2.1.2001 the Bombaywala Petrol Pump  at Yavatmal <\/p>\n
     the prosecution examined Raju Bapuraoji Kuthe (P.W. 4) and <\/p>\n
     Firozuddin   Sheikh   (P.W.6)   who   at   the   relevant   time   were <\/p>\n
     working at the said Petrol Pump. Both of them have deposed <\/p>\n
     that on 3.1.2001 at about 7.00 a.m. accused came to the Petrol <\/p>\n
     Pump with plastic can and purchased one litre petrol from the <\/p>\n
     Petrol Pump and paid price amount of Rs. 31\/-.   Raju Kuthe <\/p>\n
     (P.W.4) deposed that he had seen accused  Vinod    in the Bus <\/p>\n
     Stand   area,   Yavatmal   and   ,   therefore,   he   could   identify <\/p>\n
     accused no. 2 Vinod as a person who was in  the auto-rickshaw <\/p>\n
     in   which   both   the   accused   came   to   the   Petrol   Pump.   The <\/p>\n
     evidence of  Firozuddin Sheikh (P.W. 6) is on the similar lines.\n<\/p>\n
     Sk.   Ghani   s\/o   Sk.   Hasan   (P.W.5)   who   was   examined   by   the <\/p>\n
     prosecution to prove the purchase of 15 kg.  firewood deposed <\/p>\n
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\n                                               25<\/span><\/p>\n
     that   on   2.1.2001   at   about   6   pm.   accused   purchased   15   kgs <\/p>\n
     firewood  for Rs. 18\/-.   The firewood  consisted  of cut  pieces <\/p>\n
     and padpas.   He identified accused no.1 in the trial court as <\/p>\n
     the   same   person   to   whom   he   had   sold   firewood.     The <\/p>\n
     prosecution examined Dinesh Nanvatkar (P.W. 9) to prove the <\/p>\n
     sale   of   rock   oil   to   the   accused   at   about   6   p.m.   on   2.1.2001.\n<\/p>\n
     According to this witness, he sold two and half litres rock oil to <\/p>\n
     the accused for Rs. 20\/- in a dabki which was of white dirty <\/p>\n
     colour.   Similarly,     the   prosecution   examined     Vijay   Pajgade <\/p>\n
     (P.W.   12)   to   prove   the   sale   of   match   box.   The   purchase   of <\/p>\n
     match box was made by the accused  at Gajanan Kirana Stores <\/p>\n
     situated     at   Pajgade   Layout,   Yavatmal.     According   to   this <\/p>\n
     witness   at   about   7   to   8   p.m.   Dinesh   Band   the   accused <\/p>\n
     purchased match box from his shop for 50 paise. He claimed <\/p>\n
     that   he   knew   Dinesh   at   the   time   of   the   incident   as   he   was <\/p>\n
     tenant of Prakash Khole.\n<\/p>\n
     18.           We find it extremely difficult to place reliance upon  to <\/p>\n
     the testimonies of all these witnesses to prove the purchase of <\/p>\n
     petrol,   rock   oil,   wood   and   match   box   on   2.1.2001   by   the <\/p>\n
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\n                                            26<\/span><\/p>\n
     accused   inasmuch   as   the   Investigating   Officer   in   the   cross <\/p>\n
     examination   admitted that   Raju Kuthe (P.W. 4),   Sk. Ghani <\/p>\n
     (P.W.5),     Firozuddin   Sheikh   (P.W.6)   and     Dinesh   Nanvatkar <\/p>\n
     (P.W.9)   did not know the accused prior to recording of their <\/p>\n
     statements.  Admittedly, the statements  of all these witnesses <\/p>\n
     were  recorded  after  the   arrest  of the accused  on  21.2.2001.\n<\/p>\n
     Moreover, the Investigating Officer  has not deposed as to how <\/p>\n
     he   came   to   know   that   the   accused   had   purchased     above <\/p>\n
     mentioned articles from these witnesses.  In criminal trials and <\/p>\n
     more particularly in  a case based  on circumstantial evidence <\/p>\n
     it   is   extremely   important   for   the   Investigating   Officer   to <\/p>\n
     depose   regarding   the   various   steps   taken   by   him   including <\/p>\n
     recording of the statements of the various witnesses.   In the <\/p>\n
     present case the investigating officer has not disclosed as to <\/p>\n
     how he came  to know that the accused had purchased various <\/p>\n
     articles   from   the   above   referred   witnesses.   This   was   all   the <\/p>\n
     more   important   since   the   investigating   officer   has   admitted <\/p>\n
     that all these witnesses did not know the accused.  It is not in <\/p>\n
     dispute   that   identification   parade   was   not   done   during <\/p>\n
     investigation.   In this connection, we   deem it appropriate to <\/p>\n
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\n                                          27<\/span><\/p>\n
     refer to the Judgment of the Apex Court in the case of Subhash <\/p>\n
     Chand   vs. State of Rajasthan<\/a> (2002) 1 Supreme Court Cases, <\/p>\n
     702.  Paragraph  26 of the said Judgment reads thus;\n<\/p>\n
              “26 .   Before parting with the case we would like <\/p>\n
              to   place   on   record,   an   observation   of   ours, <\/p>\n
              touching an aspect of the case. There are clueless <\/p>\n
              crimes   committed.   The   factum   of   a   cognizable <\/p>\n
              crime   having   been   committed   is   known   but <\/p>\n
              neither   the   identity   of   the   accused   is   disclosed <\/p>\n
              nor   is   thee   any   indication   available   of   the <\/p>\n
              witnesses   who   would   be   able   to   furnish   useful <\/p>\n
              and relevant evidence. Such offences put to test <\/p>\n
              the   wits   of   an   investigating   officer.     A   vigilant <\/p>\n
              investigating   officer,   well   versed   with   the <\/p>\n
              techniques of the job, is in a position to collect <\/p>\n
              the   threads   of   evidence   finding   out   the   path <\/p>\n
              which leads to the culprit.   The ends, which the <\/p>\n
              administration of criminal justice serves are not <\/p>\n
              achieved merely by catching hold of the culprit.\n<\/p><\/blockquote>\n
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\n                                            28<\/span><\/p>\n
                The accusation has to be proved to the hilt in a <\/p>\n
                court   of   law.   The   evidence   of   the   investigating <\/p>\n
                officer given in the court should have a rhythm <\/p>\n
                explaining   step   by   step   how   the   investigation <\/p>\n
                proceeded   leading   to   detection   of   the   offender <\/p>\n
                and   collection   of   evidence   against   him.   This   is <\/p>\n
                necessary   to   exclude   the   likelihood   of   any <\/p>\n
                innocent having been picked up and branded as <\/p>\n
                a   culprit   and   then   the   gravity   of   the   offence <\/p>\n
                arousing human sympathy persuading the mind <\/p>\n
                to   be   carried   away   by   doubtful   or   dubious <\/p>\n
                circumstances   treating   them   as   of   ”   beyond <\/p>\n
                doubt” evidentiary value.”\n<\/p><\/blockquote>\n
     19.         For   the   aforesaid   reasons,   we   find   it   extremely <\/p>\n
     difficult   to   place   reliance   on   the   testimonies   of   these   four <\/p>\n
     witnesses.   For the same reasons we are unable to accept the <\/p>\n
     testimony of Vijay Pajgade (P.W. 12) who has been examined <\/p>\n
     to   prove   the   purchase   of   match   box   by   the   accused   on <\/p>\n
     2.1.2001. We find that in large number of Sessions Trials the <\/p>\n
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\n                                           29<\/span><\/p>\n
     deposition   of   the   investigating   officers   is   cryptic   and   the <\/p>\n
     investigating officers do not depose as to various steps taken <\/p>\n
     by them during the investigation which would throw light on <\/p>\n
     the various aspects of investigation.  In the present case, may <\/p>\n
     be that   upon interrogation  of the accused  the investigating <\/p>\n
     officer came  to know about   the purchase of above referred <\/p>\n
     articles   from   various   witnesses   but   in   the   absence   of   any <\/p>\n
     evidence   coming   from   the   investigating   officer   we   find   it <\/p>\n
     extremely   difficult   to   place   reliance     on   their   evidence.\n<\/p>\n
     Therefore, in our considered opinion, the prosecution has not <\/p>\n
     been able to purchase of all the above referred articles by the <\/p>\n
     accused from  the above mentioned witnesses.\n<\/p>\n
     20.         The   next   circumstances   relied   upon   by   the <\/p>\n
     prosecution is that on 2.1.2001 the accused made a call from <\/p>\n
     S.T.D.\/P.S.O. Shop of Rathi in Dava Bajar, Yavatmal at about <\/p>\n
     1.30     to   2.00   p.m.   .       To   prove   this     circumstance   the <\/p>\n
     prosecution   examined   Sapna   Shukla   (P.W.   10)     who   at   the <\/p>\n
     relevant time was serving in S.T.D. Shop of Rathi. She deposed <\/p>\n
     that on 2.1.2001 she was on duty in the telephone booth in the <\/p>\n
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\n                                              30<\/span><\/p>\n
     entire   day   and   the   accused   came   to   the   booth   at   about   12 <\/p>\n
     O’clock   and   he   told   her   that     Bittu   son   of   his   landlord   was <\/p>\n
     kidnapped and he also told her that she should not come to <\/p>\n
     his house and left the booth.  Thereafter, at about 1.30 to 2.00 <\/p>\n
     p.m. accused again came to the shop and gave a ring from the <\/p>\n
     phone box kept outside the P.C.O. cabin. The witness deposed <\/p>\n
     that the accused again came to the shop at about 7.00  a.m.  on <\/p>\n
     3.1.2001. She further deposed that she inquired from him as to <\/p>\n
     why he had come so early to which he stated that he had come <\/p>\n
     from Mandev by auto and that he had gone to Mandev with <\/p>\n
     his  friend.    She further  deposed  that  he thereafter  offered   a <\/p>\n
     match stick to light scented   stick. The witness deposed that <\/p>\n
     she told him that they will have tea but the accused  appeared <\/p>\n
     to be scared and told her that he will not take tea. The witness <\/p>\n
     deposed   that   accused   was   in   a   frightened   condition.     The <\/p>\n
     witness   further   deposed   that   on   15.1.2001     she   along   with <\/p>\n
     Vaishali Gavai   went to Mahur and performed marriage. She <\/p>\n
     further   deposed   that   on   17.1.2001   police   arrested   her   and <\/p>\n
     Vaishali and brought them to Yavatmal.   Both of them were <\/p>\n
     interrogated  by   the police   and  she  informed   the police   that <\/p>\n
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\n                                            31<\/span><\/p>\n
     they did not   know about incident and thereafter they were <\/p>\n
     released.  She narrated the incident  to the police on 19.2.2001 <\/p>\n
     and to the police that she suspected Dinesh  and on the same <\/p>\n
     day her statement was recorded. We are unable to accept her <\/p>\n
     testimony   regarding   making   of   phone   call   by   accused   on <\/p>\n
     2.1.2001 inasmuch as the witness candidly admitted  that till <\/p>\n
     19.2.2001   she   did   not   tell   anybody   that   she     suspected   the <\/p>\n
     accused Dinesh.  Moreover, witness  was herself  suspected to <\/p>\n
     be involved in the offence of kidnapping of the child and was <\/p>\n
     arrested.   We   are,   therefore,   unable   to   hold   that   the <\/p>\n
     prosecution has been able to establish the circumstance that <\/p>\n
     on 2.1.2001 the accused had given a phone call from the booth <\/p>\n
     where  Sapna Shukla was serving.\n<\/p>\n
     21.         The   next   circumstance   relied   upon   by   the <\/p>\n
     prosecution is discovery of spot at the instance of the accused <\/p>\n
     where   burnt   ash,bones   and   other   articles   were   found.     To <\/p>\n
     prove this fact, the prosecution examined Ganesh Bayas (P.W.\n<\/p>\n
     2)   one   of   the   panchas   to   the   memorandum   statement   and <\/p>\n
     consequential  discovery  of  the spot where  burnt ash,  bones <\/p>\n
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\n                                           32<\/span><\/p>\n
     and other articles were found.  P.W. 2 Ganesh Bayas deposed <\/p>\n
     that on 21.2.2001  he noticed    rush of people  in  front of the <\/p>\n
     police station and he was asked  by P.S.O. to be a panch for <\/p>\n
     which he initially refused but later on acceded to the request <\/p>\n
     of police  inspector.   He further deposed that another panch <\/p>\n
     Narayan was with him at that time. He further deposed that in <\/p>\n
     his presence P.S.O. asked the accused as to what he had done <\/p>\n
     to which he agreed to show the spot where dead body of Bittu <\/p>\n
     was   burnt  on   3.1.2001  in  the  morning.    He  further   deposed <\/p>\n
     that   the   statement   was  recorded   in   his  presence   which   was <\/p>\n
     also signed by the accused.  He identified the signature on the <\/p>\n
     memorandum   (Exh.   65).     Thereafter,   he   along   with   the <\/p>\n
     accused   and   P.I.   ,   Gajanan   Ampalliwar   (P.W.   23)   and   other <\/p>\n
     staff proceeded to Mandeo fields which is on Arni Road.  After <\/p>\n
     crossing Mandeo temple, accused Dinesh asked the driver to <\/p>\n
     slow   the  vehicle   and   thereafter   accused    Dinesh   directed   to <\/p>\n
     take the vehicle by old road.   Accordingly, the jeep was taken <\/p>\n
     towards   the   old   road   as   direction   of   the   accused..     After <\/p>\n
     crossing   300   to   400   meters   distance   they   crossed   Hanuman <\/p>\n
     temple. Accused asked the driver to stop the jeep which was <\/p>\n
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\n                                            33<\/span><\/p>\n
     stopped.  He along with the police and accused got down from <\/p>\n
     the jeep. Dinesh thereafter led them to the spot which was to <\/p>\n
     the   western   side   of   the   Hanuman   Temple   at   a   distance   of <\/p>\n
     about 50   to   60 meters near   babul tree.   On the spot they <\/p>\n
     found  half burnt pieces of wood which were like padpas and <\/p>\n
     there were  other burnt pieces of wood. Some pieces of burnt <\/p>\n
     gunny   bags   were   also   found   on   the   spot.   The   accused   and <\/p>\n
     police  tried  to  trace out the burnt pieces of bones from the <\/p>\n
     ash.   Some   pieces   of   bones   were   traced   out   from     the   ash.\n<\/p>\n
     Police   separated   the   bones   and   kept   in   one   pocket   and <\/p>\n
     thereafter   collected   ash   and   kept   in   different   pocket.     The <\/p>\n
     burnt pieces of wood and burnt pieces of gunny bag were put <\/p>\n
     in another pocket. All these articles were seized by the police <\/p>\n
     and their signatures were obtained on the sealed pockets and <\/p>\n
     police also seized sample of earth at the distance of about 10 <\/p>\n
     to 15 meters from the spot. He further deposed that the police <\/p>\n
     prepared   seizure   panchanama   of   all   the   articles   in   their <\/p>\n
     presence and in presence of other panchas. He identified his <\/p>\n
     signature on the panchanama and that he further stated that <\/p>\n
     panchanama   also     bears   the   signature   of   accused   and   P.I., <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:27:17 :::<\/span>
\n                                            34<\/span><\/p>\n
     Gajanan Ampalliwar (P.W. 23).  He deposed that the contents <\/p>\n
     of   the   panchanama   (Exh.   66)   were   true   and   correct.     He <\/p>\n
     identified   the   seizure   panchanama   (Exh.   67).     He   further <\/p>\n
     deposed     that   thereafter   they   returned   back   to   the   Police <\/p>\n
     Station,   Yavatmal   City.     In   the   cross-examination   of   this <\/p>\n
     witness   nothing   tangible   has   been   brought   on   record   to <\/p>\n
     discredit   his testimony.   The evidence of this witness clearly <\/p>\n
     establishes that at the  instance of the accused the police  were <\/p>\n
     taken to the spot where burnt ash, bones and burnt pieces of <\/p>\n
     wood and gunny bags were found on the spot which was near <\/p>\n
     Hanuman Temple situated at Mandev.\n<\/p>\n
     22.         In   order   to   prove   that   the   bones   recovered   at   the <\/p>\n
     instance   of   the   accused   were   of   the   biological     Shreyas   the <\/p>\n
     prosecution examined   G. Venkateshwar Rao (P.W. 22)   who <\/p>\n
     the   relevant   time   was   serving   as   Chief   of   DNA   Lab   at <\/p>\n
     Hyderabad.     He   deposed   that   he   was   Chief   D.N.A.   Lab   at <\/p>\n
     Hyderabad.     He   deposed   that     he   was   P.H.D.   in   Forensic <\/p>\n
     aspects   of   DNA   Finger   printing   and   he   had   done   his     Post <\/p>\n
     Doctorate in the   same from C.C.M.B. Hyderabad. He further <\/p>\n
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\n                                           35<\/span><\/p>\n
     deposed that he had given opinion   in an around 1400 cases <\/p>\n
     from   India   and   abroad   and   he   had   experience   of   about   13 <\/p>\n
     years   in   examination     of   biological   samples   recovered   in <\/p>\n
     different crimes.  Since 1996 he was working in the institution <\/p>\n
     which   was   a   Department   of   Government   of   India   which   is <\/p>\n
     autonomous   centre   of   Department   of   Bio-technology, <\/p>\n
     Minister of Science and Technology, Government of India.\n<\/p>\n
     23.        He   further   deposed   that   on   15.3.2001   he   received <\/p>\n
     articles   from   the   Superintendent   of  Police,  Yavatmal   City  in <\/p>\n
     connection   with   the   crime   No.   4\/2001   of   Yavatmal   City   to <\/p>\n
     establish   the   identify   of   deceased   with   controlled   blood <\/p>\n
     samples of the father and mother of the deceased. He further <\/p>\n
     deposed   that   the   mother   and   father   of   deceased   came   in <\/p>\n
     person to C.D.F.D., Hyderabad and their blood samples were <\/p>\n
     collected in the Lab.   He identified the   requisition form Exh.\n<\/p>\n
     137 which was sent by S.P. Yavatmal.  He further deposed that <\/p>\n
     the   blood   samples   of   Prakash   Khole   and   Sunita   Khole   were <\/p>\n
     collected   on   the   same   day   after   completing   necessary <\/p>\n
     formalities.  He further deposed that the examination of DNA <\/p>\n
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\n                                            36<\/span><\/p>\n
     finger printing in this case commenced on 30th April, 2001 and <\/p>\n
     ended on 30th  August, 2001.   He was assisted by Mrs. Varsha <\/p>\n
     who was working as Scientist in the Lab.  During the detailed <\/p>\n
     examination of the burnt bones, he found certain small pieces <\/p>\n
     of   unburnt   bone   with   bone   marrow   attached   to   it.   After <\/p>\n
     conducting  DNA   test he opined  that    on  comparison  of the <\/p>\n
     DNA finger print of the source of Exhibit B (femur bone) with <\/p>\n
     the   D.N.A.   Fingerprints   of   the   sources   of   Exhbits   A   and   C <\/p>\n
     (blood samples ofSmt. Sunita PrakashKhole and Mr. Prakash <\/p>\n
     Khole respectively.   He identified his signature on the report <\/p>\n
     Exh. 138 and also photograph  of the result obtained as figure <\/p>\n
     one under enclosure one. It is at Exh. 138-A. He also identified <\/p>\n
     his signature and confirmed its contents as true and correct.\n<\/p>\n
     He further deposed that he had come to the conclusion that <\/p>\n
     the source  of Exh. B i.e. Fumur bone is biological offspring of <\/p>\n
     the sources of Exhibiits A and C. In the cross examination of <\/p>\n
     this witness nothing tangible has been brought on record to <\/p>\n
     discard his testimony. In the cross-examination he admitted <\/p>\n
     that if the bone is reduced to ash no DNA can be collected.  He <\/p>\n
     further deposed that in the present case bone appeared to be <\/p>\n
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\n                                           37<\/span><\/p>\n
     completely burnt but was not in ash form and he   had found <\/p>\n
     few unburnt pieces of bones. He further admitted that he had <\/p>\n
     not mentioned in the report that DNA was of male or female.\n<\/p>\n
     There  is  absolutely  no reason  to discard  the opinion of  this <\/p>\n
     expert witness who has deposed in detailed as to on what basis <\/p>\n
     he   has   come   to   the   conclusion     that   the   bones   were   of <\/p>\n
     biological child of Prakash Khole and Sunita Khole. Thus, the <\/p>\n
     prosecution has been able to prove that the bones which were <\/p>\n
     found on the spot which was pointed out by the accused  were <\/p>\n
     of bilological child of Prakash and Sunita Khole.\n<\/p>\n
     24.        The evidence of Dr. Hemant Godbole (P.W. 11) is not <\/p>\n
     of   much   help   to   the   prosecution   inasmuch   as   initially   the <\/p>\n
     packet   containing   the   bones   was   submitted   to   him   for   his <\/p>\n
     opinion and he advised to refer the bones to C.A. Nagpur and <\/p>\n
     he further advised that for answering certain queries the bones <\/p>\n
     be referred to DNA test. The cross-examination of this witness <\/p>\n
     also  lends  assurance   to   the  prosecution   case   and   they   were <\/p>\n
     pieces of bones which were forwarded to him for his opinion.\n<\/p>\n
     Thus,   the   prosecution   has   been   able   to   establish   that   the <\/p>\n
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\n                                          38<\/span><\/p>\n
     bones at the spot which was pointed out by the accused, were <\/p>\n
     of the biological child of Prakash and Sunita Khole.\n<\/p>\n
     25.        We have held that the prosecution has been able to <\/p>\n
     establish  that ash, burnt pieces  of wood   were found at the <\/p>\n
     spot pointed out by the accused.  No doubt the accused during <\/p>\n
     the   trial   denied   to   have   made   any   statement   pursuant   to <\/p>\n
     which all these articles were found and seized. However, we <\/p>\n
     have   already   accepted   the   version   of   the   panch   witness <\/p>\n
     Ganesh   Bayas   (P.W.  2)  which   has  been   corroborated   by   the <\/p>\n
     P.I., Mr. Gajanan Ampalliwar (P.W. 23). At this stage we would <\/p>\n
     like to consider as to what inference we can draw from the act <\/p>\n
     of the accused pointing out the spot where burnt ash, bones <\/p>\n
     and other articles were  found. We have already held that the <\/p>\n
     prosecution has been able to establish that the bones found on <\/p>\n
     the spot were of biological child of Prakash and Sunita Khole.\n<\/p>\n
     In view of this position, there are three possibilities; one is that <\/p>\n
     the body of the child Shreyas was either burnt by the accused <\/p>\n
     or he had seen somebody else   doing it or that somebody told <\/p>\n
     him that it was brunt at the spot. The Apex Court in the case of <\/p>\n
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\n                                            39<\/span><\/p>\n
     State   of   Maharashtra     vs.   Suresh<\/a>   (2000)   1   Supreme   Court <\/p>\n
     Cases, 471) held that when the accused points out the place of <\/p>\n
     dead body or an incriminating material was concealed without <\/p>\n
     stating   that   it   was   concealed   by   him   there   are   three <\/p>\n
     possibilities. One is that he himself would have concealed it, <\/p>\n
     second is that he would have seen somebody else concealing it <\/p>\n
     and   the   third   is   that   he   would   have   been   told   by   another <\/p>\n
     person   that   it   was   concealed   there.     But   when   the   accused <\/p>\n
     declines  to  tell  the criminal  court    his knowledge about the <\/p>\n
     concealment   was   on   account   of   one   of   the   last   two <\/p>\n
     possibilities,   the   criminal   court   can   presume   that   it   was <\/p>\n
     concealed by the accused himself.  This is because the accused <\/p>\n
     is the only person who can offer the explanation as to how else <\/p>\n
     he came  to know of such concealment and if he chooses to <\/p>\n
     refrain from telling the court as to how else he came to know <\/p>\n
     of it, the presumption is a well justified course to be adopted <\/p>\n
     by the criminal court that the  concealment was made by him.\n<\/p>\n
     The Apex Court further held that such an interpretation is not <\/p>\n
     inconsistent with the principle embodied in Section 27 of the <\/p>\n
     Evidence Act.  In our considered opinion the ratio laid down in <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:27:17 :::<\/span>
\n                                          40<\/span><\/p>\n
     the case of Suresh (supra) is squarely applicable in the present <\/p>\n
     case.   Therefore,   in   the   absence   of   any   explanation   coming <\/p>\n
     from the accused during the trial the only legitimate inference <\/p>\n
     that can be drawn that it was the accused who burnt the body <\/p>\n
     of Shreyas who was found missing on 2.1.2001.\n<\/p>\n
     26.        Insofar as  eighth circumstance is concerned the C.A.\n<\/p>\n
     Report Exh. 151 relied upon by the prosecution discloses that <\/p>\n
     residues of kerosene were found on the ash, half burnt gunny <\/p>\n
     cloth pieces and earth wrapped from the spot.  This is also an <\/p>\n
     incriminating circumstance which stands proved by the C.A.\n<\/p>\n
     Report.\n<\/p>\n
     27.        Thus, the evidence of prosecution has been able to <\/p>\n
     establish the circumstance nos. (i), (ii), (iii), (vi), (vii) (viii) and <\/p>\n
     (ix) mentioned in paragraph 10 hereinabove.\n<\/p>\n
     28.        We shall now deal with the authorities cited by Mr. <\/p>\n
     Patwardhan, the learned counsel for the applicant.  In the case <\/p>\n
     of  Mahmood  (supra), the Apex Court has laid down the tests <\/p>\n
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\n                                          41<\/span><\/p>\n
     which are to be satisfied before recording conviction based on <\/p>\n
     the   circumstantial   evidence.   The   Apex   Court   has   held   that <\/p>\n
     before   recording   conviction   on   the   basis   of   circumstantial <\/p>\n
     evidence the circumstances from which the inference is to be <\/p>\n
     drawn have to be fully established beyond a shadow of doubt <\/p>\n
     and the circumstances must unerringly point towards the guilt <\/p>\n
     of the accused and that the circumstances, taken collectively <\/p>\n
     must   be   incapable   of   explanation   on   any   reasonable <\/p>\n
     hypothesis   save that of the guilt sought to be proved against <\/p>\n
     him.     In  Bakshish   Singh  (supra)   the   Apex   Court   has   also <\/p>\n
     considered the nature of the evidence required for conviction <\/p>\n
     of  the accused in a case based on circumstantial evidence.  In <\/p>\n
     Premjibhai Khasiya  (supra) the Division Bench of the Gujrat <\/p>\n
     High Court has held that positive DNA report can be of great <\/p>\n
     significance  where there is supporting evidence but same can <\/p>\n
     not be accepted in isolation. This judgment does not advance <\/p>\n
     the case of the accused inasmuch as in the present case DNA <\/p>\n
     report   is corroborated by other circumstantial evidence.   In <\/p>\n
     the case of    Ashish Batham  (supra) the Apex Court reiterated <\/p>\n
     the principles laid down   by the Apex Court in various cases <\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:27:17 :::<\/span>
\n                                          42<\/span><\/p>\n
     including   the   case   of  Hanumant   Govind   Nargundkar.    The <\/p>\n
     Apex Court further held that suspicion however strong is not <\/p>\n
     substitute for  legal proof and the courts have  to keep in mind <\/p>\n
     that   there  lies long mental distance between   ‘may be’ and <\/p>\n
     ‘must be true’.\n<\/p>\n
                While   appreciating   the   prosecution   evidence   we <\/p>\n
     have appreciated the evidence in the light of the principles laid <\/p>\n
     down by the Apex Court in various Judgments dealing with the <\/p>\n
     case based on circumstantial evidence.\n<\/p>\n
     29.        In our considered opinion  the circumstances proved <\/p>\n
     by   the   prosecution   conclusively   establish   that   it   was   the <\/p>\n
     accused who burnt the dead body of Shreyas by taking it to the <\/p>\n
     jungle in a gunny bag and setting the gunny bag on fire after <\/p>\n
     pouring kerosene on it.  If these circumstances are proved the <\/p>\n
     only legitimate inference that can be drawn is that the accused <\/p>\n
     burnt   dead   body   of   Shreyas   after   committing   his   murder.\n<\/p>\n
     There is absolutely no explanation coming from the accused <\/p>\n
     as to in  what circumstance he burnt the dead body of Shreyas.\n<\/p>\n
     Therefore, the only legitimate inference that can be drawn is <\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:27:17 :::<\/span>
\n                                             43<\/span><\/p>\n
     initially he kidnapped Shreyas with a view to demand ransom <\/p>\n
     from  his  parents   and  since  Rambhau   called   Shreyas  to   take <\/p>\n
     him to School the accused pressed his nose and mouth which <\/p>\n
     resulted  in his death.  Thereafter, the accused  took the dead <\/p>\n
     body to the Mandev jungle in gunny bag and set it on fire.\n<\/p>\n
     30.         The   prosecution   has   challenged   acquittal     of   the <\/p>\n
     accused under Sections 363 and 364 of the Indian Penal Code.\n<\/p>\n
     The   prosecution   evidence   to   which   we   have   already   made <\/p>\n
     reference clearly suggests that the accused had taken Shreyas <\/p>\n
     in the house with a view to demand ransom from his father <\/p>\n
     and when Rambhau called Shreyas to take him to school the <\/p>\n
     accused pressed his nose and mouth resulting his death.  It is <\/p>\n
     only   thereafter   that   the   accused   burnt   the   dead   body   of <\/p>\n
     Shreyas by taking it in Mandev jungle.  This being the position <\/p>\n
     the offence under Section 364 of the Indian Penal Code is not <\/p>\n
     attracted.   Section 364 of the Indian Penal Code is attracted <\/p>\n
     when   a person is kidnapped or abducted in order that such <\/p>\n
     person may be murdered or may be so disposed of   as to be <\/p>\n
     put   in   danger   of   being   murdered.     In   the   present   case,   the <\/p>\n
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\n                                             44<\/span><\/p>\n
     prosecution   evidence   suggests   that   the   accused   kidnapped <\/p>\n
     the child   with a view to demand ransom but on account of <\/p>\n
     pressing of mouth and nose of the child, he died. It was only <\/p>\n
     thereafter his dead body was burnt.  Therefore, Section 364 of <\/p>\n
     the   Indian   Penal   Code   is   not   attracted   in   the   present   case.\n<\/p>\n
     However, we find it extremely difficult   to sustain the finding <\/p>\n
     of the trial court that Section 363 is not attracted in the present <\/p>\n
     case.   Once it is held that it was the accused who burnt the <\/p>\n
     dead   body   of   Shreyas   by   taking   it   to   Mandev   Jungle   the <\/p>\n
     necessary   inference   which   can   be   drawn   is   that   he   had <\/p>\n
     kidnapped the child for ransom.  Therefore, the offence under <\/p>\n
     Section   363   of   the   Indian   Penal   Code   is   clearly   made   out <\/p>\n
     against   the   accused.     Insofar   as   the   Judgment   of   the   Apex <\/p>\n
     Court in Sucha Singh (supra) relied upon by the learned A.P.P.\n<\/p>\n
     is concerned, the same is not directly attracted in the present <\/p>\n
     case.  In the case  of Sucha Singh the Apex Court held that if a <\/p>\n
     person   who   is   abducted   is   found     dead   soon   thereafter <\/p>\n
     depending     upon   the     factual   situation   the   court   can   draw <\/p>\n
     presumption that all the abductors are responsible for murder <\/p>\n
     unless abductors otherwise  to Court as to what  else they did <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:27:17 :::<\/span>
\n                                            45<\/span><\/p>\n
     with victim. In the present case the trial court held the accused <\/p>\n
     guilty   for   the   offence   of   murder   but   acquitted   him   for   the <\/p>\n
     offence of kidnapping. We have already held that the acquittal <\/p>\n
     of   the   accused   for   the   offence   under   Section   363   is <\/p>\n
     unsustainable in law. Therefore, the accused is also liable to be <\/p>\n
     convicted for the offence punishable under Section 363 of the <\/p>\n
     Indian Penal Code.\n<\/p>\n
     31.         For  the  reasons   aforesaid  the  Criminal  Appeal  No. <\/p>\n
     198\/2004 filed by the accused is dismissed and conviction and <\/p>\n
     sentence  imposed  by the trial court is maintained. Criminal <\/p>\n
     Appeal No. 345\/2004 filed by the State is partly allowed. The <\/p>\n
     acquittal   of   the   accused   for   the   offence   punishable   under <\/p>\n
     Section 363 of the Indian Penal Code is quashed and set aside <\/p>\n
     and   accused   is   convicted   for   the   offence   punishable   under <\/p>\n
     Section   363   of   the   Indian   Penal   Code   and   sentenced   to <\/p>\n
     undergo to R.I. for five   years and to pay a fine of Rs. 5000\/-\n<\/p>\n
     and in default to undergo R.I. for one year. Both the sentences <\/p>\n
     are ordered to run concurrently.\n<\/p>\n
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\n                                                   46<\/span><\/p>\n
                 Both   the   criminal   appeals   are   disposed   of <\/p>\n
     accordingly.\n<\/p>\n
     32.         Fees payable to Advocate Mr. R.M.Patwardhan who <\/p>\n
     has   been   appointed   to   appear   on   behalf   of   the   accused   in <\/p>\n
     Criminal Appeal No. 198\/2004 are quantified at Rs. 3000\/-.\n<\/p>\n
                          JUDGE                                             JUDGE \n                         \n     patle   \n                  \n                        \n      \n   \n\n\n\n\n\n\n                                                               ::: Downloaded on - 09\/06\/2013 15:27:17 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dinesh vs State Of Maharashtra on 19 December, 2009 Bench: A. P. Lavande, Prasanna B. Varale 1 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). .. . […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-41842","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDinesh vs State Of Maharashtra on 19 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dinesh-vs-state-of-maharashtra-on-19-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dinesh vs State Of Maharashtra on 19 December, 2009 - 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