- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.737/2008 1] Annasaheb @ Macchindra s/o Pandurang @ Muktaji Vaidya, age 47 yrs., occu.nil. 2] Mandabai w/o Annasaheb Vaidya, age 45 yrs., occu.nil, Both r/o Sugaon Tq.Akole Dist.Ahmednagar. ...Appellants.. Versus The State of Maharashtra. ...Respondent... ..... Smt.S.S. Jadhav, Advocate for appellants. Shri B.V. Wagh, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 27.10.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellants, who stand convicted for offence punishable u/s 302 r/w 34 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of - 2 - Rs.2,000/- each, in default of which to undergo rigorous imprisonment for six months and for an offence punishable u/s 364 r/w 34 of the Indian Penal Code, sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1,000/- each, in default of which to undergo rigorous imprisonment for six months and u/s 201 r/w 34 of the Indian Penal Code, sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.500/- each, in default of which to undergo further rigorous imprisonment for five months with no separate sentence being awarded for offence punishable u/s 392 of the Indian Penal Code, by the Additional Sessions Judge, Sangamner, by judgment dated 25.3.2008, in Sessions Case No.4/2006, by this appeal question the correctness of their conviction and sentence. 2] PW 1 Kusum, mother of Pushpa, lodged a report at Exhibit 30 on 29.6.2005 that Pushpa had been done to death and her dead body had been buried by the appellant no.1. The said report disclosed that Pushpa had been missing since 14.4.1998. On the basis of the said report, offence punishable u/s 364, 392 r/w 34 of the Indian Penal Code came to be registered vide Crime No.68/2005. It appears that the appellant no.1 came to be arrested and accordingly PW 10 Vikas Kohok, Dy.S.P. and S.D.P.O., Sangamner, was investigating the said crime. The appellant no.1 had also been arrested in Crime No.58 and accordingly was sent for Narco Analysis test and during the test, it transpired that the appellant no.1 had given information about some other offences and had stated that he had buried dead bodies in his house as well as in his agricultural land. Accordingly, on - 3 - 29.4.2006, two panchas were called and Naib Tahsildar of Akole was also called and with the help of a JCB machine, the land at Gut No.1/6 B came to be excavated. During the excavation of the land, they had found a blue colored saree and some bones and black & white wire around the bones and pieces of red colored bangles and a bluish colored blouse. Accordingly, the mud from the said place was collected and the bones were collected in a box and a panchanama came to be drawn at Exhibit 42. The aforesaid articles came to be shown to PW 1 Kusum, who identified the saree, blouse and bangles of deceased Pushpa. The articles were re-packed in the box and sealed under panchanama at Exhibit 45. Statement of witnesses came to be recorded and the bones were referred to B.G. Medical College Hospital for examination and the bones and pieces of skull were also referred to the Forensic Science Laboratory for DNA examination and for skull superimposition along with the photograph of the deceased. The certificates indicate that the authorities opined that the bones were of a human-being and the bones were of female and her age is given as 23 years. Samples were also sent to the Forensic Science Laboratory, Mumbai, for DNA test and superimposition of skull bones. However, report was negative. It also appears that PW 9 Sanjay Bhimrao Patil was the S.D.P.O., Sangamner, who had initially recorded the statement of witnesses and drawn the scene of the offence in the presence of panchas i.e. scene from where the deceased was alleged to have boarded the jeep. On 4.8.2005, he recorded the statement of Jalindar and the Police Patil of the village and also recorded the statements of other witnesses. Further to the completion of investigation, a charge-sheet against the appellants came to be filed. - 4 - 3] On committal of the case to the Court of Sessions, the trial Court vide Exhibit 8 framed charge against the accused for offence punishable u/s 364 r/w 34, 392 r/w 34 of the Indian Penal Code. Additional charge came to be framed at Exhibit 25 for offence punishable u/s 302 r/w 34 and 201 r/w 34 of the Indian Penal Code. The accused pleaded their innocence and claimed to be tried. The prosecution examined in all 10 witnesses and the trial Court, upon consideration of the evidence, convicted and sentenced the appellants as afore-stated. 4] It would be useful to refer to the evidence of the prosecution witnesses. PW 1 Kusum, mother of deceased Pushpa, states that she along with her children was residing at Kumbhephal. Her daughter Bayasa was married to PW 7 Dattatraya about 22 years prior to her evidence. After marriage, name of Bayasa was changed to Pushpa. Pushpa gave birth to two children by name Vishal and Kanchan. Initially, Pushpa resided along with her husband for about 5 to 6 years at village Sugaon and thereafter they came to reside at village Kumbhephal in the house of one Popat Sitaram Kotkar, which house is adjacent to her house. Husband of Pushpa was serving as a waiter in the hotel at Akole while Pushpa was engaged in rolling Bidis at the house and used to go to Akole along with the rolled Bidis for depositing the same to the Clerk of the Bidi factory at Akole. Accused no.2 Mandabai was also accompanying Pushpa and was also doing the same labour work. PW 1 Kusum states that accused no.2 Mandabai was friend of Pushpa and accused nos.1 & 2 were often visiting the house of Pushpa. The - 5 - distance between village Kumbhephal and Akole is about 4 to 5 Kms. She states that about 9 years prior, her daughter Pushpa had gone to the house of PW 8 Jalindar at village Tahakari and Jalindar had presented Pushpa with a saree of blue color and a blouse and red colored bangles. She states that Pushpa had returned to her house on the next day evening. She further states that Pushpa was wearing a gold necklace of about 20 Gms. and was also wearing the necklace of black beads of one Tola. Pushpa was also wearing gold ear-rings and nose rings. She states that Pushpa had gone to the Bidi factory along with the rolled Bidis at 9 a.m. Husband of Pushpa had already left the house at 7 a.m. to attend his duties as a waiter. Pushpa was wearing the golden ornaments and the saree of blue color. Pushpa was also possessing about Rs.5,000/- withdrawn from the bank for medical treatment of her daughter. Pushpa, however, did not return back to the house and when PW 1 Kusum enquired from the husband of Pushpa, he had informed Kusum that he had made arrangements with accused no.2 for traveling in a jeep. Search for Pushpa was undertaken but Pushpa could not be traced. She further states that PW 2 Uttam had lodged a missing report at Akole Police Station and thereafter she learnt by reading the newspaper that a human skeleton was found near the house of accused no.1. PW 1 Kusum, therefore, lodged a report at Exhibit 30. She states that the Police excavated the land with a JCB machine and found human skeleton, saree, blouse and a wire and when those articles were shown to her, she identified those articles to be of Pushpa. She has identified the saree – Article no.1, blouse – Article no.2 and the bangles – Article no.3, as belonging to Pushpa. In cross-examination, she has admitted that - 6 - the saree – Article no.1 had a floral design. She has admitted that the color of the blouse – Article no.2 is brownish black. She has also admitted that she was also doing the labour work of rolling Bidis. She has admitted that the factory for which she was rolling Bidis and the factory for which Pushpa was rolling Bidis were different and were located in different localities. She has admitted as true that husband of Pushpa was harassing Pushpa after consuming liquor. She has also admitted that apart from accused no.2, other ladies were also doing the labour work of rolling Bidis. She has admitted that she had never visited Bidi factory where her daughter Pushpa and accused no.2 were working. She has admitted that she had only learnt that accused no.2 was also rolling Bidis for the same factory for which Pushpa was rolling Bidis. She states that she and her son used to extend monetary help to Pushpa. She has admitted that she does not know the name of the bank where Pushpa had an account. She has admitted as true that at the time of the incident, accused no.2 had delivered a child and because of her delivery, accused no.2 was not going to Akole and submitting the rolled Bidis to the factory. 5] Prosecution has examined PW 2 Uttam, step brother of Pushpa. He states that his sister Bayasa was married in 1988 and after her marriage, her name was changed to Pushpa. Pushpa was blessed with son by name Vishal and a daughter named Kanchan. She states that after about 5 to 6 years of her marriage, Pushpa began to reside separately along with her husband in the house of one Popat at Kumbhephal as there was quarrel between Pushpa and her - 7 - mother in law. He has stated that husband of Pushpa used to work as a waiter in the hotel at Akole while Pushpa used to roll Bidis for the factory at Akole. He has also stated that accused no.1 used to come to the house of deceased Pushpa. Pushpa used to travel to Akole from village Kumbhephal either in a public jeep or at times she used to go on foot. On 13.4.1998, deceased Pushpa had gone to village Tahakari to the house of PW 8 Jalindar, who had presented Pushpa with a saree of faint blue color and a matching blouse. On 15.4.1998, Pushpa left her house informing PW 2 Uttam to look after her children and at that time, she was wearing blue colored saree a matching blouse and red bangles. He corrected himself to say that it was a blouse of blackish color. He has also stated that Pushpa was possessing Rs.5,000/- with her. Pushpa had gone to Akole to submit the rolled Bidis, but did not return back in the evening. He states that he had gone to Akole and met husband of Pushpa and enquired from him about the whereabouts of deceased Pushpa. Husband of Pushpa had informed him that Pushpa and accused no.2 had left Akole in a jeep at about 1-45 p.m. Despite searching for Pushpa everywhere, no trace of Pushpa could be found. On 29.6.2005, he had learnt in the village that some skeletons were found in the land of accused no.1 and, therefore, he had gone to see the skeletons. He suspected that the accused may have committed murder of deceased Pushpa as Pushpa was possessing Rs.5,000/- and was wearing ornaments. He has admitted that the Police had shown him the saree, pieces of bangles and the blouse, which he had identified as those of Pushpa. In cross-examination, he has admitted that the population of village Kumbhephal is 3,000, but could not state what was the - 8 - population in 1998. He states that in 1998, he used to open his Pan stall at 7-00 a.m. He has also admitted that the public jeep used to come from Akole upto Kumbhephal and does not know as to how many jeeps were plying between Akole and Kumbhephal. He has admitted that many people from Kumbhephal, Sugaon and Rede used to go to Akole on foot. He could not state as to why it was not stated in his statement that the blouse, which was worn by the deceased was blackish in color and the bangles were red. 6] PW 3 Kiran is a panch witness to the scene of the incident – panchanama at Exhibit 37 i.e. the place where the deceased is alleged to have boarded the jeep. PW 7 Laxman, Sarpanch of the village, also deposes as per the deposition of PW 1 Kusum and PW 2 Uttam. PW 5 Sunil is a panch witness to the panchanama at Exhibit 42 regarding the excavation of the land of accused no.1. Interestingly, the panchanama at exhibit 42 indicates that what was found after excavation was a saree, which was folded and in the folds of the saree, pieces of the skull and about four bones tied by a wire and beneath that, some other bones and beneath the bones, pieces of decomposed blouse. The report of the Chemical Analyser at Exhibit 44 indicates that DNA profile could not be obtained. 7] PW 7 Dattatraya is husband of deceased Pushpa. He has stated about Pushpa rolling Bidis and then going to Bidi factory for depositing the rolled Bidis. He states about friendship between deceased Pushpa and Mandabai. He states about Pushpa being missing and despite efforts to trace her, whereabouts of - 9 - Pushpa could not be located. He states that after searching for Pushpa, the relatives of deceased had assaulted him. He has stated that he had learnt from the villagers that accused nos.1 & 2 were on visiting terms to his house. IN cross- examination, he has admitted that he had been assaulted as deceased had not returned back. He has also admitted that the Police had enquired from him on many occasions as deceased was missing. PW 8 Jalindar, who is a relative of deceased Pushpa, states that on 13.4.1998, deceased and her husband had come to his house and he had presented deceased with a saree and a blouse piece. According to him, the saree was blue colored saree having floral design and the blouse piece was also of the same color. He has identified the articles as the ones presented by him. 8] On the strength of the aforesaid evidence, the appellants stand convicted. The statement alleged to have been made by accused no.1 during Narco Analysis test is wholly inadmissible in evidence. The finding of the bones in the agricultural land of accused no.1 also can not be said to be pursuant to any disclosure memorandum. All that can be said is that the Police had excavated the land of the accused and had found bones wrapped in a saree and beneath it, the decomposed pieces of a blouse. We are extremely doubtful about the identification of the said saree as the one belonging to the deceased. Witnesses are deposing about the saree being that of the deceased after nearly 7 years since the deceased is alleged to have worn that saree. Curiously, we find that if the blouse could decompose, how could the saree remain intact buried beneath the - 10 - ground. The pieces of bones have not been identified as those belonging to deceased Pushpa. There is no evidence at all that the deceased Pushpa was last seen alive in the company of the accused. There is no evidence at all that the accused and the deceased were seen in the village and thereafter the deceased was found missing. We, therefore, find that there is absolutely no evidence whatsoever, which would connect the saree and the pieces of bones as the ones belonging to the deceased. It is unfortunate that the deceased had been missing since 1998 and no trace of her was found. However, in order to sustain the conviction on the basis of circumstantial evidence, the prosecution is required to prove each and every circumstance on which it relies. The circumstances so proved should form a complete chain, which should unerringly point to the guilt of the accused and exclude every hypothesis of the innocence of the accused. In the present case, there is absolutely no evidence, as pointed out by us, that the bones were those of deceased Pushpa. We find the evidence of identification of the saree and the blouse to be extremely doubtful. There is no evidence that the deceased was last seen alive in the company of the accused. Merely because accused no.2 was a friend of the deceased Pushpa, inference of guilt can not be drawn against the accused. Similarly, finding of human bones in the agricultural field of the accused can not lead to an inference that the accused had committed murder of deceased Pushpa and had buried her in their land. There is no evidence as to when those bones were buried. As pointed out by us above the suspicious circumstances that the bones were found wrapped in a folded saree, and if the saree and the bones had been buried together, it is inconceivable that - 11 - the bones were found wrapped in the folded saree. Obviously, at some later point of time, the saree and the bones came to be buried. Since there is no evidence that the bones were of Pushpa, no inference of guilt can be drawn against the accused. 9] After giving an anxious consideration to the submissions advanced before us by the learned counsel for the parties, according to us, there is no evidence for sustaining the conviction of the accused and the accused are entitled to be given the benefit of doubt. 10] Accordingly, this criminal appeal is allowed. The appellants are acquitted of the offences with which they were charged and convicted. Fine, if any, paid by the appellants, be refunded to them. Since bail was refused to the appellant no.1, he be released forthwith, if not wanted in any other case. This Court had granted bail to the appellant no.2, but we are informed that she has not furnished the surety and consequently is undergoing the sentence in jail. She be released forthwith, if not wanted in any other case. (A.V. Potdar, J.) (P.V. Hardas, J.) ndk/cra73708