Vs. State of Maharashtra  Insc 1263 (12 December 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 620 OF 2006 S.B. SINHA 1. The deceased Uttam Sonwale is the
brother-in-law of the appellant.
sister Sarjabai was married to the appellant. He was a resident of village Deulgaon,
Taluka Loha in the District of Nanded. Vimalbai is the wife of the deceased.
The deceased had taken some loan from the appellant at the time of the marriage
of one of his sisters, Savita. Allegedly the appellant was demanding back a sum
of Rs.50,000/- to Rs,60,000/-, from him although the principal amount was only
Rs.5,000/-. Allegedly he did not allow the deceased to sell even a portion of
the family land for the purpose of returning the amount of loan on the ground
that his wife Sarjabai had a share therein. The deceased had also borrowed a
sum of Rs.1,000/- from PW-6 , Nandu Bhalke.
18th December, 1995 PW-6 came to the agricultural land of the deceased, where
he and his wife had been working and demanded back the said amount of
Rs.1,000/-. Appellant and another person Gautam (original accused No.2) also
came there. The deceased was expecting payment of some amount of compensation
from the State. They allegedly decided to leave for Nanded for collecting the
said amount of compensation. At about 3.00 p.m on that day they were allegedly seen together by PW-5, Taterao Sonwale.
The deceased did not return back home. Allegedly on 20th December, 1995 the appellant informed the wife of the deceased that
he had killed him and asked her not to disclose the said fact to anybody. He
undertook to takeover the responsibility of cultivating her land and perform
the marriage of her daughters. No First Information Report was lodged. No
report was also given to the police in regard to the missing of the deceased, Uttam
PW-1, Shrikant Devidasrao Bhore was a resident of Nanded. He came to the police
station, Vazirabad at about 1.00 or 1.30 p.m. on 23rd
informing the Officer Incharge therein that one human skeleton had been seen in
his brother's land. The Investigating Officer visited the place and allegedly
saw a human skeleton, some clothes and a post card. He also found nearby a big
stone having some blood stains. The skeleton was sent for post-mortem on 24th December, 1995 which was received in the hospital
at about 11.00 a.m. on 24th December, 1995. Post- mortem examination was conducted at 10.00 a.m. on 25th December, 1995.
the brain matter, nothing else was found. The post-mortem report purported to
have been seized bore the name and address of the deceased.
the receipt of the post-mortem report, a First Information Report was lodged on
26th December, 2005 by the Officer Incharge.
and Gautam were arrested. At the behest of the appellant, recovery of a knife
is said to have been made.
learned trial court as also the High Court, on analysing the materials brought
on records by the prosecution, found the following circumstances as against the
appellant to record a judgment of conviction against him.
Last seen together with the deceased on 19th December, 1995 ;
Extra judicial confession said to have been made before PW.3, Vimalbai ;
Discovery of bloodstained clothes from the house of the accused.
Discovery of a knife at the behest of the accused from thorny shrubs situate
near the scene of the offence.
Original accused No.2, Gautam was, however, acquitted.
Only a skeleton was recovered. Moot question, therefore, is as to whether
within a period of 4-5 days, a dead body could be skeletonised.
is nothing on record to show that vultures or other animals ate away parts of
the dead body. Had that been so the same would have been noticed by PW-1 and
his brother as well as by the Investigating Officer. At least it would have
found some mention. All parts of the dead body including small intestine were
missing. The dead body was lying in an open field at least for four days. How
apparels and cloths purported to be belonging to the deceased had been found
near the dead body separately is beyond any comprehension. If he was killed by
using a hard and blunt substance on his head as it appears from the post-mortem
report, portion of the clothes of the deceased would still be found over the
skeleton and not at a distance from it.
dead body was eaten away by vultures or other animals the garments would have
also been found in torn condition and beyond recognition. In this situation the
evidence that the garments have been recognized by the mother and wife of the
deceased, for the purpose of identification of the dead body to be that of the
deceased, cannot be accepted.
post card which was purported to have been recovered was not marked as an
exhibit. Nobody proved the contents of the said post card. It is also difficult
to believe that although the post card remained under open sky for a period of
at least four days in the winter season, the same was still readable and could
be found near the dead body.
judgment of conviction cannot be recorded only on the basis of motive. The
circumstance of last seen together becomes relevant only when the death is
proved to have taken place within a short time of the accused and the deceased
being last seen. (See State of Goa vs. Sanjay Thakran : (2007) 3 SCC
755. Matter might have different if a murder of wife is allegedly to have been
committed by a husband within the four walls of a room which was occupied by
is difficult to rely upon extra judicial confession purported to have been made
by the appellant to PW-3 as ordinarily she would have disclosed the same to her
relative and lodged a first information report immediately thereafter.
Discovery of knife at the behest of the appellant also looses much significance
as the prosecution's case itself is that the death was caused by inflicting an
injury by a hard and blunt substance. Discovery, in terms of Section 27 of the
Evidence Act would have been admissible in evidence, provided the recovery was
that of a fact which was relevant to connect the same with the commission of
crime. Recovery of a weapon at the instance of the accused which has no nexus
with the cause of death of the deceased is inadmissible in evidence.
DNA test was conducted for the said purpose. The Investigating Officer even
could not decipher as to whether the dead body is of a male or a female. No
expert was examined to establish that an identification was forensically
HWV Cox's Medical Jurisprudence and Toxicology a detailed discussion has been
made in regard to the time of death as also the identification of a dead body.
According to Cox, even a depressed skull fracture may be seen due to damage
long after death, from the pressure of stones or earth upon the body or even
due to damage during or after recovery of the skeleton.
regard to skeletalisation of the dead-body it is stated :- "The complete
removal of soft tissues again is a very variable process. As mentioned above,
it may occur within a couple of weeks or even few days if animal predators are
unusually active. Much depends upon the environment- especially the
temperature-and the activity of the insects and other animals.
temperate climates, much depends upon the time of year at which the person
died. In Northern Europe, a person dying in the open country in the autumn will
stand much less chance of becoming skeletalised before the next summer than if
he died in the early months of the year with the hot weather yet to come.
very rough generalization, in temperate climates, a body not subjected to much
major animal predation will retain some soft tissue for up to a year and
remnants of soft tissues such as tendon tags, periosteum and joint capsule may
be visible for two to five years.
generalizations are so inaccurate as to be misleading. In the hotter climatic
conditions of the tropics, skeletalisation may occur within weeks, again mainly
due to the massive removal of tissue by insect life and larger animals. The
earliest complete skeletalisation seen in Britain is three weeks during a very hot summer, but there are many reports of
much more rapid skeletalisation in India."
no norms, thus, a dead body would be skeletalised within a period of 3-4 days.
It shall in ordinary course take atleast a few weeks.
indicated hereinbefore the occurrence took place in the month of December. It
cannot be said to be a hot summer days. Even atleast a weeks' time is necessary
for a dead body to be skeletalised even during a very hot summer. The doctor
who performed the post-mortem report did not spell out the possible time of
death. He probably was not in a position to determine the same. He might not
have even been called upon to do so by the Investigating Officer.
What would be the legal parameters for determination of the guilt of the
accused charged for commission of murder on the basis of circumstantial
evidence is now well settled. [See Sharad Birdichand Sarda vs. State of Maharashtra : (1984) 4 SCC 1116 ; Bodhraj vs.
State of Jammu and
Kashmir : (2002) 8
SCC 45 and Sanjay Thakran (supra) ]. This case in our opinion does not satisfy
the tests laid down therein.
For the reasons abovementioned, the impugned judgment cannot be sustained. It
is accordingly set aside. The appeal is allowed. Appellant, who is in custody
shall be released forthwith, if not required in connection with any other case.