The son of the deceased lodged a missing person complaint as the deceased went for morning walk, but

did not return home. The Investigating Officer came to know of the involvement of Accused No. 5 in the
case through an informant. On the basis of his statement, the FIR was altered and the offences under
Sections 120B read with Sections 364, 365, 302 and 201 of Indian Penal Code, 1860 were added to the
same. Subsequently, the rest of the Accused persons were arrested on the basis of the statements of the
witnesses. On the basis of the evidence of Appellant/Accused No. 3, vehicle under mahazar was
recovered on the same day. Appellant/Accused No. 4 was also arrested and on the basis of the disclosure
made in the statement, another vehicle was recovered. Appellant/Accused No. 15 was arrested and on
the basis of the disclosure, a motor cycle and a black coloured shoe kept inside the side box of that
motor cycle were recovered. The final report was filed against Accused Nos. 1 to 17 and one unknown
person. Pursuant to further investigation and apprehension of Accused No. 18, final report was filed
under Section 120B read with Sections 364, 365, 419, 437, 387, 302, 402 and 201 of Indian Penal Code,
1860. The Trial Court convicted and sentenced Accused Nos. 1 to 11 and 13 to 17. Accused Nos. 12 and
18 were acquitted of all charges. The Accused persons preferred appeals against their conviction and the
State preferred an appeal against the acquittal of acquitted Accused before the High Court. The High
Court upheld the order of conviction against all the Accused, except Accused No. 10 who was acquitted
of all the charges. The High Court relied on the testimony of PW-1, the son of the deceased and the
testimony of PW-13, who saw the deceased walking. The next crucial link, according to the High Court
was provided from the evidence of PW-10 and PW-11, who saw some of the Accused bringing the
deceased into the vermicelli manufacturing factory premises. Both the Trial Court and the High Court
treated PW-10 and PW-11 as accomplices, keeping in view their role in the entire incident. The High
Court accordingly, came to the conclusion that the evidence of PW-10 and PW-11 was reliable and could
be considered while examining the guilt of the Appellants. The High Court held that the conviction and
sentence imposed by the Trial Court in respect of all the Accused persons was liable to be confirmed as
the same did not suffer from any infirmity in law. Hence, the present appeals. Held: V. Gopala Gowda, J.,
while allowing the appeals: (i) The prosecution as far as Accused Nos. 3 and A-4 were concerned rested
heavily on the evidence of PW-10 and PW-11, whose evidence was supported by the evidence of PW-33
and PW-34. From a perusal of the evidence of PW-10 and PW-11, it became clear that they were
accomplice witnesses. PW-10 and PW-11 were not granted pardon by any Court and had been arrayed as
prosecution witnesses. The present Court held that the mere fact that pardon has not been tendered by
a court of law does not make an accomplice cease being an accomplice. PW-10 and PW-11 being
accomplice witnesses, their evidence must be treated as such, and subject to the same test of reliability
of the evidence of an accomplice or approver are subject to. [51],[56],[58] and[60] (ii) While the
evidence of an accomplice can be used to convict an Accused, as a Rule of prudence, the Court must first
ensure that the testimony of the accomplice is corroborated in material particulars by adducing
independent evidence. The independent evidence must be such that it corroborates with the testimony
of the accomplice in material particulars, that is, the corroboration must be both in respect of the crime
as well as the identity of the Accused. [62] and[64] (iii) Even at the vermicelli factory premises, Accused
No. 3 stayed downstairs, while it was PW-11 who went upstairs and actually saw the deceased tied to
chains and the room where he was kept. PW-11 only saw Accused No. 15 at the site, carrying a tiffin
parcel. Accused No. 4 was not mentioned anywhere at the vermicelli factory at all. Further, as far as
Accused No. 3 was concerned, another evidence used against him is the testimony of PW-32 and PW-33
who have admitted to creating the evidence of the death certificate, which was allegedly required by
Accused No. 3 to produce at the crematorium in order to cremate the deceased. In light of the fact that
PW-32 has admitted to issuing the death certificate without even seeing the dead body of the deceased
at the request of PW-33. PW-33 has stated that he only did so at the instance of Accused No. 3. There
was no other evidence on record to connect Accused No. 3 to the death certificate. Even if the death
certificate was taken to be genuine, it did not in any way connect Accused No. 3 to the deceased, thus
rendering the claim of the prosecution doubtful and shaky. As far as Accused No. 15 was concerned, the
crucial evidence on which reliance was placed upon by both the courts below to convict him was the
recovery of shoes on his direction. PW-31, a supervisor at the vermicelli factory, in her deposition stated
that she saw a person at the vermicelli factory premises on the next day, who stated that he had come to
take something. He took a shoe from the factory. Both the courts below, however, failed to notice that
the evidence of PW-31 could not be used against Accused No. 15, which erroneously done by the courts
below. Further, PW-1 and PW-2 both stated in their testimony that the particular shoe did not belong to
the deceased. Thus, there was nothing on record which connected Accused No. 15 either to the crime,
or to the deceased. [65] and[66] (iv) Thus, the evidence of PW-10 and PW-11 was not reliable for
recording the finding of guilt on the charges against the Accused Appellants. Even if it was placed
reliance upon, Accused Nos. 3, 4 and 15 could not be convicted of the offences of kidnapping and
murder, more so in light of the fact that they had been acquitted of the charge of criminal conspiracy
under Section 120B of Indian Penal Code by the courts below. There was no basis for convicting them
under the other Sections like 302 and 365 of Indian Penal Code. After having found that the Accused
persons were not guilty under Section 120B of Indian Penal Code, it was the duty of the Trial Court to
establish the involvement of each of the accused persons individually in each offence for which they had
been charged to hold them guilty under the same. [67] (v) For Section 109 of Indian Penal Code, it is not
enough to show a conspiracy. It has to be taken a step further. What needs to be proved is an act
committed in furtherance of that conspiracy. In the instant case, both the courts below did not find
sufficient evidence to convict the Accused Appellants of the charge under Section 120B of Indian Penal
Code. Once the charge under Section 120B of Indian Penal Code falls, in order to convict the Accused
Appellants under Section 302 read with Section 109 Indian Penal Code, or Section 365 read with Section
109 of Indian Penal Code, what was needed to be established was the happening of some overt act on
the part of the Accused Appellants. There was no evidence except the testimony of PW-10 and PW-11
which links the Accused Appellants to the crime. [68] (vi) The Trial Court erred in convicting the Accused
Appellants, more so, after having acquitted them of the offence of criminal conspiracy punishable under
Section 120B of Indian Penal Code. Even the High Court adopted the same erroneous approach while re-
appreciating the evidence against the Accused Appellants and attempting to look for a complete link, as
if the Accused persons had been convicted for the charge of criminal conspiracy as well. This shows a
gross non-application of mind on the part of the courts below, which certainly cannot be allowed to
sustain by the present Court, as the same was wholly erroneous in law. Therefore, these criminal appeals
must be allowed in exercise of the power of the present Court under Article 136 of the Constitution of
India and the Accused Appellants were entitled for acquittal from the charges. The impugned judgment
and order was set aside passed by the High Court in upholding the judgment and order passed by the
Trial Court convicting the Appellants. The prosecution had not proved its case beyond reasonable doubt
against the Accused Appellants. [69] and[70] Arun Mishra, J., while dismissing the appeals: (vii) The
abduction of the deceased was proved and deceased had been murdered soon after his abduction in
two days and thereafter his body had been cremated under the name of a fictitious person. It was for
the Accused persons to satisfy the court how the abducted victim was dealt with by them. In the
absence of such explanation it is open to the court to draw a presumption that the abductor was the
murderer also. [96] (viii) It was apparent that the deceased was killed in factory and the fact that the
Appellants were not persons who brought down body from upstairs is not enough to exonerate
Appellants considering the established facts and circumstances in case they have been rightly held guilty
of murder also. [102] (ix) The Trial Court rightly found that the Appellants had acted upon the conspiracy
of Accused Nos. 1 and 2 and had been found guilty of offences under Sections 365, 387, 302, 347, 364,
109 and 201 of Indian Penal Code. [107] (x) There was nothing to doubt the statement of PW-10
regarding purchase of chain. The Trial court with respect to commission of offence under Section 387 of
Indian Penal Code rightly gave the finding that the prosecution established its case to the effect that the
Accused Nos. 1 to 11 and 14 to 17 had committed the offence punishable under Section 387 of Indian
Penal Code beyond all reasonable doubt. [118] (xi) When charge under Section 109 had been found
established, mere their acquittal under Section 120B was of no avail to them. Charges which were
framed were specific ingredients of Section 109 had been rightly found to proceed by both the courts
below. Their acquittal under Section 120B of Indian Penal Code cannot help them as offences of both
Sections were separate. Section 120B found established against Accused Nos. 1 and 2 and other charges
against Accused/Appellants. [119] (xii) Commission of offence under Section 109 had been established
along with other sections. The conviction and the sentence imposed by the Trial Court and the High
Court was absolutely proper and no benefit could be obtained by acquittal under Section 120B of Indian
Penal Code. That does not adversely impinge upon the ingredients of Section 109 of Indian Penal Code
and other Sections for which he had been found guilty. There was no force in submission of Appellants
that once Appellants have been acquitted under Section 120B the entire case fell down. [121] (xiii) As
per the case of prosecution the body of the deceased was fully burnt as such the recovery of certain
remains which was made after several months from the cremation ground was of no utility. Remains
would not have been at cremation ground after 2 1/2 months when everyday bodies are cremated. Their
seizure and the forensic science report regarding that were of no value. The conviction and sentence
imposed by the Trial Court as affirmed by the High Court called for no interference in the appeals. [126]

SomasundarHeld, in a case where evidence was of a circumstantial nature, circumstances from which
conclusion of guilt was to be drawn were, in first instance, to be fully established and all facts so
established should be consistent only with hypothesis of guilt of Accused. Circumstances should be of a
conclusive nature, and they should be such as to exclude every hypothesis but one proposed to be
proved. There must be a chain of evidence so complete that, it would not leave any reasonable ground
for drawing a conclusion consistent with innocence of Accused and it must be such as to show that,
within all human probability the act must have been done by Accused. Prosecution, in present case, had
examined four set of witnesses. First set of witnesses were the witness who had proved various
circumstances. Second set of witnesses were Doctors who had established that, deceased was raped and
murdered. Third set of witnesses were the panchas who had proved the panchanamas which were
drawn by police and the last and fourth set of witnesses were Investigating Officers who had carried out
the investigation. Regarding admissibility of evidence, loosened standards prevail in a conspiracy
trial.Contrary to the usual rule, in conspiracy prosecutions any declaration by one conspirator, made in
furtherance of a conspiracy and during its pendency, was admissible against each co-conspirator. Despite
the unreliability of hearsay evidence, it was admissible in conspiracy prosecutions. Accused, had
miserably failed in discharging the burden which was cast on them.am vs. State (28.09.2016 - SC)

arguments

Held, act of abduction, rape and murder had been committed by Accused in a diabolical and cold
blooded manner without a slightest hesitation in their mind and undeterred by any consequences on
victim or consequences which would entail, if they were caught.It had been established that, there was
preplanned conspiracy and tacit agreement between two Accused to commit said ghastly act of
abducting young female while using deceitful means and by inducing her to travel in a cab by giving her
false sense of security Other residents gathered there. Neighbouring persons like Monika Kamble,
Rohini, Rashmi etc. gathered there. People who gathered there, assaulted th

The State of Maharashtra vs. Babasaheb Maruti Kamble (10.07.2014 - BOMHC) : MANU/MH/2589/2014

The victim girl was the daughter of PW-1 Sharda. Sharda was residing at Teen-dongri, Kranti Nagar,
Goregaon (W), Mumbai along with her husband and children including the victim girl. The victim girl was
about 7 years old at the time of the incident. The appellant was residing in Room No. 149 which is
adjacent to the house of Sharda, hence, he was known to Sharda and her family. The appellant was
residing alone in his house. The incident occurred on 28.10.2011. On that day, it was festival of
"Bhaubij". Sharda was giving food to her children. At that time, the accused called the victim girl i.e. the
younger daughter of Sharda and asked her to bring chili and coriander. He insisted that he wanted to
have his food and therefore, he required chili and coriander. Hence, Sharda sent her daughter i.e. victim
girl with him. As her daughter did not return home for about 30 to 40 minutes therefore, Sharda went to
the house of the accused in search of her daughter. She saw that the accused was standing in the door-
way and he was obstructing her way. Sharda enquired with the accused about her daughter and asked
him where he had sent her daughter. The accused replied that he had not sent her daughter anywhere
and he was not aware of whereabouts of her daughter. Thereafter, Sharda and her elder daughter Sneha
went in search of the victim girl in the vicinity of Kranti Nagar but they could not find her till 6.00 p.m.
Sharda then called her husband who was working in a Sweet-shop at Dombivli as a labourer and
informed him that the accused had called their daughter and thereafter their daughter had not returned
home. Her husband asked Sharda to go again to the house of the accused and search for their daughter
in his house. Thereafter, Sharda along with her daughter Sneha again went to the house of the accused.
When they went to the house of the accused, they saw a pair of slippers near the door in the house of
the accused. Sharda identified the said slippers as that of her daughter i.e. the victim girl. Sharda then
bent down to see. At that time, she saw small hand of her daughter underneath the bed and only fingers
could be seen by her. She found her daughter was underneath the bed. She pulled her daughter and saw
that she was in naked condition. There were injuries on her person. Her eyes and face were blackened.
Blood was oozing out from her private part. Sharda and her daughter shouted for help. Other residents
gathered there. Neighbouring persons like Monika Kamble, Rohini, Rashmi etc. gathered there. People
who gathered there, assaulted the accused and caught him. Sharda with the help of neighbours, took
her daughter i.e. victim girl to Siddharth Hospital. In the hospital, the Medical Officer examined the
victim girl and declared her dead. Goregaon Police Station was informed about the said incident through
police control room that one small girl was raped and the accused was caught by the residents. PW-22
Police Inspector Kasbe informed his superiors and on making entry in the station diary, he proceeded
towards the spot i.e. Room No. 149 at Kranti Nagar, Goregaon (W). When Police Inspector Kasbe reached
the spot, he found the victim girl was already taken to Siddharth Hospital. Hence, he proceeded to
Siddharth Hospital. He made enquiry with the complainant Sharda. Sharda narrated the incident to him.
Police Inspector Kasbe recorded statement of Sharda in the hospital and on telephone informed the
police station to register an offence against the accused. The said F.I.R. was registered. Thereafter,
investigation commenced. Dead body of victim girl was referred to Cooper Hospital for post-mortem
examination. PW-12 Dr. Gajare performed the post-mortem on the dead body of the victim girl. Dr.
Gajare found that the deceased victim girl was forcibly subjected to sexual intercourse and cause of
death was "head injury with compression of neck". After completion of investigation, the charge sheet
came to be filed.

The State of Maharashtra vs. Babasaheb Maruti Kamble (10.07.2014 - BOMHC) : MANU/MH/2589/2014

The State of Maharashtra vs. Babasaheb Maruti Kamble (10.07.2014 - BOMHC) : MANU/MH/2589/2014

The State of Maharashtra vs. Babasaheb Maruti Kamble (10.07.2014 - BOMHC) : MANU/MH/2589/2014