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2009 DIGILAW 1778 (BOM)

Dinesh s/o Ruprao Band v. State of Maharashtra

2009-12-19

A.P.LAVANDE, PRASANNA B.VARALE

body2009
Judgment :- A.P. LAVANDE, J. Both these appeals are being disposed of by common Judgment since they arise out of the Judgment and order dated 30th December, 2003 passed by the 2nd Ad hoc Additional Sessions Judge, Yavatmal in Sessions Trial No. 126/2001. By the impugned Judgment and order the appellant in Criminal Appeal No. 198/2004 (hereinafter referred to as ‘the accused’) has been convicted for the offence punishable under Sections 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- in default to undergo R.I. for six months and to suffer R.I. for seven years and also to pay a fine of Rs. 1000/- in default to undergo R.I. for three months respectively. Both the sentences have been ordered to run concurrently. By the said Judgment the appellant who was the original accused no.1 before the trial court has been acquitted of the offences punishable under Sections 363 and 364 of the Indian Penal Code. By the said Judgment the original accused no.2 Vinod Ruprao Band and original accused no. 3 Smt. Kusum Ruprao Band have been acquitted for the offences punishable under Sections 363, 364, 302 and 201 read with Section 34 of the Indian Penal Code. Criminal Appeal No. 198/2004 has been filed by the accused challenging his conviction and sentence imposed upon him whereas the Criminal Appeal No. 345/2004 has been filed the State challenging the acquittal of the accused for the offences punishable under Sections 363 and 364 of the Indian Penal Code. 2. Briefly, the prosecution case is as follows: Informant Sunita Khole and her husband Prakash Khole own their house at Pachgade Layout, Bhosa Road, Yavatmal. They were residing with their two sons Swapnil and Shreyash @ Bitu, daughter Neha and parents of Prakash Khole. Shreyash at the relevant time was one year and ten months old and used to go to the School. Prakash along with his family used to live on the first floor of the house and five tenants were occupying different blocks on the ground floor of the said house. Accused Dinesh and his brother Vinod are the sons of Kusum who were arrayed as accused 1 to 3 respectively in the trial. The block occupied by the three accused was adjacent to the stair case by which informant and her family members used to pass. Accused Dinesh and his brother Vinod are the sons of Kusum who were arrayed as accused 1 to 3 respectively in the trial. The block occupied by the three accused was adjacent to the stair case by which informant and her family members used to pass. Prakash Khole was having vehicle Tata Sumo which was being driven by driver Nandu. About ten days before the incident which occurred on 2.1.2001 Prakash Khole had sold the said vehicle and he was in possession of the substantial cash generated from the sale of the said vehicle. Rambhau Khole father of Prakash Khole used to take deceased Shreyash and Swapnil Khole to the School in which they were studying. 3. On 2.1.2001 at about 11.15 a.m. as usual Swapnil got down from the first floor and on seeing him Rambhau enquired as to where Shreyash was to which Swapnil replied that Shreyash had already got down. Rambhau called name of Shreyash and since he was not traceable, searched for him. Since Shreyas was missing there was commotion in the house. Everybody started searching for him. They started inquiry with the driver Nandu and also made inquiries from the tenants including all the three accused but they claimed that they had not seen Shreyas. At about 1.30 p.m. on the same day there was a phone call received at the house of the informant stating that Shreyas was safe and they should come to Nasik S.T. Stand to collect him. Therefore, Sunita Khole lodged report about missing of her child and about the phone call to Police Station, Yavatmal City. Police registered the offences under Sections 363 and 364 of the Indian Penal Code against unknown persons. Police went to the spot and prepared spot panchanama. Investigation was taken up. During the investigation statements of several witnesses were recorded. In the course of investigation it transpired that there was a love affair between accused Dinesh and Vaishali Gavai who was staying on the ground floor as tenant. On 15.1.2001 the police came to know that Vaishali Gavai and Sapna Shukla who was working in the S.T.D. Booth had run away from their homes and got married by going to Temple at Mahur. Police suspected that both these ladies might have been involved in kidnapping of Shreyas since both them could not have a son of their own. On 15.1.2001 the police came to know that Vaishali Gavai and Sapna Shukla who was working in the S.T.D. Booth had run away from their homes and got married by going to Temple at Mahur. Police suspected that both these ladies might have been involved in kidnapping of Shreyas since both them could not have a son of their own. Both of them were arrested by the Police but after few days they were released. Sapana Shukla suspected that accused Dinesh was involved in kidnapping of the child. Upon suspicion Dinesh-the accused was arrested. While in custody he made a statement pursuant to which the spot from where the dead body of Shreyas which was burnt, ash, pieces of bones and wood etc. were discovered near the Babul tree in the Mandev forest. The Police found ash and pieces of bones, pieces of logs of wood and padpas which were partly burnt and also unburnt pieces of gunny bags. Police prepared spot panchanama and seized these articles found on that spot. During investigation it was revealed that the accused had purchased pieces of woods, padpas, petrol, match box and rock oil for the purpose of burning the dead body of Shreyas. The statements of the persons from whom he had purchased these articles were recorded. The Police sent pieces of bones to the medical expert to enquire whether they belonged to human being and whether any test like C. A. analysis and D.N.A. Test was necessary. Doctor informed the police that D.N.A. Test in respect of the bone was necessary. The police accordingly informed the informant and her husband parents of the deceased Shreyas to accompany them to the Laboratory at Hyderabad. The parents of Shreyas went to Hyderabad with police. The Chief of the Laboratory at Hyderabad after conducting D.N.A. test with the help of bones and blood samples, came to the conclusion that bones were of the biological offspring of complainant and her husband Prakash. Police collected certificate from the Laboratory at Hyderabad. The police seized autorickshaw which was used by Dinesh to carry out the dead body of the child. Seized articles were sent for analysis to C.A. Nagpur. Police collected certificate from the Laboratory at Hyderabad. The police seized autorickshaw which was used by Dinesh to carry out the dead body of the child. Seized articles were sent for analysis to C.A. Nagpur. During investigation, the investigating officer came to the conclusion that accused Dinesh with the help of his brother Vinod and mother Kusum had kidnapped the child Shreyas while he was getting down from his house to go to the School and dragged him to their block and to prevent him from shouting his neck and mouth were pressed due to which he died. The accused in order to destroy the evidence in the matter burnt the dead body of Shreyas by taking it to the Mandev Jungle. Accordingly the charge sheet for the offences punishable under Sections 363, 364, 302 and 201 read with Section 34 was filed against the three accused before the Chief Judicial Magistrate, Yavatmal. 4. Since the offence punishable under Sections 364 and 302 of the Indian Penal Code were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Yavatmal who made it over to the Additional Sessions Judge, Yavatmal. All the three accused were charged for the offences punishable under Sections 363, 364, 302 and 201 read with Section 34 of the Indian Penal Code. The accused pleaded not guilty and claimed to be there. The defence of the accused was of total denial. 5. In order to prove the charges against all the accused the prosecution examined in all twenty three witnesses and produced several documents. The learned Additional Sessions Judge, upon appreciation of evidence convicted the appellant original accused no.1 for the offence punishable under Sections 302 and 201 of the Indian Penal Code and acquitted him for the offences punishable under Sections 363 and 364 of the Indian Penal Code. All other two accused were acquitted of the offences for which they were charged. 6. Mr. Patwardhan, learned counsel for the accused in Criminal Appeal No. 198/2004 submitted that there is no cogent evidence led by the prosecution to prove the complicity of the accused in the commission of the crime. All other two accused were acquitted of the offences for which they were charged. 6. Mr. Patwardhan, learned counsel for the accused in Criminal Appeal No. 198/2004 submitted that there is no cogent evidence led by the prosecution to prove the complicity of the accused in the commission of the crime. The learned counsel further submitted that the motive for commission of the crime by the accused has not been established and there is absolutely no evidence on record to establish that the accused had knowledge about sale of the vehicle by the father of deceased Shreyas. The learned counsel further submitted that the conduct of the accused soon after Shreyas was missing was consistent with his innocence inasmuch as the accused himself participated in the search of missing Shreyas. According to Mr. Patwardhan, discovery of the spot where burn ashes and bones were found allegedly at the instance of the accused has not been proved by the prosecution and moreover DNA test does not establish that the bones were of biological child of Prakash Khole and his wife Sunita Khole. He further submitted that the evidence relied upon by the trial Judge regarding purchase of kerosene, match box, wood allegedly used by the accused in setting fire to the dead body of Shreyas does not inspire confidence inasmuch as all these witnesses were not knowing the accused prior to the incident and no identification parade was held to get the accused identified by all these witnesses. Mr. Patwardhan further submitted that the circumstantial evidence led by the prosecution is not sufficient to connect the accused with the crime of murder of Shreyas beyond reasonable doubt and as such conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code is unsustainable in law. In support of his submissions, the learned counsel relied upon the following Judgments; i) Mahmood vs. State of Uttar Pradesh 1976 CRI. L.J.. 10. ii) Bakshish Singh vs. The State of Punjab 1971 CRI. L.J., 1452; iii) Premjibhai Bachubhai Khasiya vs. Sate of Gurarat and another. 2009 CRI. L.J., 2888; iv) Ashish Batham vs. State of Madhya Pradesh 2002 CRI. L.J. 4676. 7. Per contra, Mr. L.J.. 10. ii) Bakshish Singh vs. The State of Punjab 1971 CRI. L.J., 1452; iii) Premjibhai Bachubhai Khasiya vs. Sate of Gurarat and another. 2009 CRI. L.J., 2888; iv) Ashish Batham vs. State of Madhya Pradesh 2002 CRI. L.J. 4676. 7. Per contra, Mr. T.A.Mirza, learned A.P.P. appearing on behalf of the State submitted that the conviction of the accused for the offence punishable under Section 302 of the Indian Penal Code does not warrant any interference by this Court since circumstantial evidence unerringly points to the guilt of the accused and the tests laid down by the Apex Court for recording conviction of the accused based on circumstantial evidence have been satisfied in the present case. Mr. Mirza, therefore, submitted that the circumstances in no uncertain terms establish the guilt of the accused. 8. Mr. Mirza in support of Criminal Appeal No. 345/2004 preferred by the State submitted that the learned Additional Sessions Judge having found that the accused had committed murder of deceased Shreyas ought to have convicted the accused for the offence punishable under Section 364 of the Indian Penal Code inasmuch as it is inconceivable and impossible that the accused could commit murder of Shreyas without kidnapping him having regard to the fact that Shreyas was hardly two years old at the time of the incident. Mr. Mirza further submitted that the accused having been found to have murdered the deceased the only conclusion that can be drawn is he committed murder after kidnapping the child Shreyas. He, therefore, submitted that the acquittal of the accused for the offence punishable under Section 364 of the Indian Penal Code is liable to beset aside. In support of his submission, Mr. Mirza relied upon the Judgment of the Apex Court in Sucha Singh vs. State of Punjab (AIR 2001 Supreme Court, 1436. 9. Mrs. Kalsi, learned counsel appearing for the accused in Criminal Appeal No. 345/2004 preferred by the State submitted that there is absolutely no evidence led by the prosecution to establish the offence of kidnapping against him. She, therefore, submitted that the appeal preferred by the State against the acquittal of the accused for the offence under Section 364 is liable to be set aside. 10. We have carefully considered the rival submissions, perused the record and the Judgments relied upon. She, therefore, submitted that the appeal preferred by the State against the acquittal of the accused for the offence under Section 364 is liable to be set aside. 10. We have carefully considered the rival submissions, perused the record and the Judgments relied upon. In order to prove the offences of murder and kidnapping against the accused the prosecution has relied upon the following circumstances. i) Victim Shreyas was found missing at about 11.30 a.m. on 2.1.2001 and thereafter he was never traced; ii) Accused was knowing that Prakash Khole (P.W.7) had sold his four wheeler and substantial cash received from the sale was with him. iii) Motive. The accused had kidnapped Shreyas with a view to compel his parents to pay ransom; iv) Purchase of petrol, rock oil, match box and fire wood by the accused on the date of incident. v) Phone call was made by the accused at S.T.D. Centre on 2.1.2001 at Yavatmal. vi) Discovery of spot where burnt ash and bones and other articles were found at the instance of the accused. vii) D.N.A. Test conducted by G. Venkateshwar Rao (P.W.22) discloses that the bones were of the biological child of Prakash Khole and Mrs. Sunita Khole. viii) C.A. Report discloses the presence of kerosene on the ash, pieces of half burnt gunny bag and earth. ix) Spot panchanama. 11. Insofar as the first circumstance is concerned, the same is not seriously in dispute. The evidence of Sunita Khole (P.W.1) discloses that on 2.1.2001 she was residing in her residential house at Yavatmal with her husband, children and in – laws. She had three children viz. Neha, Swapnil and Bittu @ Shreyas. Her evidence also discloses that they were residing on the first floor and on the ground floor there were five tenants occupying five different blocks. The family of Band was staying as tenant on the ground floor. The accused along with his brother Vinod and mother Kusum were staying in one block consisting of two rooms. They were staying just near the stair case and in front of their home there was a porch. At the relevant time her husband was serving at Parva. On the day of incident here husband left for Parva at 8 a.m. Her son Swapnil and Shreyas were in the house and daughter Neha had gone to the school. Her father-in-law Rambhau was in the house. At the relevant time her husband was serving at Parva. On the day of incident here husband left for Parva at 8 a.m. Her son Swapnil and Shreyas were in the house and daughter Neha had gone to the school. Her father-in-law Rambhau was in the house. At about 11.15 a.m. her father-in-law came in the porch for taking Swapnil to the School and thereafter he went to toilet and removed his scooter outside the house. He called Swapnil for going to the School. Since Shreyas @ Bitu had not come along with Swapnil, Rambhau inquired from Swapnil as to why Bittu had not come down to which Swapnil told him that Bittu had already come down from the first floor and he had followed him (Rambhau). Thereafter, Rambhau started searching Bittu and started calling his name but Bittu could not be traced. Thereafter her mother-in-law told her to stop collecting water and to search Bittu. She also came down on the ground floor and started searching Bittu. The children present there told her that they had not seen Bittu. At that time accused Denesh was standing at the door of his house. She also inquired from him about Bittu. He told her that he had seen Bittu prior to about 15 to 20 minutes. Thereafter, accused went inside the house and his mother Kusum came out. She also told her that she had not seen Bittu. Again she started searching for Bittu in the house of neighbours but he could not be traced. Thereafter she along with Mrs. Sharma and Kusumbai went to the house of Nandu who was residing near Hanuman Akhada, Yavatmal. Nandu was not present in the house but his mother informed her that Bittu had not come to their house with Nandu. Thereafter, all of them returned back. 12. The witness further deposed that on the very same day at about 1.45 p.m. there was a phone call at her house which was received by her mother-in-law. She was present near the phone. She heard her mother-in-law asking as to where they should come. Since she thought that phone call was in relation to her son she took the receiver of the phone and inquired as to where she should come. She received reply that she should come at Nasik Bus Stand and thereafter the phone was disconnected. She heard her mother-in-law asking as to where they should come. Since she thought that phone call was in relation to her son she took the receiver of the phone and inquired as to where she should come. She received reply that she should come at Nasik Bus Stand and thereafter the phone was disconnected. Thereafter, she made inquiry with her mother-in-law who told her that she was informed on phone that her son who was missing was safe and they should come at S.T. Stand at Nasik. Thereafter, they thought that somebody might have kidnapped Bittu. So she went to the Police Station Yavatmal City and lodged report which was recorded by Police Station Officer as per her say. The witness identified the signature on the report Exh. 60 and stated that the contents were correct. She identified all the three accused present in the court as her tenants. She further deposed that Nandu was driver on their Tata Sumo Vehicle. Her husband sold Tata Sumo prior to this incident and the accused Dinesh was aware that they were having cash received from the sale of the vehicle. She further deposed that after the incident police had taken her and her husband to Hyderabad for DNA examination. She identified the identification form of her husband and photograph of her husband on the said form. She identified the declaration Exh. 63. She further deposed that on 21.2.2001 her husband had come to the house with police as he had come to know that Dinesh committed murder of their son while he was coming down on the ground floor. In cross-examination she stated that about 11 to 11.30 p.m. she was called to Police Station, Yavatmal and Police made inquiry with her but she did not remember whether they had recorded her statement. She further deposed that she did not suspect that her driver Nandu had kidnapped her son. She could not tell when she disclosed to the Police about the behaviour of the accused. She denied the suggestion that accused Dinesh was not aware about the cash received from the sale proceeds of the vehicle and that the cash of the sale-proceeds was with them. She denied the suggestion that after the incident accused Dinesh was not disturbed. The evidence of this witness is substantially corroborated by her husband Prakash (P.W.17) and Rambhau (P.W. 16) grand father of the deceased. She denied the suggestion that after the incident accused Dinesh was not disturbed. The evidence of this witness is substantially corroborated by her husband Prakash (P.W.17) and Rambhau (P.W. 16) grand father of the deceased. 13. Prakash Khole (P.W. 17) has also deposed that on 2.1.2001 he went to Parva at 8 a.m. for duty and he returned to Yavatmal at about 2.30 p.m.. He was informed near the gate by Dinesh that Bittu was kidnapped and they were called at Nasik for taking him. He thereafter went to Dhamangaon Railway Station and took search of Bittu at Railway Station and other places but he could not find him and as such he returned back to the house. Thereafter on 21.1.2001 police called him at Superintendent of Police Office, Yavatmal where accused Dinesh was brought after arrest. Thereafter, witness deposed that Dinesh told that while Bittu was coming down on the ground floor he took Bittu to his house. In the meanwhile grandfather of Bittu gave call and, therefore, he forcibly pressed his mouth. He kept the dead body in a gunny bag and put it on the sajja of his house. Thereafter, he realised that his son was no more and as such he returned to his house. Thereafter, again police called him after some time at Police Station, Yavatmal City and asked him to accompany them. He went to Mandev Forest Area on his vehicle and police went to the spot with accused Dinesh who showed the spot where some ash was lying. Thereafter, from the ash bones were traced out. Thereafter he returned home. Witness further deposed that after 2nd January, 2001 Dinesh was always going out of station. Prior to this incident he had sold four wheelers for Rs. 2..45 lacs. The witness further deposed that on 14.3.2001 he was called in the Police Station and was told by P.I. Yempalliwar that he had to come along with him to Hyderabad for giving sample of his blood for DNA test. He asked him to proceed to Hyderabad on the next morning. Thereafter he along with his wife, P.S. I. Gavai, Police Constable Mr. Gaiakwad went to Hyderabad. They reached Hyderabad at 2.00 p.m.. At Hyderabad he and his wife were given identification Forms in the laboratory which were filled by them and thereafter he gave declaration. He also identified his photograph on the said form. Thereafter he along with his wife, P.S. I. Gavai, Police Constable Mr. Gaiakwad went to Hyderabad. They reached Hyderabad at 2.00 p.m.. At Hyderabad he and his wife were given identification Forms in the laboratory which were filled by them and thereafter he gave declaration. He also identified his photograph on the said form. He also identified declaration Exh. 62 given by his wife and signed by him and P.S.I. Gavai as a witness. He also identified the photograph of his wife on the declaration. He further deposed that at the laboratory the attendant took his blood as well as blood of his wife. The witness deposed that all the three accused were residing in his house as tenants. He identified all the three accused. In the cross-examination the witness stated that when he came to Yavatmal he did not know whether the police were searching Bittu. He further stated that on the next day he had gone to Nasik along with P.S.I., Gaikwad and P.S.I.,Gholap. He was confronted with the police statement that there is no mention that accused had traced out the bones from ash and handed over to police. Witness has denied that accused had not made any statement before the police as stated by the witness. 14. The evidence of Rambhau Khole (P.W. 16) the grandfather of deceased also corroborates the version of above referred two witnesses that deceased Shreyas was found missing on 2.1.2001 at about 11.15 a.m. The witness has also deposed that all the three accused were aware that they had sold the Tata Sumo about 8 days prior to the incident and they were having cash amount received from the sale proceeds of the vehicle. In cross-examination of these witnesses nothing tangible has been brought on record to discredit his testimony that Bittu was found missing at 11.15 a.m. on 2.1.2001. Thus, the evidence of above three witnesses clearly establishes that deceased Shreyas was found missing at 11.15 a.m. on 2.1.2001 and thereafter he was never traced. 15. The evidence of the above three witnesses also establishes that about 8 days prior to the incident Prakash had sold Tata Sumo and he had received the amount of Rs. 2.45 lacs as sale proceeds of the vehicle. 15. The evidence of the above three witnesses also establishes that about 8 days prior to the incident Prakash had sold Tata Sumo and he had received the amount of Rs. 2.45 lacs as sale proceeds of the vehicle. Insofar as the knowledge of the accused about the availability of the said sale-proceeds of the vehicle is concerned, there is no direct evidence available on record that accused had knowledge about cash received from the sale of vehicle. However, having regard to the fact that the accused was residing on the ground floor as tenant, it was quite natural for the accused to know that Prakash Khole father of the deceased must have received substantial amount from the sale of the vehicle although the accused could not be attributed the knowledge of the exact amount received by Prakash Khole from the sale of the vehicle. Having regard to the fact that the accused and his family members were residing on the ground floor which is near the entry of the building it was quite natural for the accused to know about the sale of the vehicle by Prakash Khole. 16. Insofar as motive is concerned no direct evidence has been led by the prosecution and having regard to the nature of the crime allegedly committed by the accused and the circumstances in which deceased appears to have died the prosecution can not be expected to prove motive by leading cogent evidence. However, we shall deal with this aspect little later when we deal with the aspect of recovery. But, since the prosecution has been able to establish that the spot where ash and bones were found was discovered at the instance of the accused and it has been proved by the prosecution that the said bones were of biological child of Prakash and Sunita Khole. The necessary inference which can be drawn is that the accused must have taken Shreyas in his house with a view to demand ransom from his parents as they had cash with them received by them from the sale of the vehicle. 17. The next circumstances relied upon by the prosecution is purchase of petrol, rock oil, firewood and match box by the accused on 2.1.2001. According to the prosecution, all these articles were used by the accused for burning the dead body of Shreyas in Mandev forest. 17. The next circumstances relied upon by the prosecution is purchase of petrol, rock oil, firewood and match box by the accused on 2.1.2001. According to the prosecution, all these articles were used by the accused for burning the dead body of Shreyas in Mandev forest. In order to prove purchase of petrol on 2.1.2001 the Bombaywala Petrol Pump at Yavatmal the prosecution examined Raju Bapuraoji Kuthe (P.W. 4) and Firozuddin Sheikh (P.W.6) who at the relevant time were working at the said Petrol Pump. Both of them have deposed that on 3.1.2001 at about 7.00 a.m. accused came to the Petrol Pump with plastic can and purchased one litre petrol from the Petrol Pump and paid price amount of Rs. 31/-. Raju Kuthe (P.W.4) deposed that he had seen accused Vinod in the Bus Stand area, Yavatmal and, therefore, he could identify accused no. 2 Vinod as a person who was in the autorickshaw in which both the accused came to the Petrol Pump. The evidence of Firozuddin Sheikh (P.W. 6) is on the similar lines. Sk. Ghani s/o Sk. Hasan (P.W.5) who was examined by the prosecution to prove the purchase of 15 kg. firewood deposed that on 2.1.2001 at about 6 pm. accused purchased 15 kgs firewood for Rs. 18/-. The firewood consisted of cut pieces and padpas. He identified accused no.1 in the trial court as the same person to whom he had sold firewood. The prosecution examined Dinesh Nanvatkar (P.W. 9) to prove the sale of rock oil to the accused at about 6 p.m. on 2.1.2001. According to this witness, he sold two and half litres rock oil to the accused for Rs. 20/- in a dabki which was of white dirty colour. Similarly, the prosecution examined Vijay Pajgade (P.W. 12) to prove the sale of match box. The purchase of match box was made by the accused at Gajanan Kirana Stores situated at Pajgade Layout, Yavatmal. According to this witness at about 7 to 8 p.m. Dinesh Band the accused purchased match box from his shop for 50 paise. He claimed that he knew Dinesh at the time of the incident as he was tenant of Prakash Khole. 18. According to this witness at about 7 to 8 p.m. Dinesh Band the accused purchased match box from his shop for 50 paise. He claimed that he knew Dinesh at the time of the incident as he was tenant of Prakash Khole. 18. We find it extremely difficult to place reliance upon to the testimonies of all these witnesses to prove the purchase of petrol, rock oil, wood and match box on 2.1.2001 by the accused inasmuch as the Investigating Officer in the cross examination admitted that Raju Kuthe (P.W. 4), Sk. Ghani (P.W.5), Firozuddin Sheikh (P.W.6) and Dinesh Nanvatkar (P.W.9) did not know the accused prior to recording of their statements. Admittedly, the statements of all these witnesses were recorded after the arrest of the accused on 21.2.2001. Moreover, the Investigating Officer has not deposed as to how he came to know that the accused had purchased above mentioned articles from these witnesses. In criminal trials and more particularly in a case based on circumstantial evidence it is extremely important for the Investigating Officer to depose regarding the various steps taken by him including recording of the statements of the various witnesses. In the present case the investigating officer has not disclosed as to how he came to know that the accused had purchased various articles from the above referred witnesses. This was all the more important since the investigating officer has admitted that all these witnesses did not know the accused. It is not in dispute that identification parade was not done during investigation. In this connection, we deem it appropriate to refer to the Judgment of the Apex Court in the case of Subhash Chand vs. State of Rajasthan (2002) 1 Supreme Court Cases, 702. Paragraph 26 of the said Judgment reads thus; “26. Before parting with the case we would like to place on record, an observation of ours, touching an aspect of the case. There are clueless crimes committed. The factum of a cognizable crime having been committed is known but neither the identity of the accused is disclosed nor is thee any indication available of the witnesses who would be able to furnish useful and relevant evidence. Such offences put to test the wits of an investigating officer. There are clueless crimes committed. The factum of a cognizable crime having been committed is known but neither the identity of the accused is disclosed nor is thee any indication available of the witnesses who would be able to furnish useful and relevant evidence. Such offences put to test the wits of an investigating officer. A vigilant investigating officer, well versed with the techniques of the job, is in a position to collect the threads of evidence finding out the path which leads to the culprit. The ends, which the administration of criminal justice serves are not achieved merely by catching hold of the culprit. The accusation has to be proved to the hilt in a court of law. The evidence of the investigating officer given in the court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. This is necessary to exclude the likelihood of any innocent having been picked up and branded as a culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstances treating them as of “ beyond doubt” evidentiary value.” 19. For the aforesaid reasons, we find it extremely difficult to place reliance on the testimonies of these four witnesses. For the same reasons we are unable to accept the testimony of Vijay Pajgade (P.W. 12) who has been examined to prove the purchase of match box by the accused on 2.1.2001. We find that in large number of Sessions Trials the deposition of the investigating officers is cryptic and the investigating officers do not depose as to various steps taken by them during the investigation which would throw light on the various aspects of investigation. In the present case, may be that upon interrogation of the accused the investigating officer came to know about the purchase of above referred articles from various witnesses but in the absence of any evidence coming from the investigating officer we find it extremely difficult to place reliance on their evidence. Therefore, in our considered opinion, the prosecution has not been able to purchase of all the above referred articles by the accused from the above mentioned witnesses. 20. Therefore, in our considered opinion, the prosecution has not been able to purchase of all the above referred articles by the accused from the above mentioned witnesses. 20. The next circumstances relied upon by the prosecution is that on 2.1.2001 the accused made a call from S.T.D./P.S.O. Shop of Rathi in Dava Bajar, Yavatmal at about 1.30 to 2.00 p.m. . To prove this circumstance the prosecution examined Sapna Shukla (P.W. 10) who at the relevant time was serving in S.T.D. Shop of Rathi. She deposed that on 2.1.2001 she was on duty in the telephone booth in the entire day and the accused came to the booth at about 12 O’clock and he told her that Bittu son of his landlord was kidnapped and he also told her that she should not come to his house and left the booth. Thereafter, at about 1.30 to 2.00 p.m. accused again came to the shop and gave a ring from the phone box kept outside the P.C.O. cabin. The witness deposed that the accused again came to the shop at about 7.00 a.m. on 3.1.2001. She further deposed that she inquired from him as to why he had come so early to which he stated that he had come from Mandev by auto and that he had gone to Mandev with his friend. She further deposed that he thereafter offered a match stick to light scented stick. The witness deposed that she told him that they will have tea but the accused appeared to be scared and told her that he will not take tea. The witness deposed that accused was in a frightened condition. The witness further deposed that on 15.1.2001 she along with Vaishali Gavai went to Mahur and performed marriage. She further deposed that on 17.1.2001 police arrested her and Vaishali and brought them to Yavatmal. Both of them were interrogated by the police and she informed the police that they did not know about incident and thereafter they were released. She narrated the incident to the police on 19.2.2001 and to the police that she suspected Dinesh and on the same day her statement was recorded. We are unable to accept her testimony regarding making of phone call by accused on 2.1.2001 inasmuch as the witness candidly admitted that till 19.2.2001 she did not tell anybody that she suspected the accused Dinesh. We are unable to accept her testimony regarding making of phone call by accused on 2.1.2001 inasmuch as the witness candidly admitted that till 19.2.2001 she did not tell anybody that she suspected the accused Dinesh. Moreover, witness was herself suspected to be involved in the offence of kidnapping of the child and was arrested. We are, therefore, unable to hold that the prosecution has been able to establish the circumstance that on 2.1.2001 the accused had given a phone call from the booth where Sapna Shukla was serving. 21. The next circumstance relied upon by the prosecution is discovery of spot at the instance of the accused where burnt ash,bones and other articles were found. To prove this fact, the prosecution examined Ganesh Bayas (P.W. 2) one of the panchas to the memorandum statement and consequential discovery of the spot where burnt ash, bones and other articles were found. P.W. 2 Ganesh Bayas deposed that on 21.2.2001 he noticed rush of people in front of the police station and he was asked by P.S.O. to be a panch for which he initially refused but later on acceded to the request of police inspector. He further deposed that another panch Narayan was with him at that time. He further deposed that in his presence P.S.O. asked the accused as to what he had done to which he agreed to show the spot where dead body of Bittu was burnt on 3.1.2001 in the morning. He further deposed that the statement was recorded in his presence which was also signed by the accused. He identified the signature on the memorandum (Exh. 65). Thereafter, he along with the accused and P.I. , Gajanan Ampalliwar (P.W. 23) and other staff proceeded to Mandeo fields which is on Arni Road. After crossing Mandeo temple, accused Dinesh asked the driver to slow the vehicle and thereafter accused Dinesh directed to take the vehicle by old road. Accordingly, the jeep was taken towards the old road as direction of the accused. After crossing 300 to 400 meters distance they crossed Hanuman temple. Accused asked the driver to stop the jeep which was stopped. He along with the police and accused got down from the jeep. Dinesh thereafter led them to the spot which was to the western side of the Hanuman Temple at a distance of about 50 to 60 meters near babul tree. Accused asked the driver to stop the jeep which was stopped. He along with the police and accused got down from the jeep. Dinesh thereafter led them to the spot which was to the western side of the Hanuman Temple at a distance of about 50 to 60 meters near babul tree. On the spot they found half burnt pieces of wood which were like padpas and there were other burnt pieces of wood. Some pieces of burnt gunny bags were also found on the spot. The accused and police tried to trace out the burnt pieces of bones from the ash. Some pieces of bones were traced out from the ash. Police separated the bones and kept in one pocket and thereafter collected ash and kept in different pocket. The burnt pieces of wood and burnt pieces of gunny bag were put in another pocket. All these articles were seized by the police and their signatures were obtained on the sealed pockets and police also seized sample of earth at the distance of about 10 to 15 meters from the spot. He further deposed that the police prepared seizure panchanama of all the articles in their presence and in presence of other panchas. He identified his signature on the panchanama and that he further stated that panchanama also bears the signature of accused and P.I., Gajanan Ampalliwar (P.W. 23). He deposed that the contents of the panchanama (Exh. 66) were true and correct. He identified the seizure panchanama (Exh. 67). He further deposed that thereafter they returned back to the Police Station, Yavatmal City. In the cross-examination of this witness nothing tangible has been brought on record to discredit his testimony. The evidence of this witness clearly establishes that at the instance of the accused the police were taken to the spot where burnt ash, bones and burnt pieces of wood and gunny bags were found on the spot which was near Hanuman Temple situated at Mandev. 22. In order to prove that the bones recovered at the instance of the accused were of the biological Shreyas the prosecution examined G. Venkateshwar Rao (P.W. 22) who the relevant time was serving as Chief of DNA Lab at Hyderabad. He deposed that he was Chief D.N.A. Lab at Hyderabad. 22. In order to prove that the bones recovered at the instance of the accused were of the biological Shreyas the prosecution examined G. Venkateshwar Rao (P.W. 22) who the relevant time was serving as Chief of DNA Lab at Hyderabad. He deposed that he was Chief D.N.A. Lab at Hyderabad. He deposed that he was P.H.D. in Forensic aspects of DNA Finger printing and he had done his Post Doctorate in the same from C.C.M.B. Hyderabad. He further deposed that he had given opinion in an around 1400 cases from India and abroad and he had experience of about 13 years in examination of biological samples recovered in different crimes. Since 1996 he was working in the institution which was a Department of Government of India which is autonomous centre of Department of Biotechnology, Minister of Science and Technology, Government of India. 23. He further deposed that on 15.3.2001 he received articles from the Superintendent of Police, Yavatmal City in connection with the crime No. 4/2001 of Yavatmal City to establish the identify of deceased with controlled blood samples of the father and mother of the deceased. He further deposed that the mother and father of deceased came in person to C.D.F.D., Hyderabad and their blood samples were collected in the Lab. He identified the requisition form Exh. 137 which was sent by S.P. Yavatmal. He further deposed that the blood samples of Prakash Khole and Sunita Khole were collected on the same day after completing necessary formalities. He further deposed that the examination of DNA finger printing in this case commenced on 30th April, 2001 and ended on 30th August, 2001. He was assisted by Mrs. Varsha who was working as Scientist in the Lab. During the detailed examination of the burnt bones, he found certain small pieces of unburnt bone with bone marrow attached to it. After conducting DNA test he opined that on comparison of the DNA finger print of the source of Exhibit B (femur bone) with the D.N.A. Fingerprints of the sources of Exhibits A and C (blood samples of Smt. Sunita PrakashKhole and Mr. Prakash Khole respectively. He identified his signature on the report Exh. 138 and also photograph of the result obtained as figure one under enclosure one. It is at Exh. 138A. He also identified his signature and confirmed its contents as true and correct. Prakash Khole respectively. He identified his signature on the report Exh. 138 and also photograph of the result obtained as figure one under enclosure one. It is at Exh. 138A. He also identified his signature and confirmed its contents as true and correct. He further deposed that he had come to the conclusion that the source of Exh. B i.e. Fumur bone is biological offspring of the sources of Exhibiits A and C. In the cross examination of this witness nothing tangible has been brought on record to discard his testimony. In the cross-examination he admitted that if the bone is reduced to ash no DNA can be collected. He further deposed that in the present case bone appeared to be completely burnt but was not in ash form and he had found few unburnt pieces of bones. He further admitted that he had not mentioned in the report that DNA was of male or female. There is absolutely no reason to discard the opinion of this expert witness who has deposed in detailed as to on what basis he has come to the conclusion that the bones were of biological child of Prakash Khole and Sunita Khole. Thus, the prosecution has been able to prove that the bones which were found on the spot which was pointed out by the accused were of biological child of Prakash and Sunita Khole. 24. The evidence of Dr. Hemant Godbole (P.W. 11) is not of much help to the prosecution inasmuch as initially the packet containing the bones was submitted to him for his opinion and he advised to refer the bones to C.A. Nagpur and he further advised that for answering certain queries the bones be referred to DNA test. The cross-examination of this witness also lends assurance to the prosecution case and they were pieces of bones which were forwarded to him for his opinion. Thus, the prosecution has been able to establish that the bones at the spot which was pointed out by the accused, were of the biological child of Prakash and Sunita Khole. 25. We have held that the prosecution has been able to establish that ash, burnt pieces of wood were found at the spot pointed out by the accused. No doubt the accused during the trial denied to have made any statement pursuant to which all these articles were found and seized. 25. We have held that the prosecution has been able to establish that ash, burnt pieces of wood were found at the spot pointed out by the accused. No doubt the accused during the trial denied to have made any statement pursuant to which all these articles were found and seized. However, we have already accepted the version of the panch witness Ganesh Bayas (P.W. 2) which has been corroborated by the P.I., Mr. Gajanan Ampalliwar (P.W. 23). At this stage we would like to consider as to what inference we can draw from the act of the accused pointing out the spot where burnt ash, bones and other articles were found. We have already held that the prosecution has been able to establish that the bones found on the spot were of biological child of Prakash and Sunita Khole. In view of this position, there are three possibilities; one is that the body of the child Shreyas was either burnt by the accused or he had seen somebody else doing it or that somebody told him that it was brunt at the spot. The Apex Court in the case of State of Maharashtra vs. Suresh (2000) 1 Supreme Court Cases, 471) held that when the accused points out the place of dead body or an incriminating material was concealed without stating that it was concealed by him there are three possibilities. One is that he himself would have concealed it, second is that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed there. But when the accused declines to tell the criminal court his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court that the concealment was made by him. The Apex Court further held that such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act. The Apex Court further held that such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act. In our considered opinion the ratio laid down in the case of Suresh (supra) is squarely applicable in the present case. Therefore, in the absence of any explanation coming from the accused during the trial the only legitimate inference that can be drawn that it was the accused who burnt the body of Shreyas who was found missing on 2.1.2001. 26. Insofar as eighth circumstance is concerned the C.A. Report Exh. 151 relied upon by the prosecution discloses that residues of kerosene were found on the ash, half burnt gunny cloth pieces and earth wrapped from the spot. This is also an incriminating circumstance which stands proved by the C.A. Report. 27. Thus, the evidence of prosecution has been able to establish the circumstance nos. (i), (ii), (iii), (vi), (vii) (viii) and (ix) mentioned in paragraph 10 hereinabove. 28. We shall now deal with the authorities cited by Mr. Patwardhan, the learned counsel for the applicant. In the case of Mahmood (supra), the Apex Court has laid down the tests which are to be satisfied before recording conviction based on the circumstantial evidence. The Apex Court has held that before recording conviction on the basis of circumstantial evidence the circumstances from which the inference is to be drawn have to be fully established beyond a shadow of doubt and the circumstances must unerringly point towards the guilt of the accused and that the circumstances, taken collectively must be incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. In Bakshish Singh (supra) the Apex Court has also considered the nature of the evidence required for conviction of the accused in a case based on circumstantial evidence. In Premjibhai Khasiya (supra) the Division Bench of the Gujrat High Court has held that positive DNA report can be of great significance where there is supporting evidence but same can not be accepted in isolation. This judgment does not advance the case of the accused inasmuch as in the present case DNA report is corroborated by other circumstantial evidence. In the case of Ashish Batham (supra) the Apex Court reiterated the principles laid down by the Apex Court in various cases including the case of Hanumant Govind Nargundkar. This judgment does not advance the case of the accused inasmuch as in the present case DNA report is corroborated by other circumstantial evidence. In the case of Ashish Batham (supra) the Apex Court reiterated the principles laid down by the Apex Court in various cases including the case of Hanumant Govind Nargundkar. The Apex Court further held that suspicion however strong is not substitute for legal proof and the courts have to keep in mind that there lies long mental distance between ‘may be’ and ‘must be true’. While appreciating the prosecution evidence we have appreciated the evidence in the light of the principles laid down by the Apex Court in various Judgments dealing with the case based on circumstantial evidence. 29. In our considered opinion the circumstances proved by the prosecution conclusively establish that it was the accused who burnt the dead body of Shreyas by taking it to the jungle in a gunny bag and setting the gunny bag on fire after pouring kerosene on it. If these circumstances are proved the only legitimate inference that can be drawn is that the accused burnt dead body of Shreyas after committing his murder. There is absolutely no explanation coming from the accused as to in what circumstance he burnt the dead body of Shreyas. Therefore, the only legitimate inference that can be drawn is initially he kidnapped Shreyas with a view to demand ransom from his parents and since Rambhau called Shreyas to take him to School the accused pressed his nose and mouth which resulted in his death. Thereafter, the accused took the dead body to the Mandev jungle in gunny bag and set it on fire. 30. The prosecution has challenged acquittal of the accused under Sections 363 and 364 of the Indian Penal Code. The prosecution evidence to which we have already made reference clearly suggests that the accused had taken Shreyas in the house with a view to demand ransom from his father and when Rambhau called Shreyas to take him to school the accused pressed his nose and mouth resulting his death. It is only thereafter that the accused burnt the dead body of Shreyas by taking it in Mandev jungle. This being the position the offence under Section 364 of the Indian Penal Code is not attracted. It is only thereafter that the accused burnt the dead body of Shreyas by taking it in Mandev jungle. This being the position the offence under Section 364 of the Indian Penal Code is not attracted. Section 364 of the Indian Penal Code is attracted when a person is kidnapped or abducted in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered. In the present case, the prosecution evidence suggests that the accused kidnapped the child with a view to demand ransom but on account of pressing of mouth and nose of the child, he died. It was only thereafter his dead body was burnt. Therefore, Section 364 of the Indian Penal Code is not attracted in the present case. However, we find it extremely difficult to sustain the finding of the trial court that Section 363 is not attracted in the present case. Once it is held that it was the accused who burnt the dead body of Shreyas by taking it to Mandev Jungle the necessary inference which can be drawn is that he had kidnapped the child for ransom. Therefore, the offence under Section 363 of the Indian Penal Code is clearly made out against the accused. Insofar as the Judgment of the Apex Court in Sucha Singh (supra) relied upon by the learned A.P.P. is concerned, the same is not directly attracted in the present case. In the case of Sucha Singh the Apex Court held that if a person who is abducted is found dead soon thereafter depending upon the factual situation the court can draw presumption that all the abductors are responsible for murder unless abductors otherwise to Court as to what else they did with victim. In the present case the trial court held the accused guilty for the offence of murder but acquitted him for the offence of kidnapping. We have already held that the acquittal of the accused for the offence under Section 363 is unsustainable in law. Therefore, the accused is also liable to be convicted for the offence punishable under Section 363 of the Indian Penal Code. 31. For the reasons aforesaid the Criminal Appeal No. 198/2004 filed by the accused is dismissed and conviction and sentence imposed by the trial court is maintained. Criminal Appeal No. 345/2004 filed by the State is partly allowed. Therefore, the accused is also liable to be convicted for the offence punishable under Section 363 of the Indian Penal Code. 31. For the reasons aforesaid the Criminal Appeal No. 198/2004 filed by the accused is dismissed and conviction and sentence imposed by the trial court is maintained. Criminal Appeal No. 345/2004 filed by the State is partly allowed. The acquittal of the accused for the offence punishable under Section 363 of the Indian Penal Code is quashed and set aside and accused is convicted for the offence punishable under Section 363 of the Indian Penal Code and sentenced to undergo to R.I. for five years and to pay a fine of Rs. 5000/- and in default to undergo R.I. for one year. Both the sentences are ordered to run concurrently. Both the criminal appeals are disposed of accordingly. 32. Fees payable to Advocate Mr. R.M. Patwardhan who has been appointed to appear on behalf of the accused in Criminal Appeal No. 198/2004 are quantified at Rs. 3000/-.