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sushil sharma death sentence was commuted in to life imprisonment = SUSHIL SHARMA Vs. STATE (NCT) OF DELHI published in judis.nic.in/supremecourt/filename=40866

sushil sharma death sentence was commuted in to life imprisonment  =         The appellant was  the  State  President  of  the Youth Congress in Delhi.   The deceased was a qualified  pilot  and  she  was   also the State General Secretary of  Youth  Congress  (Girls  Wing),  Delhi.   She was an independent lady, who … Continue reading

Penal Code, 1860 – s. 302 – Prosecution for murder – Circumstantial evidence – Accused and deceased last seen together – Accused making extra-judicial confession to wife of the deceased – No FIR or missing persons report lodged – Five days after the alleged incident, human skeleton, clothes of deceased on the side of the skeleton and post card bearing name and address of the deceased, found – Motive was alleged that accused was demanding back the loan given to deceased – Recovery of knife at the behest of the accused – Conviction by courts below on the basis of motive and the circumstances of the case – On appeal, held: Conviction not justified – Conviction cannot be based solely on the motive – Death of the deceased not proved in the facts of the case – Circumstances of last seen together becomes relevant only when the death is proved – Recovery of knife u/s 27 of Evidence Act is not admissible – It has no nexus with the cause of death since the prosecution case was that death was caused by hard blunt object – Identification of the deceased not established – Extra-judicial confession not worth reliance – Evidence Act, 1872 – Medical Jurisprudence. Appellant-accused alongwith another accused was prosecuted for having killed his brother-in-law. Prosecution case was that the appellant was demanding back the loan given to the deceased. The deceased was expecting some amount towards compensation from the State. The deceased, along with the appellant and PW 6 (another lender), left for collecting the amount of compensation. They were seen together by PW5. Deceased did not return back home. Two days thereafter, appellant informed the wife of the deceased (PW 3) that he had killed her husband. Neither an FIR was lodged nor a `missing of person’ report was given. Five days after the day, the deceased and the appellant were seen together, PW1 informed the police that he had seen a human skeleton in his brother’s land. Investigating Officer found a human skeleton, some clothes and a post card. He also found a big stone having some blood stains. Post card bore the name and address of the deceased. After post mortem report, FIR was lodged. Appellant and the co-accused were arrested. A knife was recovered at the behest of the appellant. Trial Court convicted the appellant, relying on the circumstances viz. (1) motive, (2) last seen together with the deceased, (3) extra judicial confession made to PW 3, (4) discovery of bloodstained clothes from the house of the accused, and (5) discovery of knife. However, the co-accused was acquitted. High Court confirmed the conviction. Hence the present appeal. =Allowing the appeal, the Court HELD: 1. The impugned judgment cannot be sustained. This case does not satisfy the tests laid down by the Supreme Court* for determination of the guilt of the accused charged for commission of murder on the basis of circumstantial evidence. [Paras 14 and 15] [272 B-D] *Sharad Birdichand Sarda vs. State of Maharashtra 1984 (4) SCC 1116; Bodhraj vs. State of Jammu and Kashmir 2002 (8) SCC 45; and State of Goa vs. Sanjay Thakran (2007) 3 SCC 755 – relied on. 2. By no norms, a dead body would be skeletalised within a period of 3-4 days. It shall in ordinary course take atleast a few weeks, as the occurrence took place in the month of December. Atleast a week’s 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. [Paras 12 and 13] [271 G-H] [272 A-B] HWV Cox’s Medical Jurisprudence and Toxicology – referred to. 3. There 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. If the 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. [Para 6] [269 F-H] [270 A-B] 4. No DNA test was conducted. 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 possible. [Para 10] [270 G-H] 5. A 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. [Para 8] [270 C-D] State of Goa vs. Sanjay Thakran 2007 (3) SCC 755 – referred to. 6. The 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. [Para 7] [270 B-C] 7. Extra judicial confession purported to have been made by the appellant to PW-3 also cannot be relied upon as ordinarily she would have disclosed the same to her relative and lodged a first information report immediately thereafter. [Para 9] [270 D-E] 8. Recovery of knife at the behest of the appellant also looses much significance as the prosecution 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. [Para 9] [270 E-G] Sudhanshu Choudhari and Naresh Kumar, for the Appellant. Sushil Karanjkar and Ravindra Keshavrao Adsure, for the Respondent. , 2007(13 )SCR264 , , 2007(14 )SCALE174 ,

CASE NO.: Appeal (crl.) 620 of 2006 PETITIONER: Keshav RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 12/12/2007 BENCH: S.B. SINHA & HARJIT SINGH BEDI JUDGMENT: JUDGMENT CRIMINAL APPEAL NO. 620 OF 2006 S.B. SINHA 1. The deceased Uttam Sonwale is the brother-in-law of the appellant. His sister Sarjabai was married to the appellant. He was … Continue reading

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