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TMI Blog2013 (3) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... 998, Leeladhar (PW-1) lodged a report at Police Station, Barmer stating that on 15.04.1998 his son Kamlesh aged about 7 years left for the school in the morning but did not return home till evening at 7:00 p.m. In pursuance of the said report, the police made a search. On 19.04.1998, on an information by Hansraj (PW-8), Khet Singh (PW-9) and Bheemaram (PW-11) that a dead body of a boy was found lying on the hill of Sujeshwar in mutilated condition, the police along with one Leeladhar (PW-1) went to the spot. They found that some parts of the dead body were eaten by the animals. From the clothes, shoes, socks and school bag, PW-1 identified the dead body as that of his son. c) On 19.04.1998, another report of kidnapping and murder was lodged by Leeladhar (PW-1) suspecting the involvement of Ramesh S/o. Dashrath, Prakash s/o. Gautamchand, Ramesh @ Papiya S/o. Bhanwar Lal, Pannu, Inder S/o. Murlidhar, Ganesh and Pappu. After the investigation and recovery, the police arrested Prakash, Ramesh @ Papia and Ramesh Khatri on 22.04.1998 and a charge sheet under Sections 302, 364 and 120-B of Indian Penal Code was filed against the accused persons. d) By order dated 31.01.2002 in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully established. It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the observations were made: [SCC para 19, p. 807): Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the school teacher, who told that Kamlesh had not come to school on that day. Thereafter, he enquired from all his relatives at Barmer and searched for him but could not locate him. Then he lodged a complaint with City Police Station stating that his child is not traceable. Five days thereafter at about 7 p.m. the police informed him that they found a dead body. Thereafter, he along with Premji Ghanshyamji went up to the hills. There is a mountain behind the Shivji temple. He was taken up to that mountain and Premji, Ghanshyamji and Moola had gone to the mountain top where the dead body was lying. On seeing the dead body, all the three came to C.I. Sahib and told that it was the dead body of his son Kamlesh. During night, it was not possible to lift the dead body, therefore, next morning he again went to that place and collected the dead body of his son tied in a cloth and brought the same to his home and buried it. He also stated that the right hand of the dead body was cut and the same was missing. The head of the dead body was also missing. There was a white shirt with black spots, black pant, black belt and black shoes put on the dead body. There was also a school bag with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her brother Prem. She also narrated the incident about Ramesh that 12 months prior from the date of her missing of her son, at 11 O clock, she had seen the accused Ramesh entering the house of Indrammal which is close to her house. Ramesh had relationship with the daughter of Indrammal, namely, Pappuni. The said Ramesh used to enter their house even during night. She informed the same to Indrammal's wife. She also disclosed this fact to other neighbours. According to her, on coming to know of the said incident, Indrammal and his sister beat her for which she had lodged a complaint with the police due to which they threatened that they would take revenge of it. One month after the said incident, Pappuni died by consuming poison and, thereafter, the accused Ramesh used to quarrel with her and many times threatened her. She also reported the matter to the police. With the assistance of the local people, the matter was compromised with him. However, she complained that after compromise, her son Kamlesh was missing and subsequently murdered. She narrated the motive for killing of her son by the accused persons. She also asserted that Pappu, Ramesh and Prakash had made her son disapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s true that counsel appearing for the Appellant pointed out the discrepancy in the evidence of PWs 11, 12, 16 and 21 about the condition of the dead body. It is relevant to point out that these prosecution witnesses are villagers and further the body was recovered only on 20.04.1998 whereas the incident occurred on 15.04.1998. In fact, PWs 9 and 11 cattle grazers have deposed that the dead body was partly eaten by dog. In view of the same, merely because the prosecution witnesses were not consistent in describing the dead body of 14 year old boy, the entire prosecution case cannot be disbelieved. 15. In the course of investigation and in pursuance of the information given by A-1, pant and shirt stained with blood of Ramesh were recovered from his house in the presence of PWs 21 and 23. The pant and shirt were seized and sealed in a packet marked as S-8. It is further seen that as per FSL report, Exh. P-86, the presence of blood on the pant and shirt are of human origin. 16. In the light of the above discussion, we hold that the prosecution has established all the circumstances by cogent and acceptable evidence and if we consider all the circumstances it leads to a conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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