Holding

The conviction cannot be sustained as the circumstantial evidence does not meet the established criteria and the death of the alleged victim was not proved.

Summary

The appellant Keshav was convicted under Section 302 IPC for allegedly murdering his brother‑in‑law, based on motive, the fact that they were last seen together, an extra‑judicial confession to the victim’s wife, discovery of blood‑stained clothes and a knife. The Supreme Court examined whether these circumstances satisfied the established tests for conviction on circumstantial evidence, and whether the skeletal remains could be positively identified as the deceased. It held that a body cannot become skeletal in just three to four days, no forensic identification (DNA or expert testimony) was presented, the post‑mortem did not establish time of death, the confession was unreliable, and the knife had no nexus with the cause of death, making Section 27 evidence inadmissible. Consequently, the Court found that the death was not proved and the circumstantial evidence was insufficient, setting aside the conviction. The appeal was allowed and the appellant released.

Issues considered

Whether the circumstantial evidence presented satisfies the legal tests for conviction of murder under Section 302 IPC.
Whether the skeletal remains could be positively identified as the deceased.
Whether the time of death could be established from the post‑mortem and forensic evidence.
Whether an extra‑judicial confession to a third party is admissible as evidence.
Whether the knife recovered at the accused's behest is admissible under Section 27 of the Evidence Act.
Whether motive alone can sustain a conviction for murder.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 302

Subjects

murdercircumstantial evidenceskeletal remainsidentification of dead bodyextra‑judicial confessionSection 27 Evidence Actmotiveforensic evidencetime of deathIndian Penal Code 302

Judgment

A KESHAV
v. ....
STATE OF MAHARASHTRA
DECEMBER 12, 2007
B [S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Penal Code, 1860 - s. 302 - Prosecution for murder -
Circumstantial evidence -Accused and deceased last seen together
-Accused making extra-judicial confession to wife ofthe deceased
c - No FIR or missing persons report lodged - Five days after the
alleged incident, human skeleton, clothes ofdeceased on the side of
the skeleton andpost card bearing name and address ofthe deceased,
found - Afotive was alleged that accused was demanding back the
loan given to deceased - Recovery of knife at the behest of the
D accused -- Conviction by courts below on the basis of motive and
the circumstances of the case - On appeal, held: Conviction not
;ustified- Conviction cannot be based solely on the motive - Death
ofthe deceased not proved in the facts ofthe case - Circumstances
oflast seen together becomes relevant only when the death is proved
E - Recovery ofknife u/s 27 ofEvidence 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.
F
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
G 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 PWS. Deceased
did not return back home. Two days thereafter, appellant informf'.d
the wife of the deceased (P\V 3) that he had killed her husband.
H 264
KESHAVv. STATE OF MAHARASHTRA 265

Neither an FIR was lodged nor a 'missing of person' report was A
·~ given. Five days after the day, the deceased and the appellant ·
were seen together, PWl 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 B
and.address of the deceased. After post mortem report, FIR was
lodged. Appellant and the co-accused were arrested. A knife was
'r 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 C
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.
D
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. E
[Paras 14 and 15) [272 B-D]
*Sharad Birdichand Sarda vs. State ofMaharashtra 1984 (4)
SCC 1116; Bodhraj vs. State ofJammu and Kashmir 2002 (8) SCC
45; and State of Goa vs. Sanjay Thakran (2007) 3 SCC 755 - F
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 G
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-BJ H
266 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A HWV Cox sMedical Jurisprudence and Toxicology- referred
~ ~

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
B same would have been noticed by PW-1 and his brother as well
as by the Investigating Officer. At least it would have found som~
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
C 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
D 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 Y
the mother and wife· of the deceased, for the purpose of
identification of the dead body to be that of the deceased, cannot
E be accepted. [Para 6] [269 F-H] [270 A-BJ
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-HJ
F
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.
G [Para 8] (270 C-D]
State ofGoa vs. Sanjay Thakran 2007 (3) SCC 755- referred
to.
6. The post card which was purported to have been recovered
H was not marked as an exhibit. Nobody proved the contents of the
-}
KESHAV v. STATE OF MAHARASHTRA 267
[SINHAJ.]
said post card. It is also difficult to believe that although the post A
·-·.•
.t 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
B
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 c
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 D
accused which has no nexus with the cause of death of the deceased
is inadmissible in evidence. [Para 9) [270 E-G]
CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal
No. 620 of 2006. E
From the Judgment and final order dated 13.9.2005 of the High
Court of Judicature at Bombay, Bench atAurangabad in Cr!. A. No.
187/1999.
Sudhanshu Choudhari and Naresh Kumar, for the Appellant. F
Sushi! Karanjkar and Ravindra Keshavrao Adsure, for the
Respondent.
The Judgment of the Court was delivered by
S.B. SINHA .T. 1. The deceased Uttarn Sonwale is the brother- G
in-law of the appellant. His 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
H
268 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A 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
ofloan on the ground that his wife Sarjabai had a share therein. The
B deceased had also borrowed a sum ofRs. l ,000/- from PW-6, Nandu
Bhalke.
2. On 18th December, 1995 PW-6 came to the agricultural land
ofthe deceased, where he and his wife had been working and demanded
C back the said amount ofRs.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
D 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 ofher
E daughters. No First Information Report was lodged. No report was also
given to the police in regard to the missing of the deceased, Uttam
Sonwale.
3. PW-I, Shrikant Devidasrao Bhore was a resident ofNanded.
He came to the police station, Vazirabad at about 1.00 or 1.30 p.m. on
F 23rd December, 1995 informing the Officer lncharge 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,
G 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
am. on 25th December, 1995. Except the brain matter, nothing else was
found. The post-card purported to have been seized bore the name and
H address of the deceased. After the receipt of the post-mortem report,
KESHAV v. STATE OF MAHARASHTRA 269
[SINHAJ.]
a First Information Report was lodged on 26th December, 2005 by the A
':::~ Officer Incharge.
Appellant and Gautam were arrested. At the behest ofthe appellant,
recovery of a knife is said to have been made.
4. The learned trial court as also the High Court, on analysing the B
materials brought on records by the prosecution, found the following
circumstances as against the appellant to record ajudgment ofconviction
against him.
(a) Motive; , c
(b) Last seen together with the deceased on 19th December,
1995;
(c) Extra judicial confession said to have been made before
PW.3, Vunalbai ; D
(d) Discovery ofbloodstained clothes from the house of the
accused.
(e) Discovery of a knife at the behest of the accused from
thorny shrubs situate near the scene of the offence. E
5. Original accused No.2, Gautam was, however, acquitted.
6. 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. There is nothing on record to show that vultures or other F
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 ~e
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 G
cloths purported to be belonging to the deceased had been found near
the dead body separately is beyond any comprehension. lfhe 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. Ifthe dead body H
I

i-

270 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A was eaten away by vultures or other animals the garments would have
~:
also been found in tom 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, cam!Ot be accepted.
B
7. 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,
c the same was still readable and could be found near the dead body.
8. Ajudgment of conviction cannot be recorded only on the basis
of motive. The circumstance oflast 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 ofGoa vs. Sarifay
D Thakran: (2007) 3 SCC 755. Matter might have been different if a
murder of wife is allegedly to have been committed by a husband within y
the four walls of a room which was occupied by them.
9. It is difficult to rely upon extra judicial confession purported to
E 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 ofthe 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.
F 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 scme with the commission ofcrime. Recovery
of a weapon at the instance of the accused which has no nexus with the
~ause of death of the deceased is inadmissible in evidence.
G I 0. No 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 y
an identification was forensically possible.
H 11. In HWY Cox's Medical Jurisprudence and Toxicology a
KESHAV v. STATE OF MAHARASHTRA 271
[SINHAJ.]
detailed discussion has been made in regard to the time of death as also A
:~ 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.
B
In regard to skeleialisation of the dead-body it is stated:-
"The complete removal of soft tissues again is a very variable
T 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- c
and the activity of the insects and other animals.
In 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 D
becoming skeletalised before the riext summer than ifhe died in
the early months of the year with the hot weather yet to corrie.
As a very rough generalization, in temperate climates, a body
not subjected to much major ammal predation will retain some soft
tissue for up to a year and remnants of soft tissues such as tendon E
tags, periosteum and joint capsule may be visible for two to five
years. Again 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 F
skeletalisation seen in Britain is three weeks during a very hot
summer, but there are many reports of much more rapid
skeletalisation in India."
12. By no norms, thus, a dead body would be skeletalised within G
a period of 3-4 days. It shall in ordinary course take atleast a few
--
'--(
weeks.
13. As indicated hereinbefore the occurrence took place in the
month of December. It cannot be said to be a hot summer days. E'Jen
H
272 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A 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.
B
14. 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 ofMaharashtra : (1984) 4 SCC 1116 ; Bodhraj vs.
C State ofJammu and Kashmir: (2002) 8 SCC 45 and.Sanjay Thakran
(supra)]. This case in our opinion does not satisfy the tests laid down
therein.
15. For the reasons abovementioned, the impugned judgment
cannot be sustained. It is accordingly set aside. The appeal is allowed.
D Appellant, who is in custody shall be released forthwith, ifnot required
in connection with any other case.
K.K.T. Appeal allowed.