Case Note & Summary
The appeal before the High Court of Judicature at Bombay arose from the conviction of two appellants by the Sessions Court for offences under Sections 302 read with 34, 397, 201 read with 34, 494 read with 34, and 404 of the Indian Penal Code, 1860. The case originated from the discovery on 13 August 2001 of a stainless steel water tank containing the torso of a female near Sakinaka, Mumbai. Police Constable Surendra Bhosale (P.W.No.1) found the tank unattended, uncovered it, and found the dismembered torso with multiple injuries. He alerted the police control room, leading to the registration of C.R. No. 508 of 2001. The first appellant was arrested and allegedly made voluntary statements leading to the recovery of the remaining body parts—arms and foot—from a dustbin, along with a chopper and razor. Further disclosures led to the recovery of ornaments and money from a house belonging to the sister-in-law of the first appellant, where the second appellant was also found and her blood-stained clothes seized. The prosecution examined thirteen witnesses, including panch witnesses, the owner of the premises, a person who identified the deceased, the doctor who conducted the post-mortem, and investigating officers. The trial court convicted both appellants, who then appealed to the High Court. The appellants' counsel advanced extensive submissions, contending that there was no evidence against the second appellant, who was pregnant at the time; that the identity of the deceased was not established because no DNA test was conducted to match the torso with the recovered limbs, and the face was too injured for identification; that there were discrepancies in the name of the deceased; that the panch witnesses were unreliable; and that the chain of circumstances was incomplete. Reliance was placed on the Supreme Court decision in State through CBI vs. Mahender Singh Dahiya (2011) 3 SCC 109 regarding the necessity of DNA evidence. The State supported the conviction, asserting that cogent evidence existed against both accused. The High Court began examining the evidence, focusing on the testimony of P.W.No.8 Shumi Sudhir Malik, who claimed to have resided with the appellants and the deceased. The provided text of the judgment ends during this examination, and the final decision, reasoning, and ratio decidendi are not included.
Issue of Consideration
Whether the prosecution established the identity of the deceased and the connection between the recovered body parts beyond reasonable doubt; Whether the conviction of the second appellant can be sustained in the absence of any incriminating material; Whether the chain of circumstantial evidence was complete; Whether the failure to conduct DNA analysis vitiated the evidence of recovery and identification.
Case Details
2012 LawText (BOM) (09) 69
Criminal Appeal No. 451 of 2007
A.S. Oka, Shrihari P. Davare
Rebecca Gonsalves (Appellants), S.K. Dhumal (Respondent)
Mohd. Iqbal Ansari @ Raju Chakravarty and Deepa Ansari @ Purnima
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Nature of Litigation
Criminal appeal against conviction for offences under Indian Penal Code, including murder and destruction of evidence.
Remedy Sought
Appellants seek to set aside the conviction and order of acquittal by the trial court.
Filing Reason
The appellants asserted that the prosecution failed to prove the identity of the deceased, that there was no evidence against the second appellant, and that the chain of circumstantial evidence was incomplete without DNA analysis.
Previous Decisions
The Sessions Court convicted the appellants on 27 August 2003 for offences under Sections 302 r/w 34, 397, 201 r/w 34, 494 r/w 34, and 404 of the Indian Penal Code.
Issues
Whether the identity of the deceased was conclusively established and whether the recovered body parts belonged to the same individual without DNA testing.
Whether the conviction of the second appellant was sustainable in the absence of any incriminating evidence.
Whether the circumstantial evidence formed a complete chain excluding every hypothesis of innocence.
Whether the non-conduction of DNA test vitiated the prosecution case regarding recovery and identification of body parts.
Submissions/Arguments
Appellant's counsel submitted that there was absolutely no evidence against the second appellant, who was pregnant at the time and found in her sister's house.
Appellant's counsel argued that the identity of the deceased was not proven because no DNA test was conducted to match the torso with the recovered limbs, and the facial injuries prevented visual identification; discrepancies in the deceased's name were highlighted.
Appellant's counsel contended that the panch witnesses were unreliable, the room appeared cleaned, and the source of the key was not disclosed.
Appellant's counsel relied on State through CBI vs. Mahender Singh Dahiya regarding the necessity of DNA evidence and submitted that the time of death was not established, breaking the chain of circumstances.
The State supported the conviction, asserting that cogent evidence existed against both accused and no interference was warranted.
Judgment Excerpts
By this appeal, the appellants who are the accused have taken an exception to the Judgment and order dated 27th August 2003 by which they were convicted for the offences punishable under Sections 302 r/w 34, 397, 201 r/w 34, 494 r/w 34 and 404 of the Indian Penal Code.
He found that there was a torso of female having head,neck, chest and abdomen. All four limbs and the portion below the abdomen was missing.
Her submission is that apart from the fact that identity of the torso is not established and it is not established that body parts recovered and the torso were of the same person, the name of the deceased appearing in the different documents is different.
Her submission is that this is a case of no evidence against the accused no.2 appellant no.2.
Procedural History
On 13 August 2001, a steel tank containing a female torso was discovered by a police constable on patrolling duty near Andheri Ghatkopar Link Road, Sakinaka. FIR C.R. No. 508 of 2001 was registered at Sakinaka police station. The first appellant was arrested and made statements leading to the recovery of other body parts, weapons, and ornaments. The second appellant was also taken into custody. After investigation, a charge sheet was filed and the case was committed to the Court of Sessions. The trial court convicted both appellants on 27 August 2003. The appellants filed Criminal Appeal No. 451 of 2007 in the High Court. The High Court heard the appeal and reserved judgment on 8 August 2012, pronouncing it on 28 September 2012.
Acts & Sections
- Indian Penal Code, 1860: 302, 397, 201, 494, 404, 34
