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14 P.W. 8 Arif Ablatif Sayyed is another panch for the recovery of metal lock of Globe company.

15 P.W.9 Dr. Bhalchandra Gopinath Chikhalkar had performed autopsy on the dead body of Madan Phatak at Grant Medical College at J.J. Hospital. The post mortem notes are at Exh. 37. According to P.W. 9, he had noted external and internal injuries in the post mortem reports and after receipt of Chemical 14 apeal859.06.sxw Analyser's report he had opined about the cause of death as compression of neck with head injury. All injuries were ante mortem injury. P.W. 9 has specifically opined that death was caused more than 72 hours prior to conducting post mortem. 16 In the cross-examination Dr. Chikhalikar has admitted that blackish thread was found around the neck of the body at the time of conducing post mortem and the same was noted in column No. 8 of the notes of the post mortem. According to him, it is a case of homicidal death. However, the possibility that the injuries could be a result of falling from height under intoxication and that particular part of the body had come into contact with hard and rough substance cannot be ruled out. He has also admitted that the head injuries mentioned in coloumn No. 19 were individually sufficient to cause death. Column 12 of the post mortem notes indicates that maggots were present all over the body.

39 He has admitted in the course of cross-examination that while recording the missing complaint, the description of the clothes last worn by the missing person was also mentioned. He had proceeded with the investigation of the said crime on 31 apeal859.06.sxw 18/4/2000. He had recorded statement of the wife of the deceased on 20/4/2000. That the Accused No. 1 Sohail was in police custody in the intervening night of 18 th and 19th April, 2000 and that the Accused was produced before Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai on 19/4/2000 and he was remanded in custody till 3/4/2000. Two Accused were juvenile in conflicts with law. It is also admitted that the body was in a decomposed state. It was infiltrated with maggots. The dead body was identified by his friend Dinesh Phatak. The clothes found on the dead body had tallied with the description of the clothes mentioned in the missing complaint. The dead body was also identified by the cousin of the deceased namely Prabhakar Phatak in the hospital. He had seen the Accused to be identified at the time of test identification parade. 40 Upon the perusal of the substantive evidence recorded by the prosecution, it is established by the prosecution that on 32 apeal859.06.sxw 14/4/2000 Madan Phatak had visited the Hotel Three Flights-up at Colaba. He had not returned home. His wife was in contact with him. On 15th April, 2000 the brother-in-law of Madan Phatak had lodged a missing complaint and while lodging the missing complaint he had also given description of the clothes last worn by the missing person. That Madan Phatak had left the Hotel Three Flights-up some time after 11.30 p.m. He was seen in the company of Sohail and other friends and had boarded a green colour Maruti Zen car. That they had been to the Pan stall of P.W. 14 who had seen the deceased in the company of Accused No. 1. That the Accused No. 1 had mortgaged a gold chain with P.W. 17 Suresh Jain. The receipt signed by the Accused dated 16/4/2000 is on record which is marked as Exh. 55. P.W. 11,12 and 13 have proved that Madan Phatak was in the company of Accused No. 1 upto 11.3.0 p.m. on 14/4/2000 and Madan Phatak was missing thereafter. The prosecution has seized the Car No. MH-01 U 9080 and has made an attempt to prove that it was the same car which 33 apeal859.06.sxw was boarded by Sohail and his friend on 14/4/2000. On 16/4/2000 Sohail was summoned to the Police Station for enquiry and in the course of investigation Sohail Accused No. 1 had led the investigating agency to the discovery of the dead body of Madan Phatak. The body was in decomposed state on which there was maggot formation. On the basis of medical evidence i.e. post mortem notes, it is established that Madan had expired more than 72 hours prior to conducting of autopsy on the dead body and the same is proved by P.W. 9. The contents of the post mortem notes are proved by P.W. 9 and the same is marked as Exh. 36. 41 Upon perusal of the substantive evidence of P.W. 11, 12, 13, 14 it is not proved that the Accused No. 2 i.e. Appellant in Criminal Appeal No. 14 of 1997 Shakir Abdul Latif was the person who was driving the Maruti Zen car. None of the witnesses had given the registration number of the Maruti Zen car. The recovery of the said car at the instance of Accused No. 2 under section 27 of 34 apeal859.06.sxw the Indian Evidence Act is not proved as the car was parked in open space. There was no enquiry or investigation in respect of the ownership of the said car. In any case, it is established that the Accused No. 2 was not the registered owner of the said car nor it was parked in front of his house. The evidence of P.W. 18 Mohd. Rajput who claims to have repaired the car in the intervening night of 14th and 15th April, 2000 is also not proved. That he has deposed before the court that he had not noticed the registration number of the said car. It is case of the prosecution that the clothes of the Accused were seized from the house within 3 days of the alleged incident. The complicity of the Accused No. 2 in the said offence is not proved beyond reasonable doubt. 42 It is a case of circumstantial evidence and the incriminating circumstances as against the Accused No. 1 is that the dead body of deceased Madan Phatak was discovered at the instance of Accused No. 1. Hence, it was incumbent upon the 35 apeal859.06.sxw Accused No. 1 to explain the circumstances as to how he had knowledge about the place where the dead body of deceased Madan Phatak was disposed of.

45 apeal859.06.sxw 58 Post mortem was conducted on 19th April, 2000 and at that time, it was noticed that there was maggot formation. P.W. 9 has specifically stated that post mortem was conducted on 19/4/2000. Dr. Mody in his Medical Jurisprudence and Toxicology has stated thus :

"Flies such as, common houseflies and blowflies, are attracted to the body, and lay their eggs, especially in the open wounds and natural orifices. The eggs hatch into maggots or larvae within eight to twenty four hours during the hot whether. The maggots crawl into the interior of the body and helps in destroying the soft tissues. Some times, maggots appear even before death, if a person has ulcers on him. The maggots become pupae in four or five days, developing through about four stages called instars. The pupae developed into adult flies in the course of three to five days. They are of some help in estimating the time of death; ability to identify the type and knowledge of their exact life history being essential."

46 apeal859.06.sxw In the present case, missing complaint was lodged on 15th April, 2000, the deceased had spoken to his wife in the late hours of 14/4/2000. The dead body was discovered at the instance of Accused No. 1 on 18/4/2000 and the post mortem was conducted on 19/4/2000. The maggot formation would clearly establish that Madan Phatak had died 4 to 5 days prior to the conducting of post mortem.