The accused, Abhay Kurundkar claimed that the victim had not died but left for a Vipassana camp for meditation. His defence rested on the unavailability of her body or remains, as well as any trace of her DNA, blood samples and any physical evidence. Further, no murder weapon was recovered, nor were the purported plastic bags or weights in the creek, and no witnesses had seen him dispose of the body.

Can courts convict a person of murder even if the body is not found?

Special public prosecutor Pradip D Gharat said he had relied on corpus delicti to prove the crime. The Latin phrase, translating to ‘body of the crime’, is ironically referred to in various judgments by the Supreme Court, where the physical body of the victim of a crime is never found.

The courts have said that the discovery of the physical evidence of the body being found is not the only mode to prove that a crime has been committed. They have said that in some cases it may be impossible for the body to be recovered, hence the prosecution could rely on other evidence. According to the courts, this would mean placing other circumstances before the court which sufficiently lead to the conclusion that ‘within all human probability’, the person has been murdered by the accused.

“In the absence of corpus delicti what the court looks for is clinching evidence that proves that the victim has been done to death. If the prosecution is successful in providing cogent and satisfactory proof of the victim having met a homicidal death, absence of corpus delicti will not by itself be fatal to a charge of murder,” the Supreme Court said in Rishi Pal vs State of Uttarakhand, 2013, one of the judgments referred to by Gharat.

The SC judgment also refers to a time under the old English law when recovering the body was essential to convict a person of murder. It quotes judge jurist Sir Matthew Hale, “I would never convict a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead.” This caution was also exercised because those found guilty of murder faced the punishment of being executed. There are cited cases of murder convicts being executed in the 17th and 18th centuries, only for the ‘victims’ to reappear, with some having left their towns on their own.

Hence, in cases where bodies are not found, courts have cautioned of the need for ‘clinching evidence’. In many of the cases citing corpus delicti, the courts have acquitted the accused for want of evidence.

What role did circumstantial evidence play in the court’s decision?

In Ashwini’s case, the court relied on circumstantial evidence, with the prosecution led by Gharat aiming to establish that the circumstances are ‘inconsistent with the innocence claimed by the accused’.

While the accused claimed that she may have gone for Vipassana or had ‘renounced the world’ for spiritual reasons, the prosecution said that circumstances did not indicate that she had any such plans for the day when she went missing. For instance, she parked her car outside a railway station before leaving for Kurundkar’s house, intending to return. Nor did she inform her landlord or her family, including the daughter she was fighting for the custody of, with her estranged husband.

The prosecution also said that Kurundkar was unable to explain why he had made false entries in the police logbook about being on patrolling duty on the intervening night of the crime, or getting his flat repainted without asking the landlord. The call data records showed that they were in the same location, and Kurundkar’s records corresponded with other locations of interest as well, like the creek where the body was disposed of. Kurundkar’s lawyer insisted that there was no evidence – nobody had seen her with him, and there was no trace of Ashwini’s DNA at his flat.

“The dead body of the deceased was not found is not absolute ground to exonerate the offenders. If it is so, then that would be an excuse to like-minded offenders to commit such mischief to exonerate from the charge of murder,” additional sessions judge K G Paldewar said in his order on Monday. Kurundkar’s lawyer, Vishal Bhanushali, said that they will be approaching the Bombay High Court against the order.

And how have courts dealt with such cases in the past?

1. 01

   KIRTI VYAS, 2018

   In 2018, Kirti Vyas, a finance manager with salon chain BBlunt went missing in Mumbai. The police arrested two of her colleagues, claiming they had given her a lift from her home to work, strangled her in the car en route, and then disposed of the body in a secluded location, in a creek near Mahul in Chembur area of the city. While a search was conducted for the body, it was never found.

   In May 2024, the sessions court in Mumbai sentenced the colleagues, Siddhesh Tamhankar and Khushi Sahjwani, to life imprisonment, observing that the police had proved that Vyas was with the two of them before she went missing.

   “Hence, only the accused know what happened with Kirti inside their car and non-availability of corpus delicti will not affect the merits of the case,” the court said, relying on other evidence including a DNA match to a blood stain found in the car, CCTV footage, location of the accused, and their post-crime conduct.

2. 02

   SADICCHA SANE, 2021

   MBBS student Sadiccha Sane went missing on November 29, 2021, after being spotted last at Bandra’s Bandstand area, by the sea. The Mumbai Police arrested a former lifeguard and his friend in January 2023, claiming that the lifeguard had got into a scuffle with Sane after making advances towards her, causing her death. His friend, the police alleged, helped him in disposing of the body in the sea.

   Sane’s body, too, has not been recovered, nor has any other physical evidence. The two accused, Mithu Singh and Abdul Jabbar were granted bail by the Bombay High Court on April 2, which noted that the body was not found and other evidence can be examined at the time of the trial. The trial is yet to begin.