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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 6 OF 2016
Bhakalu s/o Rajji @ Rajaji Lokhande,
age about 48 years, occupation -
Labourer, r/o Kolgaon, Tq. Bhaisdahi,
District - Betul (M.P.) now r/o in the
field of Rameshwar Gopalrao Dhepe,
Tuljapur Mauje Wurwada, Tq.
Achalpur, Dist. Amravati, at present
in Central Prison, Amravati (C-4699). ... APPELLANT
Versus
The State of Maharashtra,
Through P.S.O., Police Station
Pathrot, Tq. Achalpur, District -
Amravati. ... RESPONDENT
Shri R.R. Gour, Advocate (appointed) for the appellant.
Shri S.S. Doifode, APP for the respondent.
.....
CORAM : B.P. DHARMADHIKARI &
V.M. DESHPANDE, JJ.
APRIL 11, 2017.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.) The appellant - step-father of the deceased girl challenges the judgment dated 17.03.2015 delivered by the Additional Sessions Judge - 1, Achalpur, in Sessions Trial No. 6 of 2002, convicting him of an offence punishable under Section 302 of the Indian Penal Code. By the very same judgment, he has ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 2 been acquitted for the offence punishable under Section 376 and 201 of the Indian Penal Code.
2. He was charged for committing on 1.10.2011 the murder of his step daughter by pressing and twisting her neck and nose and by stuffing swab in her mouth. The second charge upon him was of committing forcible sexual intercourse on her corpse under Section 376 of I.P.C. and third charge was of causing certain evidence to disappear under Section 201 of I.P.C.
3. We have heard Shri Gour, learned counsel for the appellant and Shri Doifode, learned APP for the respondent.
4. Shri Gour, learned counsel (appointed) for the appellant has invited our attention to the facts available on record and to the circumstances looked into in paragraph 30 of the impugned judgment as constituting a chain. He contends that the circumstances looked into do not form a chain at all and in any case chain is not complete. The appellant cannot be reached on the basis of that chain. He has also invited our attention to the fact that no injuries were found on the person of the appellant ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 3 and Chemical Analyzer's report is of no assistance. The appellant has been exonerated of the offence punishable under Section 376 of the I.P.C. The presence of semen in the body of the deceased definitely shows involvement of some third person and that has not been investigated into. Lastly, he states that the evidence of a tracker dog relied upon, does not help the prosecution at all. The prosecution could not, on the basis of assistance of said dog, searched out any other material or evidence and evidence of tracker dog is in law a week piece of evidence. According to him, in present facts, when, smell of handle of bicycle belonging to & used by the appellant and his family was given to dog, identifying the appellant by tracker dog on the basis of that smell of bicycle handle, by itself cannot be viewed as an incriminating circumstance. He has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Abdul Razak Murtaza Dafadar vs. State of Maharashtra, reported at AIR 1970 SC 283.
5. The learned APP has invited our attention to the report of Chemical Analyzer to show that on underwear of the deceased, blood of group 'A' was found and the blood group of accused is 'A'. He states that same blood is also found on slip put on by the ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 4 deceased. Though the mother of the deceased and wife of the accused has turned hostile, she points out that the deceased was staying with them. According to her, she and the accused were searching missing daughter together while witnesses have falsified this version and the accused was seen searching for his daughter alone. The evidence of tracker dog assumes importance in this connection.
6. Recovery of burnt stick under Section 27 of the Evidence Act upon the statement of the accused is relied upon by him as strong circumstance. He points out that the accused, as a part of discovery, led police to the spot where he committed murder and thereafter to the spot where body was found. He also pointed out that after death, he used a burning stick in the hearth of his hut to cause injuries on thigh and inguinal region of the deceased. He relies upon the post mortem report and evidence of doctor to show that burning stick recovered at the instance of the accused could have caused those injuries. He, therefore, contends that in this situation, when the accused misled the prosecution and then gave admission under Section 27 of the Evidence Act leading to recovery of an incriminating article, his conviction needs to be ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 5 maintained.
7. Before proceeding further, it will be fruitful to note 11 circumstances narrated by the trial Court as constituting a chain. Those are--
"(i) The prosecutrix was the step daughter of the accused and residing with him in hut in the field at material time.
(ii) The prosecutrix was with accused and his family members in the house at village Tuljapur since morning till 2 p.m. on 01.10.2011.
(iii) Since 01.10.2011 around 2.00 P.M. till 02.10.2011 around 12.00 P.M., the prosecutrix was missing and during the period the accused searched her elsewhere than field but the prosecutrix did not find.
(iv) The accused met to P.W. 2 Purushottam Harne on 02.10.2011 around 12.00 P.M. at his hut in the field and informed him the prosecutrix was missing but yet did not find, thereafter accused met to him after ½ hours and told that dead body of prosecutrix found lying under jujube tree in the field where he reside.::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 6
(v) The accused first on 02.10.2011 around 12.30 P.M. pointed out the dead body of prosecutrix in the filed where he reside at 500 feet distance away from his hut.
(vi) Two postmortem burns injuries found on both inguinal region on the dead body of prosecutrix.
(vii) The burned stick at one end of orange tree which was used to cause such burn injuries on the person of prosecutrix recovered at the instance of accused nearby the dead body of the prosecutrix from 500 feet distance away from his hut.
(viii) The other sticks like seized stick found in the hearth at the hut of accused.
(ix) The Dog shown the real place of incident near railway line where grass was pressed and place where dead body thrown along with track carry out the dead body of prosecutrix along with her bicycle.
(x) The distance between real place of incident and hut of the accused is 200 feet.
(xi) The dog identified the accused as he is real culprit by barking and putting his front legs on the chest of the accused."::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 7
8. It is apparent that the circumstances by themselves cannot be viewed as a complete chain. Circumstance No. 9 is the incorrect appreciation as dog never laid police to the alleged place of incident ie murder near railway line. The place was allegedly shown by the accused as a part of his statement under Section 27 of the Evidence Act. Circumstance No. 11 i.e. identification of accused by dog again is not a clinching circumstance.
9. PW-1 is the person who handled dog and his evidence shows that smell emanating from handle cover of bicycle was given to dog. The dog carried them from the place where body was lying towards railway line for about one furlong and thereafter he was wandering here and there for some time. He, therefore, again gave smell of handle cover of bicycle and dog brought them back to the spot where body was lying. Thus, dog has never taken police to the spot where grass was trampled upon thereby indicating some action or movement over it. The identification of accused - appellant in Police Station is also on the basis of smell of handle cover. As already noted supra, when bicycle was belonging to the appellant, fact of dog signaling him ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 8 out on the basis of smell of handle cover by itself, does not mean that the appellant is associated with the murder of his step- daughter.
10. A perusal of the judgment of the Hon'ble Apex Court in the case of Abdul Razak Murtaza Dafadar vs. State of Maharashtra, (supra) in paragraphs 11 and 12 reveal that though the evidence of dog tracking may be admissible, ordinarily it does not carry any weight. In paragraph 11, the Hon'ble Apex Court observes that dogs are intelligent animals with many thought processes similar to that of human beings and, therefore, there is always the risk of error, deception and even self deception. The Hon'ble Apex Court, therefore, did not accept the evidence of tracker dog in the facts before it. In matter before us, on the clues (if any) provided by the dog, the prosecution could not unearth any incriminating material so as to enable it to reach the accused independently. Had there been discovery of such piece of evidence, the tacker dog movement could have been used in corroboration.
11. Before reverting back to this aspect of the matter, it will ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 9 be appropriate to look into the evidence of mother Heerabai. She has been examined as PW-5. Her evidence shows that daughter met them at Village - Tuljapur between 2.00 P.M. and 3 P.M. She proceeded towards hut in the field on bicycle while she herself and her husband (accused) stayed at Tuljapur at night. The next morning when they came to hut, the deceased was not to be seen. They then found out her body. She denied that accused had alone come to hut in the night. She denied that in the morning next day, her husband met her on railway line. She was declared hostile and she stated that portions marked 'A' and 'B' in her police statement were not recorded as per her say. In cross examination, she has stated that she had given birth to three daughters from her first husband Munna. The appellant - accused thereafter accepted her with daughters. He also performed marriages of two daughters out of his earning. He was loving the deceased daughter as his own daughter. She accepted the suggestion that her husband has not committed the alleged offence.
12. PW-2 - Purshottam met accused in the morning when he was searching for his deceased daughter at about 12.30 P.M. ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 10 Purshottam delivered a bag of fertilizer in his field thereafter and returned back. When he was carrying another bag of fertilizer to the field, accused met him at railway line and informed that his daughter was lying below bor (jujube) tree. He then saw dead body and informed Police Station on his mobile. His evidence, therefore, does not also help the prosecution in establishing guilt of accused.
13. The support is being taken from disclosure made by the appellant allegedly under Section 27 of the Evidence Act. As per this statement, it is claimed that he took police to the spot from where he brought dead body and bicycle thereafter. Panchnama states this to be the spot where murder was committed, grass on the ground appeared to be trampled upon for about four square feet. Panchnama mentions two new foot-ways formed at that place. He has also taken the police by road by which he brought dead body to jujube tree. He pointed out the place where he threw the burning stick after inflicting burn injuries on dead body. As per recovery panchnama, he retrieved that stick in the presence of panchas.
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14. Postmortem report in column 17 mentions burn injuries on thigh & inguinal region. Doctor, who carried out postmortem is PW-6. He also points out those injuries. He further states that semen was found in vagina of the deceased.
15. The accused has denied making of any statement under Section 27 of the Evidence Act or recovery at his instance, thereafter. The report of Chemical Analyzer at Exh. 64-A shows slip worn by the deceased, as Exh. 6 - moderate number of blood stains ranging from 0.1 cm to 1.0 cm in diameter are seen on its back portion. Blood is found on underwear of accused which was washed. That blood is found to be of group 'A'. Report (Ex. 64-B) shows that blood group of the deceased could not be determined. Exh. 64-C mentions piece of underwear of the deceased at Exh. 4, and on it blood of group 'A' has been found. Arrest form Ex. 100 drawn at 12.45 in noon on 4.10.2011 does not mention any bloodstains on accused's clothes. Property search & seizure form at Ex. 48 mentions stains like semen on underwear. Evidence of PW-7 Rupesh at Ex. 45 shows that the clothes of accused were produced by the police in bundle before him & the same were not ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 12 on his person. Also he only deposes about the pant, shirt & does not speak of any underwear. Other witness to this Ex. 48, Shri Nitesh Dube is not examined by the prosecution.
16. A perusal of Arrest Form of the accused dated 04.10.2011 shows that he was arrested at about 12.45 P.M. on 04.10.2011 in the Police Station. It does not mention any injuries on his person. In this situation, though blood group of the accused is found to be 'A', as he is not injured, it is apparent that the blood on slip or on underwear of the deceased does not belong to him.
17. PW-6 - Dr. Chauhan points out existence of semen in the body of the deceased. Though the appellant was charged under Section 376 of the Indian Penal Code, he has been exonerated therefrom. This acquittal is not questioned by the State or anybody in this Court and it has attained finality. Semen, therefore, is not of the appellant. Presence of semen itself shows that some third person was also involved in the matter. Police has not investigated this angle and hence no such third person has been arrayed as accused. With the result, possibility of that ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 13 some third person may have committed murder of the deceased, also cannot be ruled out. This Doctor (PW-6) has opined that the stick discovered at the instance of the accused could have caused the burn injuries on the body of the deceased. The presence of burn injuries on the body by itself is not sufficient to implicate the appellant in the crime of murder as in Postmortem report and in his deposition, Doctor has expressly mentioned that these burn marks are inflicted after death.
18. The dog could not and did not lead police to the spot where grass was allegedly found trampled near railway line, police did not get any material at that spot to establish presence of either deceased or the appellant there. Looking to the mode and manner in which the deceased was killed, it is seen that much force must have been required, still there are no injuries on the person of the appellant. Nobody has seen the appellant either killing his daughter or then while moving her body from that spot to jujube tree or moving her bicycle to the jujube tree. No motive has been expressly brought on record. On the contrary, mother of the deceased who is wife of the appellant has pointed out that he was loving the deceased as his own daughter and he has not ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 14 committed that offence.
19. The postmortem report at Exh. 35 in column 17 mentions only burn injuries on the body of the deceased. There are no wounds which could have supported any bleeding. Hence, source of blood on underwear or on slip of the deceased is not brought on record and ascertained by the police.
20. In this situation, we find substance in the contention of Shri Gour, learned counsel for the appellant that the circumstances looked into by the trial Court in paragraph 30 of its judgment do not constitute a chain so complete as to leave no doubt about involvement of the appellant only in the crime. The chain and circumstances need to be so complete as to indicate accused only as the criminal & it has also to be incompatible with the hypothesis of his innocence. It should not leave any doubt about involvement of a third person. The material on record points out possibility of involvement of some third person and it can not be ruled out as there is no investigation in that direction. The conviction of the appellant under Section 302 of the Indian Penal Code is, therefore, unsustainable. Hence, we ::: Uploaded on - 18/04/2017 ::: Downloaded on - 19/04/2017 00:13:47 ::: apeal6.16 15 proceed to pass the following order :
(1) The appeal is allowed. (2) Conviction of appellant Bhakalu s/o Rajji @ Rajaji
Lokhande for offence punishable under Section 302 of the Indian Penal Code by the Additional Sessions Judge - 1, Achalpur on 17.03.2015 is quashed and set aside.
(3) He is acquitted of said charge. (4) He be set free if his custody is not required in any other matter. (5) Muddemal property be dealt with as directed by trial Court after appeal period is over. (6) Fees payable to the learned Advocate appointed for the
appellant are quantified at Rs.7,500/- (Rs. Seven thousand five hundred only).
JUDGE JUDGE
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*GS.
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