Bhakalu S/O Rajji @ Rajaji ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 1624 Bom

 apeal6.16                                                                               1


             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

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

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

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

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.

(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."

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

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

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.

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.

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

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

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

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

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.