The Court observed that it was unimaginable that after the scene of incident panchanama was drawn and that the inquest panchanama had already been drawn, and the stone which was given to the dog for sniffing could be said to have been the stone which was last handled by the accused. The Court held that there is no other evidence of corroborative nature which would corroborate the evidence of dog tracking.
The other evidence submitted was the statement of the victim’s daughter that the accused had strained relations with the victim over laying of a pipeline and an axe and blood stained clothes recovered by the police at the accused’s instance. The Court said that strained relations did not prove a motive and that there was no proof that the axe and blood stained clothes were sealed before sending it for analysis to rule out tampering. The Court held that in cases resting on circumstantial evidence, the prosecution has to prove each and every circumstance, which should be of a conclusive nature and have definite tendency of implicating the accused, and thereby set aside the judgment of the trial court. [Rajaram Limbaji Babar vs. State of Maharashtra, Criminal Appeal No. 899 of 2005, decided on January 27, 2014]1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 899 OF 2005
Rajaram Limbaji Babar
Vs.
The State of Maharashtra
CORAM: P. V. HARDAS &
A.S. GADKARI, JJ.
JANUARY 27, 2014.
Appellant who stands convicted for an offence punishable under
Section 302 of Indian Penal Code and sentenced to imprisonment for life
and to pay fine of Rs.5,000/-, in default of which to undergo further RI for
six months, by the III Ad-Hoc Additional Sessions Judge, Solapur, by
appeal questions the correctness of his conviction and sentence.
judgment dated 31 August 2005, in Sessions Case No.18 of 2005, by this
The facts in brief, as are necessary for the decision of this
appeal, may briefly be stated thus:
PW-3 Bhalchandra Patil who was police patil of the village
(i)
learnt about the two dead bodies lying by the side of the road on 13.9.2004
at 8am. He had accordingly telephoned the Mohol Police station and
informed them about the finding of the dead bodies. After arrival of the
police personnel, PW-3 Bhalchandra accompanied the police to the house
of deceased Subhadrabai. On going to the house of Subhadrabai, PW- 3
Bhalchandra pointed out the two dead bodies i.e. Subhadrabai and Nivrutti
lying in front of the hut of Subhadrabai. According to PW- Bhalchandra
about two months prior to the incident there was some dispute between the
accused and deceased on account of laying of the pipeline.
(ii)
PW-11 Mujib Karjatkar who was attached to Solapur Gramin
and was Dy. SP, Rural, was informed about the first information report
lodged by PW- 10 Rani daughter of deceased Subhadra. PW-13 PSI Umesh
Tawaskar who was attached to Mohol police station was informed about
the finding of the dead bodies and accordingly had visited the scene of the
incident. At the scene of the incident, he recorded the complaint/report of
PW-10 Rani at Exhibit 37. On the basis of the said report of said PW-10
Rani, he registered an offence at the Mohol police station. The said offence
was registered as crime no.224 of 2004. He thereafter drew inquest
panchanama of the two dead bodies at Exhibits 18 and 19. Further
(iii)
ig
investigation was accordingly handed over to PW-11 Dy. S.P. Karjatkar.
PW-11 Dy. SP Karjatkar had rushed to the scene of the incident
and recorded the supplementary statement of PW-10 Rani. He thereafter
drew the scene of the incident panchanama in the presence of PW-1 Baban
Jagtap at Exhibit-16. From the scene of the incident, he drew samples of
the ordinary mud and blood with mud and also seized broken pieces of
bangles and one quilt. On the same day he summoned the dog squad from
Solapur. On arrival of dog squad, he had given blood stained stones to the
dog for sniffing and dog then went to the house of the accused and barked.
A panchanama was accordingly drawn in the presence of PW-4 Devidas
Avathade. The dog had also pointed out to accused no.2. The Trial Court,
however, acquitted accused no.2 Dadarao. The panchanama of the dog-
tracking is at Exhibit-23. The dog-handler namely PW-12 Mohan had
submitted the report at Exhibit 39. The statements of other witnesses were
recorded.
(iv)
During custodial interrogation, the appellant expressed his
willingness to point out the place where the weapons and the clothes had
been concealed. Accordingly, a memorandum was drawn in the presence
ig
of PW-7 Sajerao Jagtap at Exhibit-27. The appellant led the police and
pancha, and after removing the stones from a heap in the forest, produced
an axe and two pairs of clothes. The said axe and clothes were stained with
blood and accordingly same were seized under the seizure memo at
Exhibit-28. The aforesaid articles were seized and a label bearing signature
of the panchas was pasted on the same. Further to the completion of the
investigation, a chargesheet against the appellant was submitted.
(v)
Postmortem on the dead body of deceased Nivrutti and deceased
Subhadrabai was conducted by PW-9 Dr. Bolde. PW-9 Dr. Bolde noticed
the following external injuries on the dead body of Nivrutti:
“1. Incised wound over right parietal region and frontal region
bone deep 4" x 1/2" with fracture of skull bone.
::: Downloaded on - 02/02/2014 18:00:53 :::
5
APEAL.899-2005.sxw
2.
Incised wound over occipital temporal and mastoid region
on the left side 7" x 3" with fracture of mandible temporal
bone mastoid
bone and occipital bone.
3.
Incised wound 21⁄2" x 2" over left shoulder
4.
Abrasion over forehead 2" x 2".
5.
Incised wound on left palm thinner aspect 2" x 1⁄2".
6.
Incised wound on left hand second web space 1" x 1⁄2"
7.
Linear abrasion 21⁄2" x 1⁄4" transverse on left arm.
8.
Abrasion on right cubital fossa 2" x 2".
9.
CLW first web space of right hand 1" x 1⁄2".
10. peeling of skin on left should 6" x 5" and on left buttock 4
x 4".”
ig
On internal examination, he noticed the following injuries:
“1. fracture of fronto parietal bone on left side of head and
fracture of occipital bone, mastoid bone on left side.
2.
lacerations owner the left cerebrum vertically 3" x 1⁄2" as
well as sub arehnoid haemotoma on left side.
3.
Lacerations owner the occipital region of the cerebellum.
And subarachnoid haemohage on thoracic region.”
(vi)
He opined that all the injuries are antemortem and the injuries
were sufficient to cause death in the ordinary course of nature. He therefore
opined that the cause of death was due to shock due to haemorrhage with
injuries to vital organs like brain and skull. The Postmortem report is at
Exhibit-33.
(vii)
On the same day, he had conducted postmortem on the dead
body of Subhadrabai. He noticed following external injuries on the dead
body of Subhadrabai:
“1 Incised wound over right temporal parietal region 5" x 2"
with fracture of parietal bone and temporal bone transversely.
2 Incised wound over left ear and mastoid region 3" bone deep
transverse.
3 Incised wound right ear and mastoid bone transversely 4" x
1⁄2" with fracture of mastoid bone.
4 Contusion right forearm 6" x 4".
5 Abrasion on right hand 1” x 1”.
6. Linear contusion on left shoulder 4" x 1⁄4".
On internal examination, he noticed the following injuries:
ig
1. Incised would over maright temporal region 3" x 2" with
fracture of parietal bone and temporal bone transversely.
2. Incised would over left ear and mastoid bone 3" x 1".
3. Incised wound right ear and mastoid and temporal bone 4" x
1⁄2".
According to him all the injuries were ante mortem and
(viii)
the cause of death is shock due to head injury with injuries to vital organs
like brain and also haemorrhage. The postmortem report is at Exhibit 34.
(ix)
On committal of the case, the Court of Sessions, Trial Court
vide Exhibit 2 framed charge against the accused for offence punishable
under Sections 302 read with 34 of Indian Penal Code.
The accused denied his guilt and came to be tried. The
(x)
prosecution, in support of its case, examined 13 witnesses. The defence of
the accused was of denial. The Trial Court upon appreciation of the
evidence of the prosecution convicted and sentenced the appellant as
aforestated, while acquitting original accused no.2.
In order to effectively deal with the submissions advanced
3
before us by Shri Milind Thobde, learned Counsel for the appellant and the
4
witnesses.
learned APP, it would be useful to refer to the evidence of the prosecution
The case against the appellant is based upon circumstantial
evidence. In cases resting on circumstantial evidence, the prosecution has
to prove each and every circumstance on which it proposes to rely. The
circumstance so proved should be of a conclusive nature, that is, they
should have definite tendency of implicating the accused. The
circumstances so proved should form a complete chain which should
exclude every hypothesis of the innocence of the accused and should
unerringly point the guilt of the accused. In other words, the circumstances
should be capable of only one inference that is, the accused alone has
committed the offence. A reference may usefully be made to the judgment
of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra,
[AIR 1984 SC 1622].
5
The circumstances on the basis of which the appellant has been
convicted are 1) the appellant was obstructing the design of PW-
Subhadrabai for laying of the pipeline, 2) discovery of the weapons which
ig
were found stained with blood and 3) the evidence of dog-tracking.
6
We may, at the outset, refer to the evidence of PW-10 Rani i.e.
the daughter of deceased Subhadrabai. According to PW-10 Rani her
mother had disclosed to her that the appellant and other accused were
obstructing the design of PW-1 Subhadrabai for laying of pipeline. In
cross-examination, omissions have been elicited which would indicate that
PW-10 Rani had no personal knowledge regarding threats alleged to have
been given by the appellant to Subhadrabai. In fact, PW-10 Rani had
admitted in her cross-examination that her mother Subhadrabai had illicit
relationship with deceased Nivrutti. According to PW-10 Rani her mother
and Nivrutti used to reside in the hut in her field. PW-10 Rani had also
admitted that such illicit relationship were not looked upon favourably in
the village and the tribe to which she belonged.
7
Be that as it may, the evidence of PW-10 Rani as well as
evidence of PW-13 Bhalchandra would only indicate that the relationship
between the appellant and Subhadrabai were strained. In fact, PW-10 Rani
had admitted that the dispute between Subhadrabai and the appellant was
amicably settled. If that is the case, according to us, the evidence of PW-10
Rani cannot be considered as a establishing any motive for the appellant to
commit any offence. If the evidence is taken at its face value, it would at
8
the most indicate that the relationship between them were strained.
In support of the discovery of the clothes, pursuant to the
disclosure memorandum at Exhibit 27 and its consequential seizure at
Exhibit 28, we find that there is absolutely no evidence that the axe and the
clothes on their seizure were sealed and remained in that sealed condition
till they were examined by the chemical analyzer. The report of the
chemical analyzer at Exhibit 45 indicates that the axe and the sickle were
found stained with blood of ‘A’ group, while the blood stains on the sickle
could not be determined. The evidence further indicates that the clothes of
deceased Subhadrabai were found with blood stains of ‘A’ blood group.
Even the clothes of deceased Nivrutti were also found stained with blood
of ‘A’ group. However, since there is no evidence about sealing of the said
articles on their seizure, according to us no reliance can be placed, much
less implicit reliance on the findings of the chemical analyzer.
9
A reference at this juncture may usefully be made to the
judgment of Division Bench of this Court in Ashraf Hussain Shah Vs. State
of Maharashtra reported in 1996 Cri. L.J. 3147. The Division Bench of this
Court, by relying upon earlier judgment of this Court in Devraj Suvrana
Vs. State of Maharashtra reported in 1994 Cri L.J. 3602, came to the
conclusion that since there was no proof that the articles were sealed and
remained in that condition till they were sent to the chemical analyzer, the
evidence in respect of recovery and the consequential finding of the
chemical analyzer could not be relied upon. According to us therefore the
evidence in respect of the discovery as well as finding of those articles
stained with blood by the chemical analyzer will have to be left out of
consideration, as the prosecution has not ruled out the possibility that the
articles could have been tampered with on account of any absence of any
evidence regarding sealing of the articles.
In respect of the third circumstances i.e. the dog-tracking
10
evidence, we find that the evidence of PW- Devidas indicates that all the
persons including the accused were made to stand in the line, and dog then
moved around and barked at the appellant. There is no evidence as to what
was the article which was given to the dog for sniffing. The evidence of
PW-11 Dy. SP Karjatkar indicate that he had given the smell of blood
ig
stained stones to the dog. It is unimaginable that after the scene of incident
panchanama was drawn and the inquest panchanama had already been
drawn, the stone which was given to the dog for sniffing could be said to
have been the stone which was last handled by the appellant. We therefore
find that no reliance whatsoever can be placed on the evidence of the dog-
tracking. In any event, the evidence of the tracker dog is not substantive
piece of evidence and in the absence of proof of the dog barking at accused
as well as proof of the article which was given to the dog for sniffing, no
reliance whatsoever can be placed on the evidence of dog tracking. We find
that there is no other evidence of corroborative nature which would
corroborate the evidence of dog tracking.
Thus having examined evidence against the appellant, we find
11
that there is no evidence which would conclusively prove the offence
against the appellant beyond reasonable doubt. According to us therefore
the appellant is entitled to be given the benefit of doubt.
Accordingly, Criminal Appeal No.899 of 2005 is allowed, and
12
the conviction and sentence of the Appellant - Rajaram Limbaji Babar is
hereby quashed and set aside and the Appellant is acquitted of the offence
with which he was charged and convicted. Fine, if paid, be refunded to
13
him.
Since the appellant is in jail, he be released forthwith, if not
required in any other case.
(A.S. GADKARI,J.)
(P. V. HARDAS,J.)
No comments:
Post a Comment