REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.910 OF 2010
BARKU BHAVRAO BHASKAR …APPELLANT
VERSUS
STATE OF MAHARASHTRA …RESPONDENT
J U D G M E N T
FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
1. This appeal is directed against the judgment of the High Court of
Bombay dated 10.02.2006, in Criminal Appeal No.1024 of 2001. The sole
accused is the appellant before us. He was convicted by the trial
Court in Sessions Case No.49 of 2001, for the offences punishable
under Sections 364, 302 and 201 of IPC. He was imposed with sentence
of life for the offence proved under Section 302 IPC and five years'
rigorous imprisonment for the offence under Section 354 IPC apart from
three years rigorous imprisonment for the offence under Section 201
IPC. The trial Court also imposed fine with a default sentence. On
appeal, the High Court having confirmed the conviction and sentence
imposed, the appellant has come before us by filing this appeal.
2. The case of the prosecution as projected before the trial Court, to be
stated in a nutshell was that the deceased was a female child aged
about 6 years and was the daughter of the complainant PW-1. The
accused was also related to the family of PW-1. PW-1 used to undertake
masonry work. The appellant also worked under PW-1 on certain
occasions and according to PW-1, as supported by the version of his
brother PW-5, there was some dispute relating to payment received by
the appellant, by way of wages and for which no services were rendered
by him. It is the case of the prosecution that the appellant was
responsible for the killing of the deceased Rakhi, daughter of PW-1
and the motive attributed for such killing was the wage dispute that
was pending between the appellant and PW-1. The occurrence took place
on 03.12.2000.
3. According to the prosecution, the mother of the deceased, PW-3, had
seen the deceased in the company of the appellant at around 10.30 am
at her residence when the appellant said to have fed sugarcane to the
child Rakhi. PW-3 at that time was stated to be washing the clothes
and after completing her domestic work, she noticed that both of them
were not present in the house. At around 1.15 pm, according to PW-7, a
sweet vendor in that area had an occasion to see the appellant and the
deceased, since the appellant bought some sweets in his shop for the
deceased. Thereafter, in the evening, after PW-1 returned back from
his work, he found that the deceased Rakhi was not at home. He then
along with his brother PW-5 and one Balvant PW-4, went to the house of
appellant but they could not find the child over there. PW-3 informed
that she saw the child in the company of the appellant and that since
the appellant was nowhere to be found she felt that the accused might
have taken the deceased Rakhi to the village Kakane, as he was earlier
stating that he wish to take the child to the village to see his
mother who happened to be the grand-mother of the child. The
complainant PW-1 along with PW-4, stated to have gone to the village
Kakane and made enquiries about the missing child Rakhi but neither
the accused nor the deceased were found there. Thereafter, in the
evening, PW-1 came to know that appellant was seen taking the child
along with him by one Mohna, another child of the same age group as
the deceased. PW-1 once again went back to the village and brought the
appellant to his house and on his way back, the appellant appeared to
have made an extra-judicial confession by stating that if he was not
beaten, he would tell the truth and so saying revealed that he had
killed the child on account of the wage dispute as between him and PW-
1. The appellant then stated to have informed that he took the
deceased Rakhi to Patvihir Shivar area, near the mountain and killed
her there where he stated to have hidden the dead body under the
stones.
4. Thereafter, the appellant was taken to the police station, where a
complaint Ext.1 was lodged wherefrom, the appellant took the policeman
along with PW-1 and 7-8 others to Patvihir Shivar area in the Jeep,
where the appellant identified the spot of the incident. At the
instance of the appellant, the dead body of the deceased Rakhi was
recovered by removing the stones and it was found that the deceased
had sustained bleeding injuries on her head and ear and that at that
point of time she was wearing her school uniform. Further, at the
instance of the appellant, in the presence of PW-2, a panch witness,
the blood stained shirt of the accused was also recovered under
Exts.16 and 17. The said shirt was recovered at a location on Khedgaon
road, about two furlongs away from the village Nakode and it was found
hidden under a stone. In support of the prosecution, as many as nine
witnesses were examined and several exhibits were marked.
5. While PW-1 is the complainant, PW-2 is panch witness for recovery of
the blood stained shirt of the appellant, PW-3 and PW-7 were examined
for the last seen theory of the appellant, along with the deceased. PW-
5, the brother of PW-1, deposed about the earlier dispute between the
appellant and PW-1. PW-6 is Dr. Priyanka Asher who conducted the
postmortem and issued Ext.21 report. The chemical analysis reports
relating to the clothes of the deceased, as well as that of the
appellant were marked as Ext.4. Based on the evidence recorded, when
the incriminatory circumstances were put against the appellant under
Section 313, the appellant made a simple denial of those circumstances
and did not come forward with any explanation. No defence witness was
examined on the side of the appellant. It is based on the above
evidence, that the trial Court found the appellant guilty of the
offences falling under Sections 364, 302 and 201 IPC, for which the
sentence came to be imposed, which was ultimately confirmed by the
High Court.
6. The case on hand was based on the circumstantial evidence, which were
placed before the trial Court and based on the appreciation of the
said evidence, the conviction came to be imposed. The trial Court
after analyising the medical evidence as demonstrated by PW-6, the
doctor, who conducted the postmortem, as well as the certificate
issued by her, reached a conclusion that the death of the deceased was
a homicidal one. Based on the other evidence the trial Court also
reached a conclusion that there were clinching circumstances against
the appellant and that there was no missing link in the chain of
circumstances demonstrated before it.
7. The circumstances which were examined by the trial Court were
formulated and noted by the High Court, which were five in number. The
circumstances were:
"(i) Rakhi being last seen in the company of the accused.
(ii) Extra-judicial confession of the accused.
iii) Discovery of the blood stained shirt at the instance of the
accused which bears blood stains of the same group as that of
the deceased.
iv) Discovery of the dead body at the instance of the accused.
v) Motive."
8. Both the Courts have discussed each one of the circumstances in depth.
The ultimate conclusion was that the circumstances were incapable of
being explained on any other reasonable hypothesis, except that the
guilt of the appellant, were totally inconsistent to draw an inference
of innocence of the appellant.
9. When we examine the circumstances dealt with by the Courts below in
the foremost, it will be worthwhile to refer to the injuries sustained
by the deceased, as there was an argument raised on behalf of the
appellant that there were grave doubts as to whether the death itself
was the homicidal one. The injuries as found in the postmortem report
were as under:
"1) Abrasion of about 0.5 cm x 0.5 cm on inner part of upper lip
swelling.
2) Abrasion of about 2 x 2 cm on left frontal area.
3) Abrasion of about 0.1 cm x 0.1 cm behind left ear lobula.
4) Swelling of left side of face.
5) Left black eye.
10. On the internal examination, she found following injuries.
1) Haematoma on the left side under the scalp.
2) Fracture of coronal sutured line extending towards temporal and
parietal parts on both the sides.
3) Brain tissue congested.
Meningeal tear on temporal region right side, and on parietal region
left side (about 2 x 2 cm each side)"
11. With that, when we consider the opinion of the postmortem doctor PW-6,
according to her those injuries were antemortem in nature and the
internal injuries were corresponding to the external injuries. The
cause of death was shock due to cardio-respiratory arrest on account
of the head injuries. The postmortem report was Ext.22. When we
examine the evidence of PW-6, there was a clear suggestion put to her
to the effect that these injuries could have been sustained by a fall
or by an accident. It was suggested that if a person falls from a
mountain or a considerable height, the very same injuries could have
been sustained. While answering the said suggestion in affirmative, PW-
6, however, qualified her statement by stating that the injuries
sustained by fall will not be as extensive as it was in the case of
the deceased. The said specific statement of PW-6, therefore, ruled
out the possibility of the deceased having fallen down, either on her
own or by way of an accidental fall by which she could have sustained
the injuries, which were noted in the postmortem report Ext.22.
Further the trial Court has also stated that on behalf of the accused,
the homicidal cause of death was not seriously disputed. In such
circumstances the conclusion that the death of the deceased was a
homicidal one, has become an irreversible one and proceeding on the
above basis, the only other factor left to be examined was as to who
was responsible for causing the said homicidal death of the deceased.
When we examine the said question, the circumstances narrated by the
Courts below require to be considered. All that we can examine in this
appeal is as to whether there were any serious flaws in the judgment
of the Courts below, while holding that the circumstances found proved
against the appellant were all clinching and that there were no
missing link in those circumstances, in order to hold that the
appellant was not guilty of the charges found proved against him.
12. When we examine first of the circumstances, namely, the last seen
theory put against the appellant, we find that the evidence of PW-3
and PW-7, were relied upon to support the said circumstance. PW-3 is
none other than the mother of the deceased. The Court has found that
the appellant being a relative, his presence at 10.30 am on the date
of the occurrence in the house with the deceased sitting on his lap,
was noted by PW-3, when she was washing the clothes and attending to
the other domestic chores. The Courts have found that there was no
reason for PW-3 to utter any falsehood on this aspect and that she had
seen the deceased and the appellant together till about 11 am, in the
morning and thereafter, she was under the impression that the
appellant, as was suggested earlier, would have taken the girl to his
mother's place in the village, who also happened to be the grand-
mother of the child. Such an impression gained by PW-3, could not have
been ruled out. However, when the child was not traced till the
evening, it was quite natural that PW-1, the father of the deceased,
was duly informed, who along with PW-5, his brother, stated to have
made an intensive search and in that process, they came across the
version of PW-7, a petty shop owner, in whose shop the appellant and
the deceased were found at around 1.15 pm, when the appellant procured
some sweets valued at Rs.1 for the deceased child.
13. Therefore, the Courts below have held that the last seen theory was
thus fully established. An attempt was then made to find fault with
the said evidence by contending that the role of PW-7 came to light
only through one Mr. Ashok, who was not examined. The said contention
was rejected by stating that on behalf of the appellant, a requisition
was initially made to examine the said Ashok and for the reason best
known to him, it was subsequently withdrawn. By referring to the said
conduct displayed on behalf of the appellant, it was held that the
evidence of PW-3 and PW-7, sufficiently establish the circumstance,
namely, that the deceased was in the custody of the appellant before
she ultimately met with her unfortunate death.
14. In fact, there was one other child witness by name Mohna, who appeared
to have informed PW-1 about having seen the deceased in the company of
the appellant on that very day. Though necessary steps were taken by
the prosecution to examine the said child, it is found that the child
witness who was about 6 years old, did not open her mouth in the Court
and the High Court has noted that such a conduct displayed by the said
child cannot be found fault with and the very factum of the attempt
made to examine the child was held in favour of the prosecution by
stating that the prosecution did not want to suppress any material in
order to prove whatever evidence that was existing. We also fully
concur with the said conclusion of the High Court, in so far as the
said part of the prosecution case as displayed before the trial Court.
15. The other circumstance, namely, about the blood stains found on the
clothes of the appellant was concerned, it was contended that though
the blood group found on the clothes of the appellant was 'A' and that
the blood group of the deceased was also 'A', it was submitted on
behalf of the appellant that the blood group of the appellant was not
tested. While examining the said contention, the High Court has taken
pains to note that when at the instance of the appellant, his shirt
was recovered under Exts.16 and 17 and when the appellant was
physically examined, it was found that there were absolutely no
injuries on the body of the appellant and, therefore, the question of
the blood stains from the body of the appellant to get transmitted to
his shirt was ruled out. It was, therefore, held that the blood stains
found on the appellant's shirt, considered along with the factum of
the appellant having led the prosecution to discover his blood stained
clothes and the body of the deceased put together, the blood stains
found in the shirt of the appellant, could have been only that of the
deceased and none else. The said conclusion arrived at by the High
Court was fully justified and no fault can be found with the said
conclusion. As regards the blood stains found on the shirt of the
appellant, except the ipsi dixit submission made on this aspect, no
other submission was made and there was no valid explanation offered
on behalf of the appellant as to how the blood stains came to be found
on his shirt, which was recovered at his instance, in the presence of
the panch witnesses.
16. As far as the recovery of the body of the deceased was concerned, the
Courts below have noted that such recovery came to be made only at the
instance of the appellant, which was witnessed by PW-1, the father, in
whose presence at the foot of the mountain called "Munja Dongar", in
the precincts of village Patvihir, the dead body covered by large and
small stones, as well as 2-3 branches of babool tree. The High Court
has discussed the said evidence in minute details to hold that the
recovery of the body of the deceased was only at the instance of the
accused and, therefore, there was no scope to doubt the same.
17. With that when we come to motive aspect, which was one other
circumstance found proved against the appellant, we find from the
evidence of PWs-1, 4 and 5 that all of them in unison deposed that the
appellant had an axe to grind against PW-1, since PW-1 had once abused
him at the village, as regards the issue relating to the payment
received by him, for which he did not render any service. Though a
feeble attempt was made on behalf of the appellant to state that there
was some variation in the version of the witnesses, the High Court
considered the said submission in detail and has found that they were
all trivial and that there was absolutely nothing to contradict the
allegation of motive, as against the appellant, vis-à-vis PW-1, the
complainant.
18. Having regard to such overwhelming evidence available on record, which
proved every one of the circumstances put against the appellant and
which has been examined in detail by the trial Court as well as by the
High Court, we do not find any merit in this appeal. The appeal fails,
the same is dismissed.
………….……….…………………………..J.
[A.K. Patnaik]
...……….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
July 25, 2013.
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