Bombay High Court
Rajaram Limbaji Babar vs The State Of Maharashtra on 27 January, 2014
Author: P.V. Hardas
Bench: P. V. Hardas, A.S. Gadkari
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Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 899 OF 2005
Rajaram Limbaji Babar
Age 42 years, Occ: Agriculturist,
residing at Sohale, Tal. Mohol,
Dist: Solapur, Maharashtra. ...Appellant
(Original Accused No.1.)
Vs.
The State of Maharashtra
(at the instance of Mohol Police Station
Solapur in C.R. No.224/04) ...Respondent.
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Mr. Milind S. Thobde with Mr. P.G. Sarda for Appellant.
Mr. H.J. Dedhia, APP for Respondent-State.
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CORAM: P. V. HARDAS &
A.S. GADKARI, JJ.
JANUARY 27, 2014.
ORAL JUDGMENT (Per P.V. Hardas, J.):
1 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 ::: Downloaded on - 13/02/2014 23:10:55 ::: 2 APEAL.899-2005.sxw judgment dated 31 August 2005, in Sessions Case No.18 of 2005, by this appeal questions the correctness of his conviction and sentence.
2 The facts in brief, as are necessary for the decision of this appeal, may briefly be stated thus:
(i) PW-3 Bhalchandra Patil who was police patil of the village 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 ::: Downloaded on - 13/02/2014 23:10:55 ::: 3 APEAL.899-2005.sxw 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 investigation was accordingly handed over to PW-11 Dy. S.P. Karjatkar.
(iii) 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-
::: Downloaded on - 13/02/2014 23:10:55 ::: 4APEAL.899-2005.sxw 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 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 - 13/02/2014 23:10:55 ::: 5
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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 2½" x 2" over left shoulder
4. Abrasion over forehead 2" x 2".
5. Incised wound on left palm thinner aspect 2" x ½".
6. Incised wound on left hand second web space 1" x ½"
7. Linear abrasion 2½" x ¼" transverse on left arm.
8. Abrasion on right cubital fossa 2" x 2".
9. CLW first web space of right hand 1" x ½".
10. peeling of skin on left should 6" x 5" and on left buttock 4 x 4"."
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 ½" 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 ::: Downloaded on - 13/02/2014 23:10:55 ::: 6 APEAL.899-2005.sxw 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 ½" 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 ¼".
On internal examination, he noticed the following injuries:
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 ½".
(viii) According to him all the injuries were ante mortem and 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.
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(x) The accused denied his guilt and came to be tried. The 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.
3 In order to effectively deal with the submissions advanced before us by Shri Milind Thobde, learned Counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.
4 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 ::: Downloaded on - 13/02/2014 23:10:55 ::: 8 APEAL.899-2005.sxw 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 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 ::: Downloaded on - 13/02/2014 23:10:55 ::: 9 APEAL.899-2005.sxw 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 the most indicate that the relationship between them were strained.
8 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.
::: Downloaded on - 13/02/2014 23:10:55 ::: 10APEAL.899-2005.sxw 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.
::: Downloaded on - 13/02/2014 23:10:55 ::: 11APEAL.899-2005.sxw 10 In respect of the third circumstances i.e. the dog-tracking 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 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.
::: Downloaded on - 13/02/2014 23:10:55 ::: 12APEAL.899-2005.sxw 11 Thus having examined evidence against the appellant, we find 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.
12 Accordingly, Criminal Appeal No.899 of 2005 is allowed, and 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 him.
13 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.)
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