Bombay High Court
Anil Motibaba Barokar vs State Of Maharashtra on 14 September, 1995
Equivalent citations: 1996CRILJ494
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT
1. On 3-3-1993, the Additional Sessions Judge, Nagpur, on conclusion of Sessions Trial No. 198/92, convicted the accused/appellant for the offence punishable under Section 376(g) I.P.C. and sentenced him to suffer rigorous imprisonment for 5 years and by this criminal appeal, the accused/appeal is challenging his conviction and sentence passed by the Additional Sessions Judge, Nagpur.
2. The incident is indeed tragic in which an insane woman aged about 25 to 27 years was gang raped and done to death. According to the prosecution case in between 21-11-1991 at 6 P.M. to 22-11-1991 at 9 A.M., the accused/appellant Anil Motibaba Barokar and three other accused persons namely Yogesh Laxman Gakhare, Hemraj Narayan Hingve and Arun Yadaorao Hingve gang raped one insane lady (name not known) at Khapri Barokar in the field of one Abdul Hafiz and in furtherance of their common intention committed her murder. The oral report was lodged by P. W. 1 Ajabrao on 22-11-1991 at Police Station Kondhali at about 1 P.M. and on the basis of the said report, Crime No. 220/91 was registered. Investigation commenced in the said crime and the Investigating Officer prepared inquest panchanama (Exh. 16), spot panchanama (Exh. 18), seized mud and other articles from the spot (Exh. 23), photograph of deceased lady (Exh. 45), drew sketch map (Exh. 44), sent the dead body of the lady for autopsy and post-mortem report (Exh. 62) was obtained. The accused/appellant and two other accused persons namely Yogesh and Hemraj were arrested on 23-11-1991 and the fourth accused Arun was arrested on 24-11-1991. At the instance of the accused/appellant, a stone was seized on 23-11-1991 vide seizure memo (Exh. 57) and seizure panchanama, (Exh. 58). The accused/appellant and three other accused persons were sent for medical examination on 26-11-1991 and injury report of accused/appellant in Exh. 65 and the injury reports of other three accused persons are Exhs. 67, 69 and 71. The seized articles were sent for chemical analysis and the C.A. report regarding blood group of accused/appellant and other accused persons were obtained and the said C.A. reports are Exhs. 78, 79, 80 and 81 on record. As regards other articles, C.A. report is Exh. 76. On conclusion of investigation, the investigating officer submitted charge sheet against the accused/appellant and three other accused persons and since the case was exclusively triable by the Sessions Judge, the appellant/accused and three other accused persons were committed to the Court of 5th Additional Sessions Judge, Nagpur, on 19-9-1992. Charge was framed against the accused/appellant and three other accused persons to the effect that all four accused persons in between 21-11-91 at 6 P.M. to 22-11-91 at 9 A.M. at Khapri Barokar in the field of one Abdul Hafiz committed gang rape on the lady (name not known) aged about 25 to 27 years and thereby committed an offence punishable under Section 376(2)(g) I.P.C. and that all the accused persons in furtherance of their common intention on the same date, time and place committed murder by intentionally or knowingly causing the death of unknown female aged about 25 to 27 years and thereby committed an offence punishable under Section 302 read with Section 34 I.P.C. The accused/appellant as well as the other accused persons pleaded not guilty. Prosecution produced 7 witnesses in all and also exhibited number of documents. P. W. 1 Ajabrao is the person who lodged the oral report on 22-11-91 at 1 P.M. at Police Station Kondhali. He is the labour working in the field of Abdul Hafiz where the dead body of that lady was found. P. W. 2 Ramdas Hingwe and P. W. 3 Madhukar Kinkar, who according to the prosecution, were the persons who heard the accused/appellant and three other accused persons/deliberating and conspiring to commit rape on that insane lady. P. W. 4 Nandkishore Sharma is the panch witness of the seizure memo (Exh. 58), P. W. 5 Dr. Haribhau Katade, Professor and Head Forensic Medicine and Toxicology Department, Medical College, Nagpur, is the witness who conducted the autopsy of the dead body of that lady and gave post mortem report (Exh. 62). P. W. 6 Dr. Sunil Sanghai, Assistant Lecturer, Government Medical College, Nagpur, examined the accused/appellant as well as the other accused persons on 26-11-91 and gave injury reports Exh. 65, 67, 69 and 71 and P. W. 7 Ramnath Awasthi, is the Police Sub Inspector, who conducted the investigation. The prosecution also exhibited and proved inquest panchanama (Exh. 16), spot panchanama (Exh. 18), seizure of mud and other articles (Exh. 23), post mortem report (Exh. 62), photograhps of the deceased (Exh. 46), seizure memo and seizure panchanama (Exhs. 57 & 58), injury reports of the accused persons (Exhs. 65, 67, 69 and 71), C.A. reports (Exhs. 78, 79, 80, 81 and Exh. 36), the oral report (Exh. 48) and the printed first information report (Exh. 74). Statements of the accused/appellant and three other accused persons were recorded and the accused/appellant as well as the other accused persons denied their involvement in the said crime. In answer to question No. 43, the accused/appellant Anil stated that after his arrest by the police, he was made naked and asked to crawl in the premises of police station and he was beaten and also scratched by nails. According to him he has been falsely implicated because he is having enmity with P. W. 7 P.S.I. Awasthi. He further stated that the reason of the enmity was that he was working as Manager at Bombay-Pune Dhaba and the owner of the said Dhaba had one air gun. According to him, P. W. 7 P.S.I. Awasthi wanted that air gun but he refused to oblige. He also stated that P. W. 7 P.S.I. Awasthi also wanted his help to nap one Amrutsingh Sardar, who was also running a Dhaba nearby, on the charge of selling opium but he did not help P.W. 7 P.S.I. Awasthi and for these reasons he has been falsely implicated.
3. The Additional Sessions Judge, Nagpur, acquitted all the four accused persons for the offence punishable under Section 302 read with Section 34 of I.P.C. and also acquitted other three accused persons for the offence punishable under Section 376(g) I.P.C. but as regards the accused/appellant, the trial Court found that prosecution has been able to prove the involvement of the accused/appellant that he committed offence of rape on that lady and consequently convicted him for the offence punsihable under Section 376(g) I.P.C. and sentenced him to suffer rigorous imprisonment for five years.
4. I have heard the learned counsel for the accused/appellant and the Additional Public Prosecutor and gone through the record of the case with the assistance of the learned counsel for the parties.
5. The learned counsel for the accused/appellant urged that though prosecution has been able to prove that one unknown lady aged about 25 to 27 years allegedly insane was gang raped and done to death but according to the learned counsel for the accused/appellant, there is no evidence which may connect the accused/appellant for the aforesaid offence. The learned counsel also urged that there is no direct evidence whatsoever and the three circumstances which have been considered by the trial Court against the accused/appellant for convicting him for the offence punishable under Section 376(g) I.P.C. do not conclusively establish the guilt of the accused/appellant and, therefore the conviction and sentence awarded by the trial Court deserves to be set aside.
6. On the other hand, the learned Additional Public Prosecutor submitted that the three circumstances relied upon by the trial Court are amply proved on record and the said circumstances do furnish sufficient basis for the conviction of the accused/appellant for the offence punishable under Section 376(g) I.P.C. and, therefore, conviction and sentence awarded by the trial Court is well merited warranting no interference by this Court. Mr. Dhote, the learned Additional Public Prosecutor also submitted that the acquittal of the other three accused persons for the offence punishable under Section 376(g) I.P.C. was not justified but since the State has not chosen to file an appeal against judgment of acquittal acqutting the three accused persons, he does have much to say except that even if the three other accused persons have been acquitted, if on the basis of evidence on record, accused/appellant can be held guilty, the conviction and sentence awarded to the accused/appellant cannot be interfered with merely because other three accused persons have been acquitted. In support of this contention, the learned Additional Public Prosecutor relied on the decision of the Apex Court in Kishan Singh v. State of Punjab, 1992 Supp (2) Supreme Court Cases 161.
7. I have considered rival submissions raised by the learned counsel for the parties. The legal position is and reasonably well settled that merely because the co-accused have been acquitted and prima facie if the acquittal of the co-accused is bad and no appeal has been filed against the judgment of acquittal by the State, that by itself will not be ground of acquittal of the accused who has been convicted if there is evidence on record establishing the guilt of such accused beyond any reasonable doubt. Therefore, merely because the three accused persons have been acquitted by the trial Court on almost identical evidence and the State has not chosen to file appeal against the judgment of acquittal, if on the basis of the available evidence on record, the conviction of the accused/appellant could be sustained, the present accused/appellant cannot derive any advantage. What is, therefore, required to be seen is whether there is sufficient evidence on record to bring home the guilt of the accused for the offence punishable under Section 376(g) I.P.C.
8. The accused/appellants has been convicted by the trial Court relying upon three circumstances namely, (1) that on medical examination of the accused/appellant, the injuries were found on the person of the accused/appellant and the said injuries were in the nature of nail marks on forearm, abrasion on right elbow, abrasion on right knee front and other parts of the body, (2) that nail clippings of the deceased were found to have blood stains and (3) recovery of a stone stained with blood at the instance of the accused/appellant and the said three circumstances, were considered by the trial Court by observing thus :
"14. The circumstances proved against accused No. 1 are these :
1. The injuries on his person as deposed by P. W. 6 Dr. Sanghai. The injuries like nail marks on the fore-arm and abrasions on the elbow, abrasion on knee front, abrasion on right knee, left knee, abrasion on right leg. In all there were 9 injuries including nail marks. It is pertinent to note that nail clippings of the deceased were also sent for medical examination. The report of C.A. Exh. 77 shows that in the nail clippings (Exhs. 7 and 8) blood was detected. This clearly shows that the deceased while offering resistence caused nail marks on the culprit. The number of abrasions found on her body which are about 20 in numbers, is indicative of the fact that there was great deal of struggle. Even the photographs which are collectively marked Exh. 46 shows that there were trampling marks and it further shows that the earth at particular spot became smooth because of trampling. The second circumstance against accused No. 1 is recovery of stone. I have already held it as proved. This recovery becomes relevant with the evidence of Medical Officer and the C.A. report. From this it can be inferred that the accused No. 1 had a knowledge about the place where stone was lying. If this is read with the injuries on his person and also in the light of the injuries on the person of deceased, if can be safely inferred that the accused No. 1 indulged in raping the woman."
9. The learned Additional Public Prosecutor frankly submitted that the aforesaid three circumstances are the only circumstances on the basis of which the trail Court has convicted the accused/appellant for the offence punishable under Section 376(g) I.P.C. and these are the only three circumstances which are available on record on the basis of which the prosecution seeks to bring home the guilt of the accused for the offence punishable under Section 376(g) I.P.C.
10. The learned counsel for the accused/appellant submitted as regards the first circumstance that the accused/appellant was arrested on 23-11-91 and according to the prosecution the date of incident was in the evening of 21-11-91 to in the morning of 22-11-91 the accused/appellant was examined for the first time on 26-11-91 and at the time of the arrest of the accused/appellant there were no injuries and that could be seen from the arrest memo of the accused/appellant and it was only that after he was arrested, the investigating officer made him bare and asked him to crawl and nails were scratched on the body of the accused/appellant and accordingly the injuries were found on the person of the accused/appellant on 26-11-91 when he was medically examined by P. W. 6 Dr. Sanghai. I am not satisfied by the aforesaid argument of the learned counsel for the accused/appellant. P. W. 7 Awasthi who is the investigating officer has explained the reason as to why in the arrest memo the injuries could not be recorded. According to P. W. 7 Awasthi, the injuries on the person of the accused/appellant were superficial and therefore not recorded and since he was busy in investigation, he did not send the accused/appellant for medical examination immediately and only on 26-11-91, the accused/appellant was sent. The circumstances and the reasons narrated by the accused/appellant in his statement under Section 313 Cr.P.C. do not inspire confidence to infer that P. W. 7 Awasthi and the accused/appellant were on enimical terms for the reasons that P. W. 7 Awasthi demanded air gun from accused/appellant which belonged to his employer and the accused/appellant refused to oblige and also that the accused/appellant did not help P. S. I. Awasthi when he wanted to nab one Amrutsingh Sardar on the charge of selling of opium. P. W. 6 Dr. Sanghai has clearly deposed that on 26-11-91 he examined accused/appellant and also collected blood, semen and public hari sample. At the time of external examination of the accused/appellant, P. W. 6 Dr. Sanghai found as under :
"Secondly sexual characters were well developed, penis well developed. Smegma-absent, prepuse was normal. Frenum normal. No external injury on the genitals, I found abrasion on left elbow back side and outward near laternal epicogondise 1 x 1 cm brownish scalp.
2. Abrasiosn multiple dot line on dorsum of left hand over the ends of metacarpals brownish in colour.
3. Nail marks on right fore arm mid 1/3rd lateral aspect and backwards browns scalp formed.
4. Abrasion on right elbow just above ole crenol process. 0.5 x 0.5 cm, brown scab present.
5. Scratch abrasion on medial aspect of right elbow oblique, 6 cms, long lenier brown scab present.
6. Abrasion on right knee, front lower half 3 x 1 cms. horizontal oblique, brownish scab present.
7. Abrasion on right knee, upper halp lateral aspect 0.5 x 0.5 cm. brown scab.
8. Abrasion on left knee, lower half 1 x 1/2 cm brown scab present.
9. Abrasion on right leg lower 1/3rd lateral aspect 5 cms. long lenier, brown scab present :
P.W. 6 Dr. Sanghai also found the injuries sustained by accused/appellant were possible by finger nails and hard and blunt object and the age of the injuries was 3 to 7 days. Thus prosecution has been able to prove the first circumstance that on 26-11-91 when accused/appellant was medically examined, he had 9 injuries which could be caused by finger nail and hard and blunt/rough object and the said injuries were caused 3 to 7 days prior to the date of his medical examination.
11. As regards the recovery of stone made at the instance of accused/appellant, the learned counsel for the accused/appellant submitted that only one panch namely P.W. 4 Nandkishore was examined by prosecution and he too has not fully supported the case of the prosecution and, therefore, his testimony is not reliable. The learned counsel also submitted that the stone which is alleged to have been recovered at the instance of the accused/appellant was already lying there and it is highly improbable that the said stone having blood stains recovered from near dead body, would not be noticed while preparing spot panchanama and inquest panchanama. The learned counsel also submitted that even otherwise recovery of the stone is held to be proved and it has no bearing and does not connect the accused/appellant for the offence punishable under Section 376(g) I.P.C. Though deposition of P.W. 4 Nandkishore does not fully support the prosecution inasmuch as the public prosecutor himself contradicted the said witness but so far as the relevant evidence as regards recovery of the stone at the instance of the accused/appellant is concerned, I do not find any error in the judgment of trial Court relying upon the testimony of P.W. 4 Nandkishore and there is no merit in the contention of the learned counsel for the accused/appellant that the said stone could have been noticed at the time of preparation of spot panchanama and inquest panchanama. P.W. 4. Nandkishore proves the recovery of the said stone at the instance of the accused/appellant and to that extent the finding recorded by the trial Court is not assailable.
12. The learned counsel for the accused/appellant submitted that the third circumstance namely the nail clippings of the deceased were found to have blood stains and the said nail clippings were sent for chemical analysis and on the said clippings though human blood was found, but the C.A. report does not reveal that it relates to any particular group and, therefore, this circumstance cannot be taken against the accused/appellant. Proof of this third circumstance is beyond dispute. The trial Court considered the aforesaid three circumstances against the accused for connecting him with crime. Before me the main question is whether the three circumstances proved by prosecution and taken on its face value connect the accused/appellant for the offence punishable under Section 376(g) I.P.C. or not.
13. Indisputably there is no direct evidence in the case and the conviction of the accused/appellant is based on three circumstances aforesaid. There is no doubt that the guilt of the accused can be proved by circumstancial evidence but then the circumstancial evidence should complete the chain. Guilt of the accused and no other hypothesis should be possible from the circumstances referred to hereinabove and relied upon by prosecution and the said circumstances must be totally inconsistent with the innocence of the accused, only then conviction of the accused on the basis of such circumstances would be justified. Are the three circumstances relied upon by the trial Court of a clinching nature and conclusively establish the prosecution case against the accused/appellant and the offence punishable under Section 376(g) I.P.C. ? Do these circumstances form the unbroken chain pointing out the guilt and guilt alone of the accused for the offence punishable under Section 376(g) I.P.C. ? It would be seen that semen, blood and pubic hair of the accused/appellant which were collected by P.W. 6 Dr. Sanghai were sent for chemical analysis. As regards the semen and blood of the accused/appellant, the C.A. report shows that the blood group of the accused/appellant is 'A' group. Chemical analyser's report further shows that neither semen nor spermatozoa was detected on the pubic hair of the accused/appellant. The clothes of the accused/appellant were seized and they are Exhs. 27, 28 and 29 in that C.A. report Exh. 76. Findings and analysis of these items reveal that no blood was detected on any of these articles nor any semen was found. On the other hand, the clothes of deceased at the time of the commission of crime were seized which are Exh. 1 and 2 in C.A. report (Exh. 76) and findings and the analysis of the said articles is that the clothes of deceased woman were stained with blood group 'O'. The saree which the victim was wearing at the time of the incident was found stained with semen of blood group 'O' as well as blood group 'B' Undisputably the blood group of accused/appellant is 'A' but the victim's clothes had blood stains of group 'O' and semen of blood group 'O' and 'B'. These facts do create doubt about the involvement of accused/appellant in the crime. In any case hypothesis other than the guilt of the accused cannot be ruled out. Similarly, because the nail clippings of the deceased had blood stains, the accused cannot be connected since those blood stains were found to be of human but of not of blood group 'A' to which the accused/appellant belongs. Though the explanation given by the accused about the injuries found on his person is not believable but falsity or incorrectness of the explanation in the circumstances and facts of the case does not supply any support to the prosecution case. The stone which was recovered at the instance of the accuse/appellant also does not help the prosecution so far as the commission of crime of rape on the victim is concerned. Thus vital links of the chain to bring home the guilt of the accused beyond reasonable doubt are clearly missing and the benefit of doubt, therefore, has to go to the accused. It cannot be said, therefore, that the circumstances relied upon by the trial Court and set out by prosecution rule out any other hypothesis except the guilt of the accused, or it can be said that the circumstances relied upon by the trial Court and proved by prosecution are totally inconsistent with the innocence of the accused. As stated the above circumstances do not provide unbroken chain to bring home the guilt of the accused/appellant under Section 376(g) I.P.C. beyond reasonable doubt and for that benefit has to go to the accused/appellant though the crime is gruesome and the incident of gang rape and murder of the insane woman is pathetic but by that itself cannot be sufficient to convict the accused/appellant unless he can be connected with crime.
14. Consequently this criminal appeal is allowed. The judgment passed by the Additional Sessions Judge, Nagpur, on 23-3-1993 is quashed and set aside. The accused is acquitted of the offence punishable under Section 376(g) I.P.C. His bail bonds are discharged.
15. Appeal allowed.