BARKU BHAVRAO BHASKAR Vs STATE OF MAHARASHTRA
Bench: A.K. PATNAIK,FAKKIR MOHAMED IBRAHIM KALIFULLA
Case number: Crl.A. No.-000910-000910 / 2010
Diary number: 28003 / 2008
Advocates: REVATHY RAGHAVAN Vs
ASHA GOPALAN NAIR
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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
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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
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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,
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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
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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
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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.
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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
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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
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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
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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
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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,
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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.
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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
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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.
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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.
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………….……….…………………………..J. [A.K. Patnaik]
...……….…….………………………………J. [Fakkir Mohamed Ibrahim
Kalifulla] New Delhi; July 25, 2013.
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