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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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