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2007 DIGILAW 1261 (BOM)

Eknath s/o Vitthal Wakle v. State of Maharashtra

2007-09-05

K.J.ROHEE, S.R.DONGAONKAR

body2007
JUDGMENT K.J. Rohee, J The appellant has challenged his conviction for the offence punishable u/s 302 of IPC and sentence of imprisonment for life imposed by the Sessions Judge, Akola in Sessions Trial No.84/1992 decided on 25.6.1993. 2. Devkabai wd/o Shriram Ingle, r/o. Sukli- Nandapur, P.S. Borgaon-Manju, District . Akola was having a son, a daughter and a step daughter. About two years before 1990 her husband died. Both her daughters were married and her son Anil Ingle was to be married. 3. On 10.9.1990 around 1.00 p.m. Anil took his bullocks for grazing to his field. Around 2.00 p.m. Devkabai went to take a round in the field. She found that on learning from Milind s/o Bhimrao Ingle (PW 2), his father Bhimrao s/o Atmaram Ingle (PW 3) and uncle Dinkar s/o Atmaram Ingle (PW 1) were searching for Anil Ingle with 10-12 people in the field. Devkabai learnt that somebody killed Anil and his dead body was lying in the field. Devkabai identified the dead body of Anil. There were several injuries on his head, neck and throat. His face, chest and clothes were smeared with blood. 4. On the same day i.e. on 10.9.1990 at about 2.10 p.m. the appellant had gone to Police Station, Borgaon-Manju, District . Akola and had lodged oral report (Exh.35) to the effect that around 1.30 p.m. when he had gone towards the field of Atmaram Ingle situated at village Sukli-Nandapuer for cutting grass, he found a dead body lying in the cotton crop in the field of Atmaram Ingle. The appellant did not go near the dead body and straightway came to the Police Station and informed the Police. HC Ingle (PW 8) took entry of the report at Sana No.19 in the station diary. PSI Jogdand (PW 9) immediately proceeded to village Sukli- Nandapur. Some people met the police party on their way and they told about the murder. Along with those persons, the police party reached on the spot at about 2.30 p.m. Devkabai Ingle was present there. She identified the dead body to be that of her only son Anil. PSI Jogdand obtained her report (Exh.14) and sent it to the Police Station for registration of offence. On receiving the said report HC Ingle (PW 8) registered Crime No.156/1990 u/s 302 of IPC against an unknown person. 5. She identified the dead body to be that of her only son Anil. PSI Jogdand obtained her report (Exh.14) and sent it to the Police Station for registration of offence. On receiving the said report HC Ingle (PW 8) registered Crime No.156/1990 u/s 302 of IPC against an unknown person. 5. PSI Jogdand prepared inquest panchanama (Exh.15) in presence of the panchas and sent the dead body of Anil to the Civil Hospital, Akola for autopsy. PSI Jogdand also drew spot panchanama (Exh.16). He seized simple earth, smeared earth, umbrella and plastic shoes of the deceased. A pair of tyre chappals was also lying there which did not belong to the deceased. PSI Jogdand summoned the Dog Squad from Akola. 6. Around 7.30 p.m. the Dog Squad arrived on the spot. PSI Ghatale, Dog Master (PW 7) and PC Ahir, Dog Handler (PW 5) took charge of the situation. The smell of the chappals was given to the Dog. The Dog then proceeded towards the village, stopped near the grass and traced out while shirt, white paijama and sickle which were stained with blood. Thereafter the smell of those articles were given to the Dog. The Dog went towards the village, entered in a house, moved around it and stopped. It was found that the house belonged to the appellant. Thereafter, the Dog Squad went to Gram Panchayat School. The appellant was called. He was made to stand in a row of 10-12 persons. The Dog identified the appellant. All those proceedings were recorded in Exh.26, 5 28 and 29. 7. The appellant had an injury to a finger of his left hand. On the next day i.e. on 11.9.1990 the appellant was sent to Government Hospital at Borgaon-Manju for his medical examination. On that day Dr. Nikam, Medical Officer, Civil Hospital, Akola (PW 10) conducted autopsy on the body of Anil Ingle. As many as 14 ante-mortem incised wounds were noted on the body on various parts. Six internal injuries including depressed fracture of frontal bone were noted. Dr. Nikam prepared post-mortem report (Exh.47). Dr. Nikam opined that all the external injuries coupled with internal damage were sufficient in the ordinary course of nature to cause death. He also opined that the injuries are possible by the sickle (Art. 1). The C.A. Reports (Exh. Six internal injuries including depressed fracture of frontal bone were noted. Dr. Nikam prepared post-mortem report (Exh.47). Dr. Nikam opined that all the external injuries coupled with internal damage were sufficient in the ordinary course of nature to cause death. He also opined that the injuries are possible by the sickle (Art. 1). The C.A. Reports (Exh. 41 & 42) show that the clothes of the deceased were stained with blood of group 'O', the manila and paijama detected by the Dog were also stained with blood of group 'O'. Human blood was detected on the sickle and torn baniyan of the appellant. The blood group of the appellant was 'B'. After completion of investigation, the 6 appellant was charge-sheeted. 8. The defence of the appellant is of total denial. He, however, admitted to have given oral report (Exh.35). 9. In order to bring home the guilt of the appellant, the prosecution examined witnesses. PW 2 Milind s/o Bhimrao Ingle, aged about 13 years is the nephew of deceased Anil Ingle. PW 2 Milind saw the dead body lying in the field and informed it to his father Bhimrao s/o Atmaram Ingle (PW 3) and uncle Dinkar s/o Atmaram Ingle (PW 1). Thereafter they went to their field and saw the dead body which was identified to be that of their cousin Anil Ingle. PW 10 Dr. Nikam is the Medical Officer, who conducted autopsy. PW 7 PSI Ghatale is the Dog Master and PW 5 PC Ahir is the Dog Handler. PW 8 HC Ingle and PW 9 PSI Jogdand are the investigating officers. 10. The trial court observed that the case is entirely resting upon circumstantial evidence. After considering the legal position about the circumstantial evidence, the trial court pointed out the following circumstances to connect the appellant with the murder of Anil Ingle. (i) Homicidal death of Anil Ingle; (ii) The appellant and Anil Ingle were last seen together at 1.00 p.m. in the field at a place where after sometime the dead body of Anil Ingle was found lying; (iii) Subsequent conduct of the appellant in lodging vague report at the Police Station; (iv) Cut injury to the second finger of the left hand of the appellant and unacceptable explanation given by the appellant about the said injury; (v) Dog tracking evidence. The Dog tracing out blood stained shirt, paijama and sickle in the grass near the house of the appellant. The Dog pointed out the house of the appellant and subsequently identified the appellant from the row of 12-14 persons; (vi) C.A. Reports connecting the appellant with the sickle and the crime. 11. The trial Court held that the homicidal death of Anil Ingle was established as well as each of the circumstances mentioned above has been established beyond doubt. The trial Court held that the circumstances which have been proved form a complete chain pointing to the guilt of the appellant and the chain of circumstances is inconsistent with the innocence of the appellant. The trial Court, therefore, held the appellant guilty for the offence punishable u/s 302 of IPC and sentenced him as mentioned earlier. The said conviction and sentence is under challenge. 12. We have heard Shri S.V. Sirpurkar, Advocate for the appellant and Shri K.S. Dhote, APP for the respondent/State. We have also gone through the record and proceedings of the trial with the assistance of the learned counsel for the parties. 13. It was vehemently urged by Shri Sirpurkar, the learned counsel for the appellant, that last seen theory is a very weak type of evidence and in the present case it does not point to the guilt of the appellant. Shri Sirpurkar further submitted that dog tracking evidence is equally a weak type of evidence and it is difficult to base conviction on the basis of such evidence. Shri Sirpurkar submitted that the investigating officer failed to collect evidence to establish nexus between the pair of chappals found near the dead body and the appellant; the clothes and the sickle pointed out by the Dog and the appellant as well as the house indicated by the Dog and the appellant. Shri Sirpurkar further submitted that the appellant is an agricultural labour and a simple injury to the finger of his left hand might have been caused while working in the field. Thus the appellant satisfactorily explained the injury on his person and it cannot be taken as a circumstance against him. Lastly Shri Sirpurkar submitted that the prosecution has failed to allege any motive on the part of the appellant to kill the deceased. Shri Sirpurkar submitted that in a case resting upon circumstantial evidence, motive plays vital role. Thus the appellant satisfactorily explained the injury on his person and it cannot be taken as a circumstance against him. Lastly Shri Sirpurkar submitted that the prosecution has failed to allege any motive on the part of the appellant to kill the deceased. Shri Sirpurkar submitted that in a case resting upon circumstantial evidence, motive plays vital role. The absence of motive is fatal to the prosecution case. Shri Sirpurkar submitted that the trial Court erred in holding that the circumstances are proved and that they form a complete chain pointing to the guilt of the appellant. He submitted that the conviction of the appellant is liable to be set aside and the appellant is entitled to be acquitted. 14. Shri Dhote, the learned APP for the respondent/State, on the other hand, justified the impugned judgment. Shri Dhote submitted that there is ample evidence on record to show that it was the appellant who was last seen in the company of Anil Ingle and it was the appellant who informed the Police soon after the incident of killing. Shri Dhote submitted that the dog tracking evidence is a clinching evidence establishing nexus between blood stained clothes, sickle and the appellant. Shri Dhote lastly submitted that it is not necessary that in every case resting upon circumstantial evidence, it is necessary to allege motive on the part of the culprit. It is not a case where motive is pleaded. It is a case of absence of motive and as such absence of motive is not fatal to the prosecution. 15. It was urged by Shri Dhote, learned APP, that though no motive is attributed by the prosecution to the appellant for committing murder of the deceased, conviction can be justified on the basis of circumstantial evidence. In this respect Shri Dhote, relied on 2007 ALL MR (Cri) 28, Sarvanand @ Soiru Gaonkar s/o Purso Gaonkar .vrs. State of Goa, wherein the Division Bench of this Court relying on 2003 (1) SCC 534 observed as under : .Motive would not hamper conviction if the circumstances relied upon by the prosecution are proved beyond doubt. There is no doubt that motive is always relevant and bears a special significance in cases which are based on circumstantial evidence. Absence of motive does not weaken a case but its existence certainly strengthens the case and it assumes significance when there is a doubt. There is no doubt that motive is always relevant and bears a special significance in cases which are based on circumstantial evidence. Absence of motive does not weaken a case but its existence certainly strengthens the case and it assumes significance when there is a doubt. It may be of no consequence if the evidence is strong but in a case of this nature where the evidence is very weak, the motive was of special significance to the prosecution and the prosecution having alleged it but having failed to prove the same, certainly it does break one link in the chain of circumstances.. 16. In the present case, as would be seen later, the prosecution has failed to prove the circumstances. As such the effect of absence of motive on the part of the appellant to kill the deceased would not strengthen the prosecution case, though it may not weaken the prosecution case. 17. We have carefully considered the rival submissions. Before we proceed to consider the circumstances, let us see the legal position in respect of appreciation of circumstantial evidence. It is as under : (1) In Hanumant Govind Nargundkar .vrs. State of M.P., AIR 1952 SC 343 , the Apex Court observed thus : It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. (2) In Sharad Birdhichand Sarda vrs. State of Maharashtra, AIR 1984 SC 1622 , the Apex Court observed thus: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) In Sharad Birdhichand Sarda vrs. State of Maharashtra, AIR 1984 SC 1622 , the Apex Court observed thus: (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (3) In Padala Veera Reddy .vrs. State of A.P. AIR 1990 SC 79 , it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.. (4) In State of U.P. .vrs. Ashok Kumar Srivastava, 1992 Cri.L.J . 1104 , the Apex Court observed thus : .It was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. (5) In C. Chenga Reddy .vrs. State of A.P. 1996 (10) SCC 193 , the Apex Court observed thus . .In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.. 18. On the background of the above legal position let us examine the circumstances. In the present case, the evidence of Dr. Nikam (PW 10) clearly establishes that Anil Ingle (the deceased) met with homicidal death. The number of injuries found on the vital parts of the body also shows that it was a brutal murder. The question is who is the author thereof. The most important circumstance that has been relied upon by the prosecution is that immediately before the dead body of Anil Ingle was noticed lying in the field of Atmaram Ingle, the appellant was seen in the company of Anil Ingle, when Anil Ingle was alive. The evidence of PW 1 Dinkar s/o Atmaram Ingle, PW 3 Bhimrao s/o Atmaram Ingle and PW 4 Subhash s/o Shankar Girhe shows that on the date of incident, they had gone to field Survey nos.31 and 32 for agricultural operation. Initially they worked in Survey No.32 and thereafter in Survey No.31. At about 1.00 p.m. they stopped the work and started going to the village which is close to the field for taking lunch. At that time they saw Anil Ingle grazing his bullocks in field Survey No.31, from which Moog crop was harvested. At that time the appellant was chit-chating with Anil Ingle. At that time the appellant was wearing white shirt and white paijama (Art.6 and 7). 19. The evidence of HC Ingle (PW 8) shows that on 10.9.1990 at 2.10 p.m. the appellant had come to Police Station, Borgaon-Manju and gave oral report (Exh.35). At that time the appellant was chit-chating with Anil Ingle. At that time the appellant was wearing white shirt and white paijama (Art.6 and 7). 19. The evidence of HC Ingle (PW 8) shows that on 10.9.1990 at 2.10 p.m. the appellant had come to Police Station, Borgaon-Manju and gave oral report (Exh.35). The said report is to the effect that on the same day at about 1.30 p.m. while the appellant was going towards the field of Atmaram Ingle for cutting grass, he saw a dead body lying in the cotton crop in the field of Atmaram Ingle. In this respect, the trial court has rightly observed that on seeing a dead body lying in the field, the appellant was expected to inform the field owner or the Police Patil by going to the village. Instead the appellant directly went to the Police Station and gave vague information. This creates suspicion against the appellant about he being the author of the crime in question. 20. It appears that the time gap when Anil and the appellant were last seen and when Anil was found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (1) In State of U.P. vrs. Satish, (2005) 3 SCC 114 , it has been held : .The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.. (2) In Ramreddy .vrs. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.. (2) In Ramreddy .vrs. State of A.P. 2006 ALL MR (Cri) 1533 (SC), it has been held that : .The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration. 21. It is thus obvious that even in a case where there is close proximity of time between the event of the appellant having been last seen with the deceased when the deceased was alive and the factum of death, some corroboration is required. The circumstance that the appellant was seen in the company of Anil Ingle, when he was alive and that the appellant instead of informing the villagers, straightway went to the Police Station and gave vague information to the Police, creates strong suspicion against the appellant. But the suspicion, however, strong cannot take place of proof and we will have to look for some corroboration. 22. About injury to the finger of the appellant, the trial Court observed that the accused did not give satisfactory explanation, that is why, it has been taken as one of the circumstances connecting the accused with the murder in question. While observing this, the trial court ignored the fact that the appellant had gone to the field for cutting grass and it is not uncommon that he might have sustained injury (which is of a minor nature) while cutting the grass. It cannot be said that the explanation offered by the appellant is unsatisfactory so as to connect him with the said offence. In our considered view, this circumstance cannot be taken as proved against the appellant. 23. PW 1 Dinkar, PW 3 Bhimrao and PW 4 Subhash deposed that when Anil Ingle was last seen alive in the company of the appellant in the field, the appellant was wearing white shirt and white paijama. In our considered view, this circumstance cannot be taken as proved against the appellant. 23. PW 1 Dinkar, PW 3 Bhimrao and PW 4 Subhash deposed that when Anil Ingle was last seen alive in the company of the appellant in the field, the appellant was wearing white shirt and white paijama. They went to the extent of identifying white shirt and white paijama (Art.6 & 7) which were seized during investigation and produced at the trial. However, all these Pws have not stated this material fact before the police when they were interrogated and their statements were recorded. The Pws did not offer any explanation for this material omission. This clearly shows that they tried to improve their version because as white shirt and white paijama were indicated by the police dog. As such no reliance can be placed on their testimony in this respect. 24. The corroboration is sought to be supplied in the nature of dog tracking evidence. About the evidentiary value of dog tracking evidence, the following principles have been laid down by the Supreme Court : (1) In Abdul Rajak Murtaja Dafedar vrs. State of Maharashtra, 1969 (2) SCC 234 , it is held that : .There are three objections which are usually advanced against the reception of the evidence of dog tracking. First since it is manifest that the dog cannot go into the box and give his evidence on oath and consequently submit himself to cross-examination, the dog's human companion must go into the box and report the dog's evidence and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And thirdly it is suggested that even if such evidence is strictly admissible under the rules of evidence, it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value.. (2) In Gade Lakshmi Mangaraju alias Ramesh .vrs. State of A.P. (2001) 6 SCC 205 , it is held that : .There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. State of A.P. (2001) 6 SCC 205 , it is held that : .There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Police dogs engage in these actions by virtue of instincts and also by the training imparted to them. Criminal courts need not bother much about such evidence based on sniffer dogs, although the investigating agency can employ such sniffer dogs for helping the investigation to track down criminals. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.. 25. In the present case, it is difficult to rely on the dog tracking evidence for the following reasons : (i) It has not been established that the pair of tyre chappals which was found near the dead body of Anil Ingle either belonged to the appellant or it was used by the appellant; (ii) After taking smell of the pair of chappals, the Dog pointed out blood stained shirt, paijama and sickle. However, no evidence has been collected by the investigating officer to establish that those clothes or the sickle either belonged to the appellant or they were used by the appellant; (iii) After taking smell of the shirt, paijama and sickle, the dog pointed out the house of the appellant. It has come in the evidence of PW 5 PC Ahir (Dog Handler) that whenever the trained dog recognizes the culprit, it would raise its front legs and place the same on the chest of the culprit and/or start barking. However, nothing of this sort happened in the present case though there is evidence suggesting that the appellant was present near the house. However, nothing of this sort happened in the present case though there is evidence suggesting that the appellant was present near the house. This clearly shows that the dog failed to trace the appellant to be the same person connected with the blood stained clothes and sickle; (iv) It has come in the evidence of PW 1 Dinkar s/o Atmaram Ingle that besides the appellant, the appellant's elder brother Gajanan and their father were living together in the said house. It is thus obvious that the house pointed out by the dog is not in exclusive occupation of the appellant. Hence the possibility of any inmate of the house other than the appellant having been involved in the murder of Anil Ingle cannot be ignored particularly when the dog failed to point out the appellant in the manner in which the dog is expected to do. 26. From all the above infirmities, it is difficult to accept the dog tracking evidence so as to connect the appellant with the murder of Anil. We find that the trial court has not considered these lacunas in proper perspective and arrived at a wrong conclusion. We are of the considered view that the chain of circumstances is not complete in the present case and as such the appellant is entitled for benefit of doubt. Hence, we pass the following order : O R D E R The appeal is allowed. The conviction and sentence of the appellant is set aside. He is acquitted of the offence punishable u/s 302 of IPC. His bail bond stands cancelled.