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Madhya Pradesh High Court · body

2009 DIGILAW 417 (MP)

MAHENDRA RAI v. LAXMAN PATEL

2009-04-01

K.S.CHAUHAN, RAKESH SAKSENA

body2009
Judgment ( 1. ) COMPLAINANT Mahendra Rai has filed this revision against the judgment dated 1st October, 2007 passed by the Additional sessions Judge, Damoh in Sessions Trial No. 30/2004, acquitting the non-applicants/accused of the charge under sections 364,365,342, 376 (2) (f) (g), 302 and 201 of the Indian Penal Code. ( 2. ) IN short, prosecution case is that complainant Mahendra rai lodged a missing report in respect of his six year old daughter mohani @ Mini on 25. 11. 2003. On 28. 11. 2003 at about 7:30 A. M. when Deepchand went at the well situated near his field, he saw dead body of a girl floating in the well. He informed the police Hata in that regard. A marg No. 74/2003 (Ex. P/1) was recorded. ( 3. ) WHEN Mahendra Rai was called to see the dead body of the child, he identified it to be of his daughter Mini @ Mohani. A golden cloth was tied around the neck of the girl, tongue was protruding out, her feet, knees and hands were tied. There were some abrasion marks on her face and neck. Dehati Naleshi Ex. P/27 was recorded at the spot. Sniffer-dogs were called from Damoh and sagar and after drawing the memorandum, dogs were made to smell the dead body. The dog of Damoh Police went towards the room in which the accused Laxman used to reside. The room was locked. Discerning the indication given by the dog, the room was got opened. Dog entered the room and touched and shuffled the bag and baggage kept inside the room. Thereafter the room was sealed. This dog was handled by constable Komal Singh (PW11 ). On the same day, another dog was brought from Sagar which was handled by constable Prakash Narayan Sharma (PW22 ). This dog was also given smell of the dead body. This dog too went to the room of accused laxman, which was already locked and sealed by the police. Again the lock was opened. Dog entered the room and tried to pull the bag and bedding kept inside the room. The bedding and the clothes kept in the bag were seized by the police. The activity of dog was recorded in memorandum Ex. P/14. ( 4. Again the lock was opened. Dog entered the room and tried to pull the bag and bedding kept inside the room. The bedding and the clothes kept in the bag were seized by the police. The activity of dog was recorded in memorandum Ex. P/14. ( 4. ) ACCUSED Laxman and Akhand Pratap were arrested and were put for identification by the dog handled by constable Komal Singh (PW11) at police station Hata. It is said that dog smelled and caught both the accused persons. ( 5. ) INVESTIGATING Officer Vinod Shrivastava (PW28) vide seizure memo Ex. P/15 seized bed sheet, cover of the quilt, handkerchief, shirt, underwear, pant, sota of tamarind and a red colour raksha sutra from the room of accused Laxman. ( 6. ) DEAD body of the deceased was sent for postmortem examination. Dr. R. K. Shrivastava (PW27) performed the postmortem examination. He found following injuries on the body:- (i) Abrasion 2. 5 x 2cm on left forehead. (ii) Lacerated wound 2. 5 x cm skin deep on eyebrow. (iii) Abrasion 2. 5 x 2cm on left side of chin. (iv) Abrasion 2 x 2cm on left shoulder. (v) A minute laceration in the area of fourchette. A yellow shining cloth was seen muffled around the neck, which was removed by him. A faint (ill defined)ligature mark was seen around the neck. In his opinion, the cause of death of deceased was asphyxia as a result of strangulation leading to cardio-respiratory failure within 48-72 hours of the commencement of the postmortem examination. In his opinion, the injuries found on the body were possible by some hard and blunt object and injury No. 5 was possible by sexual intercourse. Postmortem examination was performed in the presence of lady Dr. Smt. Alka Nikhar and dr. Kargaiya. ( 7. ) SEIZED articles and blood samples of the accused persons were sent to the Forensic Science Laboratory for chemical and serological examination. The results of examination of blood samples of accused persons, vide reports Ex. P/3 and P/4, were found inconclusive. However, on the bed sheet, cover of quilt and underwear, human blood stains were detected and they belonged to group "o". The blood group of deceased was also found to be "o". ( 8. ) AFTER investigation, charge sheet was filed and the case was committed for trial. P/3 and P/4, were found inconclusive. However, on the bed sheet, cover of quilt and underwear, human blood stains were detected and they belonged to group "o". The blood group of deceased was also found to be "o". ( 8. ) AFTER investigation, charge sheet was filed and the case was committed for trial. Trial Court held the evidence adduced by the prosecution insufficient to bring home the charge against the accused persons and acquitted them. Aggrieved by the impugned order of acquittal, complainant has filed this revision. ( 9. ) LEARNED counsel for the petitioner submitted that the trial Court mis-appreciated the evidence adduced by the prosecution in respect to dog tracking, the recovery of " Imli Ka Sota" and "raksha Sutra" belonging to the deceased and the clothes of accused which were found to contain the stains of blood of "o" group, which tallied with the blood group of the deceased. On medical examination of the accused persons, injuries were found on their bodies and on postmortem examination, a minor injury was found on the private part of the deceased. Semen was found present in vaginal smear of deceased. Girja (PW9) had seen the accused persons in the night near Murlimanohar Mandir. According to him, these circumstances were sufficient to bring home the charge against the accused persons yet the trial Court acquitted the accused persons ignoring them. ( 10. ) ON the other hand, learned counsel for the accused persons submitted that there was no direct evidence in the case and the case rested only on the circumstantial evidence. The circumstantial evidence adduced by the prosecution was not sufficient to establish the guilt of the accused persons. Trial Court after closely scrutinizing and evaluating the prosecution evidence came to the conclusion that the evidence on record was not sufficient to hold the accused guilty. The view taken by the trial Court cannot be held to be perverse, unjust or incorrect warranting interference in the judgment of acquittal passed by the trial Court, in the revisional jurisdiction invoked by the private party. ( 11. ) WE have heard the counsel of both the sides at length and have perused the evidence and material on record and have also examined the impugned judgment of acquittal passed by the trial court with the help of counsel of both the sides. ( 12. ( 11. ) WE have heard the counsel of both the sides at length and have perused the evidence and material on record and have also examined the impugned judgment of acquittal passed by the trial court with the help of counsel of both the sides. ( 12. ) BEFORE dilating upon the factual aspects of this case, it would be apt to examine the scope of revision filed by the private complainant against an order of acquittal. Apex Court in thankappan Nadar and others versus Gopala Krishnan and another (2002) 9 SCC 393 examined the ambit of the power of the high Court under section 401 of the Code of Criminal Procedure as under:-6. In a revision application filed by the de facto complainant against the acquittal order, the Courts jurisdiction under Section 397 read with Section 401 Crpc is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decisions rendered by this Court, In Akalu Ahir v. Ramdeo Ram this Court has (in SCC pp. 587-88, para 8)observed thus: "this Court, however, by way of illustration, indicating the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision: (i) Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused; (ii) Where the trial Court has wrongly shut out evidence which the prosecution wished to produce; (iii) Where the appellate court has wrongly held the evidence which was admitted by the trial Court to be inadmissible; (iv) Where the material evidence has been overlooked only (either) by the trial Court or by the appellate court; and (v) Where the acquittal is based on the compounding of the offence, which is invalid under the law. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High court can justifiably interfere with the order of acquittal. " The Court further observed : (SCC p. 588, para 10) "10. These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High court can justifiably interfere with the order of acquittal. " The Court further observed : (SCC p. 588, para 10) "10. No doubt, the appraisal of evidence by the trial judge in the case in hand is not perfect or free from flaw and a court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High court is entitled to reappraise the evidence for itself as if it is acting as a court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court. (emphasis added)In Vimal Singh vs. Khuman Singh this Court after 8. considering various decisions, observed as under: (SCC pp. 226-27, para 9)"9. Coming to the ambit of power of the High court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with (6)judgments of acquittal passed by the trial Court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial Court has no jurisdiction to try the case or where the trial Court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the high Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. Sub-section (3) of Section 401 mandates that the high Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. " 9. Same is the view taken by this Court in logendranath Jha v. Polai Lal Biswas, K. Chinnaswamy reddy v. State of A. P. , Mahendra Pratap Singh v. Sarju singh, Pakalapati Narayana Gajapathi Raju v. Bonapalli peda Appadu and Ayodhya Dube v. Ram Sumer Singh. " ( 13. ) IN the light of the above proposition on examining the evidence on record, we find that the trial Court disbelieved the evidence of dog handlers Komal Singh (PW11) and Prakash Narayan sharma (PW22) on the ground that their evidence was inconsistent and contradictory and besides that the evidence of sniffer dogs was not a circumstance compatible only with the hypothesis of guilt of the accused. ( 14. ) ON perusal of the evidence of Komal Singh (PW11), it is seen that after taking smell from the dead body of the deceased, his dog went to the room of accused Laxman. On the indication of dog, the lock of the room was broken. The dog shuffled the clothes and the bag kept inside the room. Thereafter, the room was locked and sealed. Prakash Narayan Sharma (PW22), another dog handler, is said to have brought another dog from Sagar. According to Prakash narayan, on 28. 11. 2003, again his dog was given smell of the dead body and the dog proceeded to the same room. Again the sealed lock was broken open. The dog again touched and shuffled the same articles. Memorandum in respect of the activities of the dog was prepared. According to Komal Singh (PW11) and investigating officer vinod Shrivastava (PW28), people did not believe the first dog tracking, therefore, another dog was called from Sagar. Komal singh stated that his dog was called on 28. 11. The dog again touched and shuffled the same articles. Memorandum in respect of the activities of the dog was prepared. According to Komal Singh (PW11) and investigating officer vinod Shrivastava (PW28), people did not believe the first dog tracking, therefore, another dog was called from Sagar. Komal singh stated that his dog was called on 28. 11. 2003 and another dog from Sagar was called on the next day. Contrary to it, dog master prakash Narayan (PW22) stated that he had brought his dog from sagar on the same day and had proceeded with the investigation. Thus, there is substantial and material contradiction between the evidence of two important witnesses. ( 15. ) ACCORDING to Komal Singh (PW11), he had stayed at police Station, Hata for whole of the day and when he had gone back, next day another dog had been brought from Sagar. He was again called with his dog. Thereafter his dog was made to perform its function and the dog brought from Sagar was also put in action. This witness then said that on the next day, only the dog brought from Sagar had done the work under the command of dog master prakash Narayan. Though the first dog was performing its function correctly but the public was not satisfied, therefore, another dog was called. The most important part of the evidence of Komal Singh (PW11), which affects the credibility of the evidence of dog tracking is his admission that he had received the requisition call on the night of 27. 11. 2003, therefore, he had reached police station Hata in the early morning of 28. 11. 2003 at about 7:00 A. M. whereas the marg intimation about the death of deceased itself was recorded at police station Hata at about 8:00 A. M. on 28. 11. 2003. It was not possible for Komal Singh, who was at Damoh, to reach Hata, situated about 40 kms away from Damoh, at 7:00 A. M. In these circumstances, the evidence of Komal Singh (PW11) in respect of dog tracking cannot be accepted. The evidence of Komal Singh militates against the evidence of Prakash Narayan (PW22), another dog handler, who stated that he had reached Hata from Sagar at about 2:30-3:00 P. M. on 28. 11. 2003. According to him, he did not find any other dog or dog master at Hata on 28. 11. 2003. The evidence of Komal Singh militates against the evidence of Prakash Narayan (PW22), another dog handler, who stated that he had reached Hata from Sagar at about 2:30-3:00 P. M. on 28. 11. 2003. According to him, he did not find any other dog or dog master at Hata on 28. 11. 2003. He did not know whether any investigation was performed by dog of police line Damoh. In these circumstances, we are of the opinion that the trial Court did not commit error in disbelieving the evidence of dog tracking and the consequent recoveries made on the basis of aforesaid dog tracking. Similarly the reluctance of the trial Court in accepting the evidence of the identification of the accused persons by the dog cannot be held to be incorrect or unjustified. ( 16. ) IN Gade Lakshmi Mangraju alias Ramesh vs. State of andhra Pradesh ( AIR 2001 SC 2677 ), apex court observed: "the evidence based on sniffer dogs has inherent frailties. The possibility of 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 mis-representation or a wrong inference from the behaviour of the dog could not be ruled out. The 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 engaged in these actions by virtue of instincts and also by the training imparted to them. Criminal Courts need not therefore bother much about the evidence based on sniffer dogs. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them. In Surinder Pal Jain vs. Delhi Administration ( AIR 1993 sc 1723 ), Supreme Court observed:-". . . . . . . . . . . . . . . . . . . thus the picking up of the smell by the dogs of police and pointing towards the accused could not be said to be circumstance which could exclude the possibility of guilt of any person other than that of the accused or be compatible only with hypothesis of guilt of the accused. . . . . . . . . . thus the picking up of the smell by the dogs of police and pointing towards the accused could not be said to be circumstance which could exclude the possibility of guilt of any person other than that of the accused or be compatible only with hypothesis of guilt of the accused. The pointing out by the dogs could as well lead to a misguided suspicion that the accused had committed the crime. " ( 17. ) RECOVERY of clothes of the accused from his room and matching of blood group of the stains found on the said clothes with that of the deceased cannot, in our opinion, in the circumstances of the case, be held to be a clinching incriminating circumstance, firstly on the ground that the seizure of clothes of the accused was not done under section 27 of the Evidence Act in consequence of the information of the accused. According to the evidence of investigating officer, when the first dog pointed out the room of the accused, its lock was broken and the dog handler and police people entered the room. The room was again locked and sealed. Thereafter, second time the sealed lock was broken and the second dog and police people again entered the room. Under these circumstances, trial Court was justified in holding that the recovery and seizure of the clothes of the accused as well as "imli Ka Sota" and "raksha Sutra" (a small colored thread) was not reliable. It is also on record that no report in respect of the blood sample of the accused persons could be obtained from the Forensic Science laboratory. Merely because the blood group of the stains found on the clothes seized from the room of the accused and the blood group of the stains found on the clothes of the deceased was common, it cannot be held conclusively that the accused were the perpetrators of the crime unless and until the possibility of the accuseds blood group being the same is not ruled out by the prosecution. The recovery and seizure of the articles from the possession of the accused person, since has not been proved by cogent and convincing evidence and is not free from suspicion, the evidence of matching of blood group is of no use. The recovery and seizure of the articles from the possession of the accused person, since has not been proved by cogent and convincing evidence and is not free from suspicion, the evidence of matching of blood group is of no use. The contention of the learned counsel for the complainant that the trial Court ignored the evidence of chemical examination reports, has no merit, because, the recovery of the articles from the possession of the accused had already been disbelieved by it. ( 18. ) THE medical evidence adduced by the prosecution in respect of injury found on the glans penis of accused Laxman, an abrasion found on little finger of accused Akhand Pratap Singh and a minor injury on the private part of the deceased do not create any incriminating circumstances against the accused. Dr. R. K. Shrivastava (PW27) found a minor lacerated wound near the private parts of the deceased. According to him, this injury was possible by sexual intercourse, but he admitted that he did not mention in his report that the hymen of the deceased was ruptured. If there had been any intercourse, the hymen would have certainly ruptured but they did not find it rupture. This injury could have been caused by fall or by a strike against any hard substance. Similar opinion was expressed by Dr. Smt. Alka Nikhar (PW29 ). ( 19. ) THOUGH the slide of vaginal swab prepared by Dr. Alka nikhar, on examination by Central Forensic Laboratory, was found to contain spermatozoa, but the same was not compared with the semen slides of accused Laxman and Akhand Pratap Singh as they were not considered for DNA examination and were returned as such without being examined. This evidence though may give an indication about the sexual assault on the deceased girl but it cannot be accepted as incriminating evidence against the accused. ( 20. ) EVIDENCE of Girja (PW9) that he saw accused persons at about 1 Oclock in the night of 17. 11. 2003 on the way near Murli manohar Mandir, in our opinion, is of no use as the deceased was found missing since 25. 11. 2003 and her dead body was found on 28. 11. 2003. By this evidence, no connection of accused persons is established with the alleged offence. 11. 2003 on the way near Murli manohar Mandir, in our opinion, is of no use as the deceased was found missing since 25. 11. 2003 and her dead body was found on 28. 11. 2003. By this evidence, no connection of accused persons is established with the alleged offence. In the case based on circumstantial evidence it is the cumulative result of all the circumstances, which matter, it is not possible to cull out one circumstance for the purpose of establishing the guilt of the accused. ( 21. ) IT is settled that 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; the fact 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. The circumstances should of a conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved; and 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. [geejaganda Somaiah vs. State of Karnataka ( AIR 2007 SC 1355 )]. ( 22. ) TAKING into consideration all the above circumstances, in the light of the law laid down by the Apex Court in the case of thankappan Nadar and others (supra), we find no procedural illegality or manifest error of law in the impugned order of acquittal passed by the trial Court. Though the learned trial judge did not appraise the evidence in respect of the chemical analysis report obtained from Central Forensic Science Laboratory but merely by that no prejudice was caused to the prosecution as the recovery and seizure of articles from the room of the accused person, at the instance of sniffer dogs, had already been disbelieved. Though the learned trial judge did not appraise the evidence in respect of the chemical analysis report obtained from Central Forensic Science Laboratory but merely by that no prejudice was caused to the prosecution as the recovery and seizure of articles from the room of the accused person, at the instance of sniffer dogs, had already been disbelieved. This Court is not expected to re-appreciate the entire evidence and to take a contrary view for setting aside the acquittal order in the exercise of the revisional jurisdiction invoked, at the instance of the complainant, in the absence of manifest error of law or procedure and in the absence of any glaring illegality which would have resulted in miscarriage of justice. ( 23. ) IN the result, this revision is dismissed.