[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.1024 OF 2001 Barku Bhavrao Bhaskar, Age: 45 years, r/o Kakane, Tal. Kalwan, Dist: Nashik. .... Appellant - Versus - The State of Maharashtra .... Respondent Shri D.G. Khamkar, Advocate (appointed) for the Appellant/Accused. Shri A.M. Shringarpure, Addl. Public Prosecutor, for the Respondent. CORAM: CORAM: CORAM: N.V. Dabholkar & Smt.V.K. Tahilramani, JJ. Reserved on : 07 February, 2006 Pronounced on: 10 February, 2006 JUDGMENT (Per N.V.Dabholkar, J.): JUDGMENT (Per N.V.Dabholkar, J.): JUDGMENT (Per N.V.Dabholkar, J.): 1. The Judgment dated 13-8-2001 delivered by 3rd Addl. Sessions Judge, Nashik in Sessions Case No.49 of 2001, by which the present appellant is held guilty for offences punishable under Sections 364, 302 and 201 of the Indian Penal Code (IPC) is being challenged by the original accused, by this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. The appellant/accused is held guilty by the trial Court for kidnapping child Rekha @ Rakhi, daughter of Jibhau Chavan, aged about 6 years, committing her murder and trying to screen himself by concealing the dead body and [2] other things. He is sentenced to RI for 5 years, life imprisonment and RI for 3 years on the respective counts. The trial Court was pleased to impose fine and pass default sentence also on all three counts, although of different quantum. 2. The prosecution story, as can be gathered from the deposition of complainant Jibhau Chavan (PW-1 and father of the victim) as also depositions of PW-3 Ranjana Chavan, mother of the victim and couple of brothers of complainant Jibhau, PW-5 Raghunath Chavan and PW-8 Jagannath Chavan, can be briefly narrated as follows: Complainant Jibhau, his wife Ranjana and couple of daughters Poornima and Rekha @ Rakhi were the family members. The complainant used to undertake masonry work. The accused before the Court is distantly related to the complainant. He was working as a labourer, along with the complainant, some days prior to the alleged incident. On the date of the incident, the accused did not resume his work with the complainant. When the complainant returned home, one boy named Vasant informed him that his daughter Rakhi was missing. On enquiries with wife, upon reaching the residence, the complainant was informed that Rakhi was missing since about 11:30 a.m.. Because couple of days prior to the incident, the accused had suggested that he would take Rakhi to [3] village Kakane to meet grand-mother, the complainant enquired the whereabouts of the accused. Wife informed the complainant that the accused had visited their place at about 10:30 a.m. and he had also provided sugarcane to child Rakhi and the child enjoyed the same by sitting in the lap of the accused. The complainant, therefore, felt that the accused might have taken Rakhi to village Kakane to the house of her grand-mother. Neighbour Manohar Shinde took the responsibility, he accordingly visited village Kakane and on return, Manohar and Rajendra informed that the accused was not found at the place of grand-mother of missing child Rakhi. At about 6:30 p.m., the complainant along with one Dashrath Kashinath went to village Kakane. The accused and his mother were present in the house. Upon enquiries about missing child Rakhi, the accused was evasive. Hence the complainant returned home. It is claim of the complainant that on way return, a girl (child) Mohna informed him to have seen Rakhi going along with the accused. When this information was divulged by the complainant to his brother (PW-5 Raghunath), brother directed the complainant to go to Kakane again and bring the accused. The complainant along with one Balu (PW-4 Balvant) again went to village Kakane and brought the accused to his residence at Kalwan. [4] At this juncture, the accused is said to have made extra-judicial confession on an assurance that he will not be beaten by the family of the victim. The accused informed that about a fortnight ago, at village Bej, the complainant had abused him on account of some dispute regarding payment, he had grudge in his mind. Hence he took Rakhi to Patvihir area near the mountain and he killed her there. He also told that he had hidden the dead body under the stones. The witnesses took the accused to police station where the complainant recorded his complaint (Exhibit-11). Thereafter, the complainant, 7-8 other persons and policemen along with the accused went to Patvihir area by a police jeep and the accused is said to have shown the spot of incident. After removing the stones, dead body of Rakhi was recovered. Rakhi had sustained bleeding injuries to her head and ear and she was wearing her school uniform at that time. After investigation into the matter by recording appropriate panchnamas, statements of the witnesses, forwarding the seized articles to Forensic Science Laboratory and obtaining reports of analysis, chargesheet was filed in the Court of the J.M.F.C., Kalwan by investigating officer Shantaram Valvi (PW-9). The trial before the Sessions Court ended in conviction, [5] as narrated above. 3. The prosecution has relied upon the evidence of as many as 9 witnesses. This includes the complainant Jibhau (PW-1), his brother Raghunath (PW-5) and motorcycle rider Balvant (PW-4), a resident of the same locality. All of them claim to have heard the extra-judicial confession made by the accused. In addition, the complainant deposes about the discovery of the dead body at the instance of the accused. The evidence of PW-3 Ranjana (mother of the victim) and that of PW-7 Rajendra Aher, a petty vendor of toffees, is evidence pertaining to "last seen together". According to Ranjana, the accused had come to her residence at about 10:30 a.m.. He fed sugarcane to the child Rakhi. Ranjana was busy in washing clothes, etc., and when she completed her work, she found that the accused and Rakhi were not in the house. PW-7 Rajendra claims that at about 1:15 p.m. the accused had purchased toffee worth one rupee from his shop and at that time victim Rakhi was with the accused. PW-8 Jagannath, other brother of the complainant, is examined on the point of quarrel between the accused and the complainant on the point of dues of labour charges. His evidence reveals that the [6] complainant claimed some amount to be due from the accused because inspite of taking money, the accused was not attending the duties. PW-2 Shantaram Kumawat is a panch witness and he has witnessed discovery of the blood stained shirt of the accused, at the instance of information given by the accused under the memorandum and the panchnama (Exhibits-16 and 17). The shirt is said to have been discovered at a location on Khedgaon road, two furlongs away from village Nakode, it was kept hidden under a stone. API Shantaram Valvi (PW-9) had recorded the complaint of Jibhau (Exhibit-11) and he has also carried out investigation into the matter. 4. The defence of the accused is of total denial. Almost all the questions, during his statement under Section 313 of the Cr.P.C., are replied by stock answers "It is false" or "I do not know". The accused claimed that he is having some agricultural land which he is not ready to give to his nephew i.e. the complainant Jibhau and hence he has been implicated in a false case. The accused thus admits relationship with the complainant. He has also claimed that his thumb impression was taken on a blank paper, when he was questioned about the discovery of his blood stained shirt at the instance of the information given by him. Although he expressed his intention to examine Ashok as his defence witness, subsequently a pursis is filed at Exhibit-30 that he [7] does not wish to lead any defence evidence. 5. On reference to para 45 of the Judgment, it can be seen that for the reasons discussed, the trial Judge arrived at the conclusion that, in this case wherein there is no direct evidence, the prosecution has established the guilt of the accused beyond reasonable doubts by firm proof of five circumstances as follows: (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. By relying upon the post-mortem notes together with the deposition of the Medical Officer and the inquest panchnama, the learned Judge arrived at the conclusion that death is proved to be homicidal. It is [8] observed in paragraph 20 that, homicide is not disputed by the accused also, because it was suggested to the Medical Officer that someone else might have committed the murder of Rakhi. The evidence of Ranjana (PW-3) and Rajendra (PW-7) is believed to hold that victim Rakhi was last seen together with the accused and the accused has not offered any explanation as to when did he part with the company of the child. The evidence of the complainant Jibhau and his brother Jagannath is accepted as proof of motive, since they have narrated story of complainant having abused the accused for not having worked inspite of taking the payment. The evidence of extra-judicial confession, as rendered by the complainant, PW-4 Balvant and PW-5 Raghunath is found worthy of belief by the trial Court because, in the opinion of the trial Court, the discovery of dead body at the instance of the said extra-judicial confession and lead by the accused lends assurance of truthfulness to the confession. The discovery of the blood stained shirt, supported by the report of analysis, is also relied upon as a corroborative piece of evidence. 6. Heard Advocate Shri D.G. Khamkar for the appellant and Shri A.M. Shringarpure, A.P.P., for the respondent. [9] The case being based on circumstantial evidence, learned Advocate Shri Khamkar for the appellant has reminded us of the guidelines laid down by the Supreme Court in the matters based on circumstantial evidence and the nature and the standard of proof expected of the prosecution in such cases. It is settled legal position that, in the matters based on circumstantial evidence, the prosecution is required to firmly establish each and every circumstance by cogent evidence. All the circumstances together should form a complete chain between the crime and the culprit, leaving no other hypothesis possible except that of the guilt of the accused. Realising that the case is based on circumstantial evidence and the trial Court, as observed in Judgment paragraph 45, held that the five circumstances are firmly established with cogent evidence which link the accused to the guilt, learned Advocate for the appellant has assailed the said observation by submitting that none of those circumstances are established beyond reasonable doubt. He thus pleaded that the accused is certainly entitled to benefit of doubt. We shall deal with the challenge to the findings with each and every circumstances established while dealing with the reasons for our conclusions, instead of reproducing the arguments here [10] itself. 7. The learned Advocate for the appellant has desired us to draw an adverse inference against the prosecution for non-examination of certain individuals who are referred in the evidence of the witnesses already examined. One Ashok Bhaskar is referred by PW-7 Rajendra Aher. Rajendra is a witness on the point of the victim being last seen together in the company of the accused. According to Rajendra, Ashok had approached him for search of Rakhi at about 8:30 p.m. on the same day and upon enquiry he had informed Ashok that the accused and Rakhi had come to his shop to purchase sweets. No doubt, the prosecution has not examined Ashok to supplement the evidence of Rajendra. In his statement under Section 313 of the Cr.P.C. the accused expressed his desire to examine Ashok as a defence witness (Question No.11). However, subsequently by pursis (Exhibit-30), the defence side took a decision not to examine Ashok. We feel that if at all any adverse inference could have been drawn due to non-examination of Ashok by the prosecution, inspite of reference to him by PW-7 Rajendra, same stands nullified by this withdrawal of the defence from its decision to examine Ashok as a defence witness. Once Rajendra is examined, we find it needless to draw any adverse inference merely because Ashok was not examined. After [11] all, Ashok could have, at the most, supported the evidence of Rajendra to the extent of narration of Rajendra when Ashok had approached him in search of the missing child. When the main witness is examined by the prosecution and offered for cross-examination, no adverse inference need be drawn merely because the supporting witness is not examined. In the evidence of PW-1 Jibhau, there is reference to Manohar Shinde and Rajendra Thakre. According to the complainant, when he was about to start for village Kakane in order to find out whether the accused had taken the child to his place, Manohar volunteered and Manohar and Rajendra Thakre accordingly went to the place of the accused. They returned informing that the accused was not available at home. This was prior to 6:30 p.m.. We are unable appreciate as to why any adverse inference need be drawn against the prosecution for non-examination of witnesses who could not have thrown any light on the matter in question. Dashrath Kashinath is said to be the driver of the motorcycle by which the complainant went to the place of the accused and returned without the accused when the accused was evasive inspite of enquiries. The prosecution has not examined Dashrath. But Dashrath was [12] not going to render any other evidence than the fact deposed to, by the complainant. Non-examination of Dashrath is aimed only at avoiding duplication and calls for no adverse inference. The complainant has also referred that, when he returned home after unsuccessful enquiry with the accused, a child (girl) name Mohna informed him of having seen Rakhi with the accused. This Mohna was brought to be examined as a witness and reasons for failure to record her evidence are recorded by the learned Judge in paragraph 29 of the Judgment. It was evident that Mohna was not 9 years but was probably 6 years old, of the same age group as Rakhi and she did not open her mouth in the Court. Consequently, her evidence could not be recorded. The learned Advocate has gone to the extent of submitting that this is an attempt on the part of the prosecution to create false evidence. We are unable to agree with such an extreme inference and allowance must be made for a child of the age 5-6 years. It may speak freely in the domestic atmosphere and at the same time it may remain dumb-folded in the Court of law, being overawed by the atmosphere. By non-examination of Mohna, the prosecution has lost one more witness on the point of last seen together. We are unable to agree with the Advocate that the same was an attempt to create false [13] evidence. If that was so, the prosecution would not have tried to examine her by presenting Mohna before the Court. The complainant could have remained satisfied by saying that his wife informed about Rakhi and the accused missing since she returned after washing the clothes. Non-reference to Mohna could not have caused any subtraction from the merits of the prosecution case. Taking these aspects into account, we are not inclined to draw any adverse inference because the prosecution did not examine Mohna. 8. So far as death of Rakhi being homicidal, as rightly observed by the learned trial Judge in paragraphs 14 to 19, there is no much challenge. By relying upon the post-mortem notes (Exhibit-22), supported by the inquest panchnama (Exhibit-8) which was admitted in evidence because of no objection on the part of the defence and by taking into consideration the nature of the injuries as precisely described by the Medical Officer Dr. Priyanka (PW-6), there need remain no doubt about the death being homicidal. We may only refer to internal damage suffered by the victim instead of referring to five surface injuries, described in column No.17 of the post-mortem notes. From column No.18, it is evident there was fracture of mandible in the central part. Column No.19, which describes the internal injuries, shows haematoma on the left side under the scalp, [14] fracture of coronal suture line extending towards temporal and parietal parts on both the sides. There was also meningeal tear of temporal region right side and on parietal region left side. It is evident from the description of the injuries that head of the child victim was the main target for the assailant. Dr. Priyanka has recorded that death ensued due to shock due to cardio-respiratory arrest due to head injury. We do not find any hesitation to record a finding that the trial Court was justified in holding the death to be homicidal, especially in the absence of any serious challenge on the part of the defence. 9. Now we proceed to consider the challenge posed by the learned Advocate for the appellant to the circumstances relied upon by the prosecution and held proved by the trial Court, one by one. Referring to the discussions by the learned trial Judge in paragraphs 39 to 42 of the Judgment, learned Advocate for the appellant pointed out that although the prosecution claims that the shirt allegedly worn by the accused at the time of commission of the offence was discovered at his instance (memorandum and panchnama - Exhibits 16 and 17 respectively) and although the reports of the chemical analyser [15] (Exhibit-14) indicate that the victim was individual of blood group "A" and the shirt discovered at the instance of the accused was also stained with human blood of group "A", thereby suggesting the possibility that shirt of the accused is stained with the blood of the victim, the circumstance is not conclusively proved. This is because the blood group of the accused does not appear to have been determined. No doubt, the report of the analysis produced on record does not indicate that sample of the blood of the accused was sent for determination of group. In fact, sample of the blood of the deceased was also not sent and blood group of the deceased is determined on the basis of blood group of the stains on the clothes of the deceased. However, as rightly pointed out by the learned A.P.P. Shri Shringarpure, a reference to panchnama regarding the arrest of the accused rules out doubts, if any, and suggested possibility of blood stains on the shirt of the accused being of his own, in the absence of determination of his blood group. On reference to panchnama (Exhibit-7) regarding arrest, it is evident that the accused was examined by removing his clothes and there were no marks of violence on his person much less any bleeding injury. The arrest was technically effected on 4-12-2000 at 01:15 hours i.e. immediately after midnight between 3rd and 4th of December, 2000. We feel that absence of any injury on the person of the [16] accused is sufficient to rule out any possibility that stains of blood on the shirt of the accused could be of his own blood. Once the prosecution has brought on record that the victim is an individual with blood group "A" and that the shirt seized at the instance of the accused was stained with human blood of the same group, it was for the accused to explain this. Except saying "It is false", the accused has not offered any explanation to this situation in response to question Nos.33 to 35. We, therefore, feel that the trial Court committed no error in holding that the prosecution has established, by cogent evidence, the fact of shirt of the accused having stains of human blood and of the same group as that of the deceased, which situation is capable of leading to strong inference that the accused was the assailant. 10. Last seen together: Last seen together: Last seen together: PW-3 Ranjana (wife of the complainant and mother of the victim) as also PW-7 Rajendra Aher are the witnesses who claim to have seen the victim in company of the accused, whereafter the child Rakhi was not seen alive by anybody. According to the mother, the accused had come to her residence on the date of the incident at about 10:30 a.m.. He had [17] brought some sugarcane for the child. It is not in dispute that the accused was not only a labourer working under the complainant Jibhau but he is related to complainant Jibhau. The accused himself has referred Jibhau as his nephew. According to the complainant, the accused had even proposed to take the child to meet his mother at Kakane, because his mother happens to be the grand-mother of the child. According to Ranjana, when the child was eating sugarcane sitting in the lap of the accused, she engaged herself in the domestic work and by the time she returned after washing the clothes, she found that the accused and Rakhi were not in the house. The reasons for search not being on war-footing stand explained by the fact that the accused was a relative of the complainant, regular visitor and he had already proposed to take the child to meet his mother. The search assumed serious dimensions with the passage of time. PW-7 Rajendra Aher is a petty dealer. He does some ironing work and at the same time he also sells toffees and sweets. According to Rajendra, the accused accompanied by the child had come to his shop on 3-12-2000 at about 1:00 p.m.. They had departed after the accused purchased sweets worth one rupee for the child. Having gone through the cross-examination of Rajendra, the defence does not appear to have been able [18] to point out anything that will make him an unreliable witness. No doubt, he does not possess any licence under the Shops and Establishment Act. It may be taken note that he is a very petty vendor in a very small township. Even during cross-examination of Ranjana, there is no substance except all denied suggestion. This evidence of "last seen together" is desired by the learned Advocate for the appellant to be disbelieved by this Court because there is a large time gap between these two witnesses having seen the victim in company with the accused and the time of recovery of dead body at about midnight hours. No doubt, last seen together is a very strong circumstance that suggests the accused-companion being the killer of the victim by inference. Ordinarily, this last seen together evidence ought to be pertaining to a point of time as close as possible to the time of death but not to the time of discovery of the dead body. There may be cases wherein the accused persons may be in a position to keep the dead body concealed for a longer period or even if not concealed, the dead body may be found by others and police after a considerable time gap since the death. The evidence regarding last seen together must be nearest to the time of death and need not necessarily be nearest to the time of discovery. [19] Two witnesses have seen the victim at about 10:30 a.m. and 1:00 p.m. respectively, in company of the accused. The dead body is recovered at about midnight. There is reason to believe that child might have been killed some time earlier. The time gap of about 5-6 hours (from 1:00 p.m.) between death and last seen together is not such a large time gap that the witnesses can be looked with disbelief. We are inclined to go a step further. Even a large time gap between the point of time of last