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PETITIONER: RAVIKANT BHAGOJI DHUMAL AND ORS. ETC.

       Vs.

RESPONDENT: STATE OF  MAHARASHTRA

DATE OF JUDGMENT15/11/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) RAMASWAMY, K.

CITATION:  1990 SCR  Supl. (3)  68  1991 SCC  Supl.  (1) 385  JT 1990 (4)   409        1990 SCALE  (2)994

ACT:     Indian  Penal Code: Sections 34, 360 and  376---Prosecu- tion-Duty  of--Lead  reliable  evidence--Establish   without reasonable doubt those guilty of offence.

HEADNOTE:     A  young  woman of 29, Km. Chandrakala,  was  travelling from  Goa to Bombay. The bus stopped at about 9.15  p.m.  at Bharana Naka near the hotel belonging to accused no. 5,  for meals. Chandrakala along with the other passengers got down, and she proceeded towards certain structure near a tree  for attending  call of nature. It is alleged that while she  was in the posture of urinating near the structure, accused  no. 1  (appellant  no. 1), who was a waiter in the  hotel,  came from behind, lifted her and carried her away forcibly. It is said that accused no. 8 (appellant no. 2) and accused no.  9 (appellant  no. 3) also joined. This part of the  story  has been supported by three eye witnesses of tenser age.     Accused  no. 8 is the son of accused no. 5, and  accused no. 9 is a friend of accused no. 8.     The  dead  body of Chandrakala was discovered  the  next afternoon. From the evidence it appeared that the victim was deprived of her clothes which were available but not at  the appropriate place. Several gold ornaments were still on  her person. Her purse was also found which contained some money, and a chit of paper, described as suicide note.     The  medical  evidence fully established  that  she  was murdered by throttling and was also victim of rape.     Initially,  the  members  of the crew of  the  bus  were suspected  of being involved in the crime, and  the  Sub-In- spector,  Khed Police Station--Mr. Ghosalkar,  arrested  all the five members of its crew.     Controversy arose as to whether the police investigation was  proceeding  on the right lines or not.  Thereupon,  the Deputy inspector 69 General of Police passed an order for further  investigation to  be continued by another officer--Mr. M.V.  Kulkarni--be- longing  to the Criminal Investigation Department, Pune.  In the  course of investigation, it became clear  to  Detective Inspector  Kulkarni that the members of the crew of the  bus were  innocent. He accordingly sent a report  under  section

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169  of the Code of Criminal Procedure, 1973 for their  dis- charge.     After further investigations, nine persons including the present  appellants were put on trial for  offences  against various  sections  of the Indian Penal Code.  Eight  of  the accused  persons  were acquitted by the  trial  court  while accused  no. 1 was convicted for offences  punishable  under section 366 and section 376 read with section 34. I.P.C.  He was however acquitted of the murder charge.     Two  separate  appeals  were filed,  one  by  the  State against the order of acquittal and the other by the convict- ed accused no. 1.     The High Court maintained the conviction and sentence of accused  no. 1, and further convicted him under section  302 read  with section 34, I.P.C. The High Court also  convicted accused nos. 8 and 9 under section 366 and section 376, read with  section  34 I.P.C. They were further  convicted  under section  302  read with section 34 I.P.C. and  sentenced  to imprisonment for life.     Before  this Court it was inter alia contended that  the (i) the detective Inspector Kulkarni was interested both for his  personal  satisfaction and for the advancement  of  his career to obtain a conviction in the case, and the possibil- ity  of his procuring false evidence therefore could not  be ruled  out; and (ii) in view of the order in favour  of  the members of the crew, this case could not have been re-opened later,  as the order was judicial in nature and  closed  the case once for all.     Dismissing  the appeal of appellant No. 1  and  allowing the appeal of appellants Nos. 2 and 3, this Court,     HELD:  (1)  The High Court has rightly pointed  out  the evidence  and  the telling circumstances for coming  to  the conclusion that the investigation in the case, while it  was in the hands of Khed Police Station, was under the influence of  outside  agency and the policy  officers  were  directly associated  in attempting to procure false evidence  against innocent persons. [70E-F] 70     (2) Having considered the evidence and the circumstances in  the case, it is not permissible to presume that the  CID Inspector  Kulkarni could have fabricated false evidence  to implicate innocent persons as murderers in order to  satisfy his ego or to advance his future prospects in his career  in absence  of cogent material or acceptable circumstances,  to support  such presumption. The manner in which he  proceeded in  the case does not leave any room for doubt  against  his bona fides. [75H-76B]     (3)  It was manifest that the suicide note was a  forged document and was planted with a view to mislead the investi- gating  machinery.  It can safely be presumed that  it  must have been done either by the real culprit or somebody deeply interested  in shielding him from the process of law.  [75E; 78G]     (4) So far as the accused no. 1 is concerned, there does not appear to be any doubt that he caught hold of Chandraka- la  from  behind  and walked away in the  dark.  The  motive appears  to be apparent that she was forcibly  carried  away for  the  purpose of rape. The  Chemical  Analyser’s  report proves that the deceased was subjected to sexual intercourse and  the  facts that she was killed in the process  and  the accused  no.  1 got scratches on his face  caused  by  human nails,  along with the evidence of the eye witnesses,  fully establish that the accused no. 1 had committed rape on  her. Even if it be assumed in his favour that the actual acts  of rape and murder were performed by his accomplices, he cannot

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escape the criminal liability. [81 A-D]     (5) The order approving the report under section 169 Cr. P.C.  was  not an order of acquittal so as to bar  a  second trial. It was not even an order of discharge. [78D]     Pradyum  Narain Pandey v. State and Another, [1968]  ALJ 768 referred to.     (6) Theft could not have been the cause of her death  is amply  demonstrated  by the fact that the ornaments  on  her person were left behind by the criminals. [78H] (7) The case of the other two appellants is clearly  distin- guishable  from that of the appellant no. 1. P.W. 14 in  her evidence  did not claim to have identified either  of  them. She  stated that after she saw the appellant no. 1  catching hold  of Chandrakala from behind, she observed  two  persons moving  in that direction, but she did not claim  that  they were  appellants nos. 2 and 3. Even those  two  unidentified persons were seen 71 by  the  witness merely proceeding in  the  direction  where appellant  no.  1 had forcibly caught hold  of  Chandrakala. They  therefore,  are entitled to benefit  of  doubt.  Their appeal  is  allowed and their conviction  and  sentence  set aside. [81E-G]

JUDGMENT: