Bhagoji Dhumal & Ors Vs. State of Maharashtra  INSC 358 (15 November 1990)
L.M. (J) Sharma, L.M. (J) Ramaswamy, K.
1990 SCR Supl. (3) 68 1991 SCC Supl. (1) 385 JT 1990 (4) 409 1990 SCALE (2)994
Penal Code: Sections 34, 360 and 376---Prosecu- tion-Duty of--Lead reliable
evidence--Establish without reasonable doubt those guilty of offence.
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.
no. 8 is the son of accused no. 5, and accused no. 9 is a friend of accused no.
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.
medical evidence fully established that she was murdered by throttling and was
also victim of rape.
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.
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 169 of the Code of Criminal Procedure, 1973 for their dis- charge.
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.
separate appeals were filed, one by the State against the order of acquittal
and the other by the convict- ed accused no. 1.
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.
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
the appeal of appellant No. 1 and allowing the appeal of appellants Nos. 2 and
3, this Court,
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
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]
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]
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.
if it be assumed in his favour that the actual acts of rape and murder were
performed by his accomplices, he cannot escape the criminal liability. [81 A-D]
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,  ALJ 768 referred to.
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.
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.
therefore, are entitled to benefit of doubt. Their appeal is allowed and their
conviction and sentence set aside. [81E-G]