Holding

The Supreme Court upheld the conviction of appellant No.1 under s.366, s.376 and s.302 read with s.34, but acquitted appellants No.2 and No.3, holding that the evidence did not establish their guilt beyond reasonable doubt.

Summary

A 29‑year‑old woman, Chandrakala, vanished near Bharana Naka while alighting from a bus and was later found dead, having been raped and throttled. The initial police investigation wrongly focused on the bus crew, but CID Inspector Kulkarni later implicated three accused – a hotel waiter (appellant No.1) and two young men (appellants No.2 and No.3) – for kidnapping, rape and murder. The trial court convicted only appellant No.1 for kidnapping and rape, acquitting him of murder; the High Court added murder convictions for all three under s.302 read with s.34. On appeal, the Supreme Court examined whether the earlier s.169 CrPC order barred a fresh trial, whether the CID investigation could be presumed to have fabricated evidence, and whether the evidence against each accused met the standard of proof beyond reasonable doubt. The Court held that the s.169 order was not an acquittal and that there was no basis to presume false evidence by the CID officer, but found the suicide note to be forged. It affirmed appellant No.1's conviction for kidnapping, rape and murder, while acquitting appellants No.2 and No.3 due to insufficient evidence.

Issues considered

The effect of the order under s.169 CrPC approving a report discharging the bus crew on the propriety of a subsequent trial of other accused.
Whether the CID Inspector Kulkarni's investigation could be presumed to have fabricated false evidence against the accused.
Whether the alleged suicide note was a forged document and its impact on the prosecution case.
Whether the evidence established beyond reasonable doubt the guilt of appellant No.1 for offences under s.366, s.376 and s.302 read with s.34.
Whether the evidence was sufficient to sustain convictions of appellants No.2 and No.3 under the same provisions.

Legislation cited

Code of Criminal Procedure, 1973s. 169
Indian Penal Code, 1860s. 302, s. 34, s. 366, s. 376

Subjects

rapekidnappingmurdersection 34section 366section 376section 302suicide noteforged documentfalse evidenceCID investigationbenefit of doubtcriminal liabilityappellate jurisdiction

Judgment

RAVIKANT BHAGOJI DHUMAL AND ORS. ETC.
A
v.
STATE OF MAHARASHTRA

NOVEMBER 15, 1990

B [LAUT MOHAN SHARMA AND K. RAMASWAMY, JJ.]

Indian Penal Code: Sections 34, 366 and 376-Prosecution-
Duty of-Lead reliable evidence-Establish without reasonable doubt
those guilty of offence.

c Goa toABombay.
young woman of 29, Km. Chandrakala, was travelling from
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
D (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 tender
age.
•
E 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 after-
noon. From the evidence it appeared that the victim was deprived of her
clothes which were available but not at the appropriate place. Several
F 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 folly established that she was murdered by
throttling and was also victim of rape.
G
Initially, the members of the crew of the bus were suspected of
being involved in the crime, and the Sub-Inspector, Khed Police
Statio-Mr. Ghosalkar, arrested all the five members of its crew.

H
Controversy arose as to whether the police investigation was
proceeding on the right lines or not. Thereupon, the Deputy Inspector ...
68
-
R.B. DHUMAL v. STATE OF MAHARASHTRA 69

General of Police passed an order for further investigation to be A
continued by another officer-Mr. M. V. Kulkarni-belonging to the
Criminal Investigation Department, Pnne. In the course of investiga-
tion, 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.
B

After further investigations, nine persons inclnding the present
appellants were put on trial for offences against varions 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 c
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 convicted accused no. 1.
D
The High Court maintained the conviction and sentence of accus-
sed 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 l.P.C. They were
further convicted nnder section 302 read with section 34 l.P .C. and
sentenced to imprisonment for life.
E
Before this Court it was inter alia contended that the (i) the detec-
tive Inspector Knlkarni was interested both for his personal satisfac-
tion and for the advancement of his career to obtain a conviction in the
case, and the possibility 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 F
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 G
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 offi-
cers were directly associated in attempting to procure false evidence
against innocent persons. [79E-F]
H
70 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

(2) Having considered the evidence and the circumstances in the ~-
A 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
B 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 investigating machinery. It
can safely be presumed that it must have been done either by the real

c
culprit or somebody deeply interested in shielding him from the process
of law. [75E; 78G]
-
(4) So far as the accused no. I is concerned, there does not appear
to be any doubt that he caught hold of Chandrakala 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
O 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. l got scratches on his face caused by human nails, along
with the evidence of the eye witnesses, fully establish that the accused
no. l had committed rape on her. Even if it be assumed in his favour
that the actnal acts of rape and murder were performed by his accomp-
E Iices, be cannot escape the criminal liability. [81A-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]

F 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]
G
(7) The case of the other two appellants is clearly distinguishable
from that oftbe appellant no. l. P.W. 14 in her evidence did not claim to
have identified either of them. She stated that after she saw the appel-
lant no. I catching hold of Chandrakala from behind, she observed two
persons moving in that direction, but she did not claim that they were
H appellants nos. 2 and 3. Even those two unidentified persons were seen
...
R.B. DHUMAL v. STATE OF MAHARASHTRA [SHARMA, J.] 71

by the witness merely proceeding in the direction where appellant no. I . A
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. [8 lE-G I

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals
No. 371·372 of 1978. B

From the Judgment and Order dated 10/11.8.1978 of the
Bombay High Court in Criminal Appeal No. 151/77 with Crl. A. No.
.• 226 of 1977 .

U.R. Lalit, S.B. Bhasme, V.N. Ganpule, Ms. Punam Kumari and
Ms. Suman Rastogi for the Appellants. C

V._N. Patil, A.S. Bhasme, V.B. Joshi and Subhash Keluskar for
the Respondent.

The Judgment of the Court was delivered by D

SHARMA, J. A young woman of 29, Km. Chandrakala Acchyut
Lotalikar, travelling from Goa to Bombay by a bus was found to have
been murdered following a sex assault. After the completion of the
police investigation, the present appellants along with six others were
put on trial for offences against various sections of the Indian Penal E
Code. Eight of the accused persons were acquitted by the trial court
and the appellant no. 1 was convicted for offences punishable und~r
s. 366 ands. 376 re'!d withs. 34 I.P.C. and sentenced to suffer rigorous
imprisonment for 7 years and 10 years respectively. He was acquitted of
the murder charge. Two appeals were filed-one by the State Govern-
ment against the orders of acquittal and another by the convicted F
accused no. 1, who is appellant no. 1 in Criminal Appeal No. 371 of
1978 and the sole appellant in Criminal Appeal No. 372 .of 1978 before
this Court. The two appeals were heard together and disposed by the
impugned judgment. The High Court has maintained the conviction
and sentence of the accused no. 1 (hereinafter referred to as the appel-
lant no. 1) and further convicted him under s. 302 read with s. 34 G
I.P.C. and sentenced him to imprisonment for life, and convicted accused
nos. 8 and 9, appellants no. 2 and 3 in Criminal Appeal No. 371of1978
before this Court, under s. 366 read with s. 34, and s. 376 read with
s. 34 l.P.C. and sentenced each of them to rigorous imprisonment for
seven years and ten years respectively under the two counts. They
have further been convicted under s. 302 read with s. 34 l.P.C. and H
72 SUPREME COURT REPORTS [ 1990) Supp. 3 S.C.R.

sentenced to imprisonment for life. In other words, all the three ac- ""·
A
cused have been awarded similar convictions and sentences. All the
sentences have been directed to run concurrently. lt is this judgment of
the High Court which has been impugned before this Court. Criminal
Appeal No. 371 of 1978 has been filed by the three accused persons,
while Criminal Appeal No. 372 of 1978 has been preferred by accused
B no. 1.

2. The deceased Chandrakala was on a visit to Goa where her
married sister was staying. On 8.10.1975 at about 11.30 a.m. she took
the tourist bus bearing No. GOT 2335 known by the name 'Mahalasa

c
Narayani' for Bombay where her brother Sadashiv Acchyut Lotalikar
(P.W. 9) lived. She was an unmarried girl and was undertaking the
overnight journey alone. Her sister's husband Putu Dattaram Raikar
(P. W. 6) saw her off at the bus station. On the way to Bombay the
-
tourist buses halt for sometime at convenient places to enable the
passengers and the members of the crew to have their lunch, dinner
etc. and get some respite. Accordingly the bus Mahalasa Narayani
D stopped for sometime at Sawantvadi for lunch and later at Bharana
Naka at about 9.15 p.m. After re-fuelling at a petrol pump, where
some passengers got down, the bus finally stopped near a restaurant by
the name of ·Visava Hotel' belonging to the accused no. 5, so that the
passengers could have their meals. According to the prosecution story,
Chandrakala along with the other passengers got down from the vehi-
E cle and went into Visava Hotel. Soon thereafter she was seen coming
out of the hotel and proceeding towards certain structure near a tree
for attending call of nature. It is further alleged that while she was in
the posture of urinating near the aforesaid structure the accused no. 1
came from behind and lifted her. He protested and started crying, but
was carried away forcibly. It is also said that the accused nos. 8 and 9
F also joined. This part of the story has been supported by three eye
witnesses of tender age, namely, Suman NanaAmbare, a girl of about
15 years (P.W. 14), Shrirang Vishnu Mohite P.W. 17 and Jagannath
Laxman Sigwan (P. W. 18) two lads aged about 12 years. At the time of
departure of the bus Mahalasa Narayani the conductor of the bus
Suresh Mahadev Dhuri (P.W. 12) discovered that Chandrakala was
G missing. After a futile attempt to find her the bus proceeded on its
journey to Bombay. P.W. 12 claims to have approached one of the
sons of the hotel owner accused no. 5 with a request that if Chandra-
kala was found out she might be sent by another bus to Bombay. Her
absence was also noticed by the other passengers in the bus.

H 3. The dead body of Chandrakala was discovered the next after-
R.B. DHUMAL v. STATE OF MAHARASHTRA (SHARMA, J.] 73

noon and the Police Patil Purushottam (P. W. 11) who was at Khed
A
about two miles from Bharana Naka, received a telephonic message
from accused no. 5 that the dead body of a woman was lying in the
paddy fields nearby. Purushottam immediately left for Bharana Naka
by his bicycle. The Khed Police Station was kept informed on tele-
phone and investigation followed. The first information report was
registered on the statement of the Police Patil (P.W. 11) stating that B
the dead body of a woman was found in a paddy field belong to the
accused no. 5.

.J. 4. Having regard to the facts and circumstances of the present
case, the manner in which the police investigation was conducted is of
great importance and has to be dealt with in some detail. Initially the C
members of the crew of the bus Mahalasa Narayani were suspected of
being involved in the crime. The police Head Constable Nana Kadam.
in absence of the Sub-Inspector Mahadeo Arjun Ghosalkar (P.W. 29)
who was on a tour took necessary steps for the inquest of the dead
body and a Panchnama Ext. 14 was prepared. The Panchas were Smt.
Chandrabhaga Bhiva Ghole (P.W. 2), another lady Parwati Bai and D
Sitaram P~tne, accu.sed no. 5. From the evidence it appears that the
victim was deprived of her clothes, which were available but not at the
appropriate places. Her petticoat was kept under her buttocks and the
under-wear, saree and blouse on the body. The Chappals also were
found a little away. Several gold ornaments were still on her person.
Some photographs were taken of the body and have been marked as E
exhibits in the case. A purse was also found with some money, few
articles of toilet, a bus ticket, and a chit of paper which has been
exhibited in the case as Ext. 25 and described as suicide note. The
statement on the chit which is in Marathi has been officially translated
thns:
F
"Being tired of life, I am co111mitting suicide. I have no
relative. Hence no enquiry should be made about me."

The dead body was sent for postmortem the same night which was
performed by Dr. Savak (P.W. 13) the next morning. The report as
also the evidence of the doctor indicate that the death was caused by G
throttling. By that time the identity of the deceased woman was not
known there, and the Head Constable stated in his statement (Ext. 85)
that an unknown woman who got down from the Goa-Bombay bus
GOT 2335 at Bharana Naka at about 9.30 p.m. on 8. 10.1975 leaving
.~ her baggage in the bus was found murdered by throttling. Along with
his statement he also sent the report of the Police Patil Ext. 38, the H
A
74 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

inquest Panchnama Ext. 14, the Panchnama of the discovery of the
dead body Ext. 20 and other relevant documents. All the witnesses
connected with the Panchnamas have been examined in the case.
-
5. After reaching Bombay, the conductor of the bus, Suresh
Mahadev Dhuri (P. W. 12), took charge of Chandrakala's baggage and
B carried the same with himself on his return trip to Goa with the inten-
tion of delivering it at Goa bus station, but on his way at about 10.30
p.m. the next day, when the bus reached Bharana Naka, he along with
the bag was taken to Khed Police Station where another Panchnama of
the contents of the bag (Ext. 18) was prepared. The bus conductor

c
indetified the dead body as that of the passenger travelling with him on
the Bombay bound bus. -
6. The Sub-Inspector attached to the Khed Police Station
Mahadev Arjun Ghosalkar (P.W 29) returned from tour at 8.40 p.m.
on 10.10.1975 and took charge of the investigation of the case. On that
very day after verifying the statements recorded by the Head Const-
D able Kadam and recording further statements of many witnesses he
interrogated accused no. I Ravikant Bhagoji Dhumal and found
scratch marks on his face. Ravikant was sent for medical examination
the next day to Dr. Savak (P. W. 13) The medical certificate of Dr.
Savak indicates that Ravikant had abrasions on his cheek and neck,
the detailed description whereof are mentioned in Ext. 48. According
E ·to the doctor, the in juries could have been caused by human finger
nails and the age of the injuries could have been 3-4 days. In the
meantine the identity of the victim girl was confirmed by her brother
Sadasiv (P.W. 9) and brother-in-law P.W. 6, whose statements were
recorded on reaching Khed. They denied the suicide note Ext. 25 as
being in the handwriting of the deceased Chandrakala. In the course of
F further investigation Sub-Inspector Ghosalkar arrested all the five
members of the crew of the bus Mahalasa Narayani including the bus
conductor Dhuri who was examined at the trial as the 12th witness for
the prosecution.

7. It appears that serious controversy arose as to whether the
G police investigation was proceeding on the right lines or not and the
Deputy Inspector General (CID) Police of the area concerned passed
an order on 14.11.1975 for further investigation to be continued by
another officer belonging to the Criminal Investigation Department,
Pune. Accordingly Police Inspector (CID) Crime, Pune, Madhusudan
Vishnu Kulkarni (P.W. 30) proceeded to Khed and took charge of the
H investigation from Sub-Inspector Ghosalkar (P.W. 29). He was
- R.B. DHUMAL v. STATE OF MAHARASHTRA [SHARMA, J.]

briefed by Ghosalkar before studying the relevant papers. Inspector
Kulkarni .further examined a large number of witnesses including the
eye witnesses P. Ws 14, 17 and 18. In answer to a letter of Inspector
75

A

Kulkarni,. Dr. Savak who had performed the post mortem examina-
tion, inter alia said in his reply dated 21. 11.1975 (Ext. 43) that he had
examined the private parts of the dead body also, although it was not
mentioned in the report and that from his notebook and his recollec- B
tion he could say that the deceased had been raped. This was cor-

--
roborated by the reports of the Chemical Examiner. When, in the
course of investigation, it became clear to the detective Inspector
Kulkarni that the members of the crew of the bus were innocent, he
sent a report under s. 169 of the Code of Criminal Procedure, 1973 for
their discharge. After examination of some more witnesses all the nine
accused were arrested on different dates and were ultimately charge- c
sheeted on 5.6.1976.

8. At the trial, besides examining the eye witnesses, the prosecu-
tion led full and complete evidence with respect to the other parts of
the prosecution case, namely, the identity of the victim girl, her D
journey to Bharana Naka, the discovery of her dead body in the paddy
field of the accused no. 5, the inquest, the post mortem and other
reports and other relevant formal matters. The brother and brother-in-
law of the deceased have proved that the sucide note Ext. 25 was not in
the handwriting of the girl and it was, therefore, manifest that it was a
forged document and was planted with a view to mislead the investiga- E
ti on 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. However, in absence of evidence to show
as to who did it, this factor has been rendered unhelpful except for
indicating that forces were working at Bharana Naka of which the
accused are residents. It cannot be and has not been suggested that the F
deceased's relatives, not belonging to the place, could have played any
role whatsoever in influencing the policy at Khed or helped to win over
any witness. No motive has been or can be suggested for falsely imp-
licating the appellants. The learned counsel for the appellants has,
however, contended that the evidence available to the police in the
first instance cannot be brushed aside and has to be taken into account G
while considering the evidence and the circumstances collected by the
CID detective coming from Pune and presented in Court. It is argued
that he was interested both for his personal satisfaction and for the
advancement of his career to obtain a conviction in the case, and the
possibility of his procuring false evidence .therefore cannot be ruled
out. Having considered the evidence and the circumstances in the H
76 SUPREME COURT REPORTS [ 1990) Supp. 3 S.C.R.

case, we are of the view that it is not permissible to presume that the
A CID Inspector Kulkarni could have fabricated false evidence to impli-
cate 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 circumstance to support such presumption. If he was
interested merely to secure the convict10n of any person, he could
B have very well proceeded on the line followed by Sub-Inspector
Ghosalkar. The manner in which he proceeded in the case does not
leave any room for doubt against his bona /ides. On taking over the
charge of the case on 15.11.1975, he visited the scene of occurrence,
and acquainted himself with all the facts and circumstances with the
help of the Sub-Inspector Ghosalkar. On 17.11.1975 he proceeded to
Goa where he interrogated a large number of persons including those
c who had travelled by the bus Mahalasa Narayani on the fateful day.
On returning back to Khed, he examined many more persons with a
view to unearth further relevant material. In the course of the pro-
ceeding, he was, of course, alert to pick up a new clue to the solution
of the crime, but was at the same time collecting all available materials
D with reference to the members of the crew of the bus, and had inter-
rogated them at considerable length by securing their police custody
remand for two days. By the first week of December 1975 he received
the Chemical Analyser's reports Exts. 45, 47, 48 and 49 negativing a
possible case of poisoning and indicating detection of sperrnatozoa in
the vaginal smeer collected from the dead body. This was consistent
E with the statement of Dr. Savak in Ext. 43. He did not stop there. The
detailed information available from the records of the case as to how
he went on a relentless pursuit to get at the truth by interrogating
scores of persons, examining innumerable materials and analysing all
possible circumstances summarised in the judgment of the High Court
which need not be repeated here, unmistakably point to a sincere and
F serious attempt on his part to unravel the mystery.

9. On the other hand, the conduct of the Khed police has been
dubious to say the least and in any event far from satisfactory. The
accused no. 5 owned a hotel in Bharna Naka and was otherwise also a
well to do person with a lot of local influence. Accused no. 8 is his son
G and accused no. 9 his son's friend. Both were young persons at the
time of the occurrence and so was the accused no. I, waiter in the
Hotel. On the basis of the evidence and circumstances available on the
records of the case and the analysis thereof as mentioned in paragraph
128 of the judgment the High Court was fully justified in expressing its
displeasure on the course of investigation undertaken by the Khed
H Police Station. The evidence later collected by the Inspector Kulkarni
R.B. DHUMAL v. STATE OF MAHARASHTRA [SHARMA. J.l 77

clearly indicates that the accused ·no. 1, 8 and 9 were under heavy
A
suspicion from the very beginning and the appellant no. 5 being father
of the appellant no. 8 must have been very worried about his son and
his associates. The scratch marks on the face of accused no. I had
already been taken note of. In this background we find that, instead of
pursuing the investigation on the right lines as indicated by the
evidence so far collected, attempt was made to falsely implicate the B
members of the crew of !he bus so as to divert the attention from the
right direction. Th,e evidence of Ramdas Yashvant Tambe (P.W. 20),

- Atmaram Babuji Chaudhary (P.W. 21) and Prabhakar Anant Maha-
jan (P.W. 22) is material in this regard. The presence of accused no. 5
taking interest in the matter from the very beginning ,is apparant from
the diary of Sub-Inspector Ghosalkar. Soon thereafter the association
of certain other persons including the father of the accused no. 9 c
comes to notice. P. W. 20 has stated that he had made the correct
statement to the Khed Police as to what he had actually seen on the
fateful day but several police officers (named by him) and the accused
no. 5, who was also present in the Police Station, attempted to
pursuade him to make false statement to suit their objective. Similar is I)
the statement of the other two witnesses P.Ws. 21 and 22. The mate-
rials available to the police did not leave any room for doubt that the
members of the crew of the bus had no hand whatsoever in the com'
mission of the gruesome crime and would undoubtedly be acquitted by
Court, if put on trial and still there was a concreted plan to rope them
in. It is not a case of anybody harbouring an ill-feeling against these E
persons which led to this conspiracy. The entire circumstances point to
the only conclusion that this was being done with the object of misdi-
recting the investigation away from the real culprits. The materials
have been discussed at some length by the High Court and without
repeating them we confirm its opinion on this aspect. In this back-
ground the Deputy Inspector General of the Crime Branch (CID), F
having been satisfied that the investigation was not proceeding on the
right lines, sent a reliable person to take over the matter and accord-
ingly Inspector Kulkarni came on the scene. The delay to trace the
criminals was, therefore, natural and we accept the finding of the High
Court that it has been satisfactorily explained and the defence cannot
be allowed to make out an excuse on that ground. G

10. This, however, does not conclude the case. The prosecution
has a duty to lead reliable evidence on the basis of which it can be held
that each of the accused was, without reasonable doubt, guilty of the
> offence charged with. The explanation offered by the prosecution for
the delay in bringing the evidence on the records of the investigation H
78 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

and taking steps against the accused although satisfactory cannot take
A
the place of substantive evidence on which the accused can be
convicted.

11. Before proceeding to consider the evidence led at the trial,
we may deal with a legal plea raised by the learned counsel for the
B appellants on the basis of s. 169 Criminal Procedure Code. As has
been mentioned earlier, the police submitted a report under s. 169 Cr ..
P. C. in favour of the members of the crew of the bus 'Mahalasa
Narayani' which was accepted by the Magistrate. It is contended that
in view of this order this case could not have been re-opened later, as
the order was judicial in nature and closed the case once for all. There
are more than one reason for rejecting this ground. The report which
c was accepted by the Magistrate exonerated only the other suspects and
not the accused persons who were ultimately put on trial. Further as it
was ~orrectly pointed out by the Allahabad High Court in Pradyum
Narain Pandey v. State and Another, [1968] AU 768, the order
approving the report under s. !69 Cr. P.C. was not an order of acquit-
D tal so as to bara second trial. It was not even an order of discharge. The
point urged, therefore, has no substance and is rejected.

12. The facts that Chandrakala was travelling in the bus
Mahalasa Narayani on the journey from Goa to Bombay, she got down
from the vehicle at Bharana Naka near Visava Hotel, and did not
E board it when it started on its onward journey to Bombay with her
luggage have been proved by the evidence of many witnesses including
the bus conductor (P.W. 21) and has not been challenged before us by
the learned counsel for the appellants. It has further been conclusively
established that her dead body was discovered in a paddy field belong-
ing to the accused no. 5 at a short distance from the Visava Hotel, and
F that she had died of an unnatural death. The medical evidence fully
establishes that she was murdered and was also victim of rape. She was
a young woman travelling without a companion, and was thus vulner-
able to the evil designs of men of low morals and high sexual urge.
From the evidence of her brother and brother-in-law it becomes clear
that she did not have any enemy who could have been interested in
G killing her. Theory of suicide introduced during the investigation has
been fully exploded and it has been firmly established that somebody
placed a suicide note near her dead body with a view to misdirect the
investigation, which was successful to a degree at the initial stage.
Theft could not have been the cause of her death is amply demon-
I
strated by the fact that the ornaments on her person were left behind
H by the criminal.
R.B. DHUMAL v. STATE OF MAHARASHTRA [SHARMA, J.I 79

13. The buses used to stop at Bharana Naka for about 45 mi-
A
nuies to enable the passengers and the members of the crew to have
their evening meals. So far the members of the view were concerned,
they had to spend about 15 minutes in refuelling the bus. The passen-
gers got their dinner at the hotels and on the fateful day those who
were travelling by Mahalasa Narayani bus went to Visava Hotel. The
evidence also indicates that when Chandrakala did not return to the B
bus, which had to leave for Bombay without her, her absence was
noticed but the crew could not have detained the bus indefinitely as
the other passengers had to proceed to Bombay. There were 2-3 other
similarly looking buses halting at Bharana Naka before proceeding to
their respective destinations and the possibility that she might have
boarded a wrong bus was considered. In any view, the conduct of the
members of the crew could not be treated with suspicion for having
c
proceeded on their journey without waiting further. The High Court
has taken all these in consideration and has further analysed the other
evidence indicating that there was no room for entertaining any suspi-
cion against the members of the crew and it should have been apparent
to any person, more so to the local police, that they were entirely D
innocent. In this background the police investigation was pursued in a
completely wrong direction and without taking care to either (i) fix the
place of occurrence, or (ii) to use the dog squad, or (iii) to proceed
further with the investigation against the accused no. 1 found with
scratches on his face, or (iv) to disassociate the accused no. 5, father of
the accused no. 8 and the owner of the hotel where the accused no. 1 E
was working as a bearer from the investigative process. The High
Court has rightly pointed out the evidence and the telling circum-
stances for coming to the conclusion that the investigation in the case,
while it was in the hands of Khed Police Station, was under the influ-
ence of outside agency and the police officers were directly associated
in attempting to procure false evidence against innocent persons. In F
this background the evidence of the three eye witnesses has to be
scrutinised.

14. Let us first take up the testimony of Suman (P. W. 14). At
the time of the crime she was about 15 years old. She was a resident of
village Kudavashiv about 2 miles from Bharana Naka and was a G
domestic servant working for another hotel called Satkar next to
Visava Hotel. Her elder sister Vasanti (P.W. 16) was serving in
another local hotel and the two sisters were coming from the village
together. They had an old acquaintance with a Panchal family of
-; Bharana Naka who had their house behind Poonam Hotel in the
neighbourhood. The Panchals were celeberating Navratra by arrang- H
A
80 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

ing a dance programme and Suman (P. W. 14) and Vasanti (P.W. 16)
were staying with them during the night of 8. 10.1975. This was not the
--
first occasion for them to stay with the Panchal family at Bharana
Naka, they were welcome on earlier occasions also. This time, how-
ever, the younger brother aged about 5 named Eknath was also in the
company of the two sisters. Suman has explained her relationship with
B the Panchal family and specially the lady of the family Malati Panchal
and has given the details when she stayed out with them in the past. On
the 8th October she had gone to Visava Hotel at about 9 in the evening
and had the occasion to observe Chandrakala, wearing a black blouse,
from a close distance. Her movements, if examined with her entire
deposition, must be held to be natural and not at all strange. After
leaving Visava Hotel the witness went to the betel shop of Ram Bhau
C Patne (P. W. IO) to purchase Pan Supari for her sister. This shop is
adjacent to the Hotel. From there she saw the woman with black
blouse she had earlier observed in the Visava Hotel, that is
-
Chandrakala, proceeding towards the left side of the road. Accused
.- ~-":. no. 1, Ravikant followed her and then she heard a sound of protest
-.;"-.: .p with the words "Aai-ga". She saw the lady in urinating posture when
'-,°\,,the accused no. 1 caught hold of her from the hack. She also saw two
..'·i"'-l~~er persons going in that direction. She claims to have reported this
'!, ,-·er to her sister Vasanti (P.W. 16) and Malati Panchal (P.W. 25).
She was questioned at considerable length and has stood the cross-
examination very satisfactorily. Since her evidence has been discussed
E at considerable length in the impugned judgment, we do not consider
it necessary to repeat the same. We agree with the High Court for
accepting her as a truthful person. Her evidence has been corrobo-
rated by the other prosecution witnesses.

15. The other two eye witnesses Shrirang (P.W. 17) and Jagan-
F oath (P.W. 18), were about 12 years of age at the time of the occur-
rence. The trial judge was mindful of the fact that the witnesses were
of tender age and accordingly took all necessary precautions which
were expected to be taken before recording their statements in the
form of questions and answers. Both of them were engaged in selling
sodawater on commission basis and by their answers to the searching
G questions put to them in their gruelling cross-examination they demon-
strated that although young in age and not en joying any special status
they are dependable witnesses with respect for truth. The pressure
which was exerted on them during the course of the investigation to
win them over in the interest of the accused persons and their reaction
I
have been discussed by the High Court in great length and we agree
H that the two boys cannot be rejected as liars.
. R.B. DHUMAL v. STATE OF MAHARASHTRA [SHARMA. J.] 81

16. In view. of the very exhaustive discussion by the High Court
A
of.the evidence of all the three eye witnessec, we do not consider it
. necessary to detail them again. So far as the accused no. 1 is con-
cerned, there does not appear io be any doubt that he caught hold of
Chandrakala from behind and walkea away in the dark. The scratch
marks on his face noted by the Sub-Inspector Ghosalkar at the very
initial stage of the investigation were, in view of the medical evidence, B
likely to have been caused by the deceased in an attempt to resist his
advances and furnish circumstantial support to the case against him.
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 subject 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, c
fully establish that the accused no. 1 had committed rape on her. The
accused having caught hold of the victim from behind was not likely to
get his face scratched at that stage. He must have got the injury when
he was facing the lady. Even if it be assumed in his favour that the
actual acts of rape and murder were performed by his accomplices, he D
cannot escape the criminal liability. Accordingly, we agree with the
findings of the High Court recorded against him (the appellant no. 1).

17. So far the other two appellants are concerned, the position is
a little different.. The evidence in the case creates serious suspicion
- against them but falls short of establishing beyond reasonable doubt E
the offences with which they have been charged. Suman (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 Ravikant catching hold of
Chandrakala from behind, she observed two persons moving in that
direction but did not claim that they were appellants no. 2 and 3. Even
those two unidentified persons were seen by the witness merely pro- F
ceeding in the direction where the appellant no. 1 had forcibly caught
hold of Chandrakala. Jagannath (P.W. 18) identified them as appel-
lant no. 2 and 3 but said that they did not help the appellant no. 1 in
lifting and carrying away Chandrakala. Their case is, therefore, clearly
distinguishable from that of the appellant no. 1 against whom the
consistent evidence of all the three witnesses proved that he had ford- G
bly carried off the victim girl. His face also had received scratches as
discovered by the Sub-Inspector at the very 1earliest. That is not the
position with respect to the other two appellants who are entitled to
benefit of doubt. We, therefore, set aside their conviction and
sentence and allow Criminal Appeal No. 371 of 1978 so far they are
concerned. This, however, does not mean that the appellant no. 1 was H
82 SUPREME COURT REPORTS I 1990] Supp. 3 S.C.R.
A acting single handed in the commission of the crime.

18. In the result, the appeals of the appellant no. 1 are dismissed
and his conviction under s. 366 read with s. 34, s. 376 read with s. 34
ands. 302 read withs. 34 I.P.C. and sentence as directed by the High
Court are confirmed. The appellants no. 2 and 3 are given benefit of
B
doubt and are acquitted and tl)e Criminal Appeal No. 371of1978, so
far as they are concerned, is allowe,·.

R.S.S. CA 372/78-dismissed
CA 311/78 allowed in respect of
appellant 2 and 3 only