State Of Maharashtra, Through ... vs Rajendra S/O Ganji Moon And Ors.
2005 Latest Caselaw 819 Bom

JUDGMENT

P.S. Brahme, J.

Page 1584

1. Heard learned APP for the appellant-State and learned Counsel for the respondents. Perused the records.

2. This appeal is directed against the judgment and order of acquittal passed by the Additional Sessions Judge, Wardha in Sessions Trial No. 75/1985 decided on 19.11.1993 acquitting the accused/respondents of the offence punishable under Section 302 read with 34 of the Indian Penal Code.

3. The prosecution case, in brief, may be stated as follows :

Deceased Dharmpal was son of Kalawati (PW 4) and brother of Dinbandhu (PW 3). All accused persons are residents of village Wadgaon (Dixit) where deceased Dharmpal, his parents and brothers were residing. It is the case of the prosecution that the accused persons entertained suspicion that witness Kalawati was practicing black magic Page 1585 on women members of their family and as a consequence of that the relations between two families were strained. The incident took place on 8.3.1985 in front of the house of deceased Dharmpal, wherein the accused persons told him that his mother had played black magic. However the reaction of deceased Dharmpal was that he protested the allegations and then as per the prosecution case, accused Nos. 2 to 7, who gathered there, caught hold deceased Dharmpal while accused No. 1 Rajendra, who brought Gupti from his house, stabbed deceased Dharmpal inflicting injuries on his back, as a result of which, Dharmpal died on the spot. Witness Ishwar Moon (PW 1), who happened to be Police Patil of the village while returning to his house at about 9.00 p.m. noticed dead body of Dharmpal lying in front of his house and his family members were sitting by the side of the dead body and on enquiry being made he was informed about the incident of assault on deceased Dharmpal, went to Police Station, Girad and lodged report (Exh.44). On the basis of which offence was registered as Crime No. 30/1985. The investigation was carried out and after completing the investigation chargesheet came to be filed against the respondents in the Court of the Judicial Magistrate, First Class, Hinganghat and the learned Judicial Magistrate, First Class, Hinganghat committed the case to the Court of Sessions at Wardha.

4. Before the learned Sessions Judge, to substantiate the charge for the offence punishable under Section 302 read with 34 of the Indian Penal Code, the prosecution examined in all eight witnesses including complainant Ishwar Moon (PW 1), Dinbandhu (PW 3), Kalawati (PW 4), Dr. Namdeo Raut (PW 5), who examined witness Dinbandhu for injuries suffered by him, as described in the certificate (Exh.55), Maroti Moon (PW 6), who gave eyewitness account and PW 8 Narayan Thakre, Police Head Constable, who carried out further investigation in the matter. The defence of the accused was of denial, it was contention of accused Rajendra that he suffered injuries at the time of the incident when he attempted to snatch sharp edged weapon. To substantiate that fact defence examined Dr. Krishna Raut (DW 1), who gave certificate (Exh.77) in respect of the injuries which were noticed on the person of accused Rajendra. The Medical Officer carried out a autopsy on the dead body of victim Dharmpal and prepared post mortem report (Exh.45). In this report in column No. 17 external injuries i.e. (1) incised wound on right side of back 3" lateral to 8" dorsal space. 1-1/2" x 1/2 x 2-1/4" with blood directed interiorly, towards, on cutting the right side illegible cavity, Pleural and pupil the right lob posterior surface of frival 1-1/2" x 1/2" x 3/4" with Blood in pluaral cavity and (2) Incised wound on right of chest. Below madial third of right 3/4" x 1/6" x 1 directed down words and medially and causing on right side with conjestion and blood, have been noticed. In the opinion of Medical Officer, the cause of death was shock as a result of injury to chest wall and haemorrhage. The defence has not disputed the factum of injuries suffered by the victim so also the cause of death as opined by the Medical Officer in the post mortem report (Exh.45). It is in this sense that the post mortem report (Exh.45) has been admitted by the defence. The trial court, after appreciation of evidence oral as well as documentary, reached to the conclusion that the prosecution Page 1586 has utterly failed to prove and establish beyond doubt that the factum was done to death by the respondents/accused. The trial court found that the evidence, particularly of witnesses who claimed to have witnessed the incident, is not trustworthy on account of various contradictions and omissions brought in their evidence. Consequently the trial Court acquitted the accused. Hence this appeal.

5. At the outset, it is crystal dear that the prosecution case is based on direct evidence of witnesses Dinbandhu (PW 3) and that of Kalawati (PW 4) and witness Maroti (PW 6), who also claimed to have witnessed the incident. In addition to this, there was other evidence in the nature of recovery of weapon at the instance of accused Rajendra as also finding of blood stains on the clothes of accused No. 1 Rajendra and accused No. 6 Nana. However, as the record shows the factum of recovery of weapon at the instance of accused Rajendra, is not proved. That apart if we considered entire evidence including eyewitness account by the witnesses so also the report (Exh.44) and the situation that prevailed at the place of occurrence as depicted in the spot panchanama (Exh.61), some sharp edged weapons have been found at the place of occurrence. When the evidence is scrutinized by us, it is found that there is glaring disparity as to the weapon which was with accused Rajendra. As a consequence of this, the evidence as to recovery of weapon at the instance of accused Rajendra has been rightly discarded by the trial court. In this context, it is also pertinent to note that the prosecution could not examine the Police Officer before whom alleged confessional statement as to production of the weapon was made by accused Rajendra. The independent witness, who acted as panch for alleged recovery and disclosure made by accused Rajendra, has not supported the prosecution. As regards the finding of blood on the clothes of accused Rajendra vis-a-vis the report of Chemical Analyser in respect of the blood of the deceased and the blood found on the clothes of the accused persons, it is found to be not conclusive and, therefore, that evidence is also not available to the prosecution.

6. It is in this context that the reliance by the prosecution was mainly on the evidence of witness Kalawati and Dinbandhu. In this connection, the learned APP submitted that the trial court has committed an error in appreciation of evidence of both the witnesses and that the finding of acquittal of the respondents suffers from non appreciation of evidence, mis-appreciation of evidence and mis-appreciation of law. It is submitted that when presence of witness Kalawati and Dinbandhu at the place of occurrence is not disputed, there was absolutely no reason for not accepting their evidence when they have given eyewitness account of the incident. Both the witnesses have identified the accused persons as the assailants of the victim. So far as the witness Dinbandhu is concerned, the learned APP submitted with emphasis that the very fact that this witness had suffered injuries on his person is itself a guarantee to his being present at the time of assault and that itself lends assurance to his claim as to have witnessed the incident in which as stated by the witnesses the victim was assaulted by the accused persons. It is submitted vehemently by learned APP that the trial court has given much importance Page 1587 to the omissions and contradictions which were brought on record when the witnesses were cross examined by defence. In this context, it is submitted that the omissions on which the trial court has also placed reliance have nor been duly proved inasmuch as no question was put to the Investigating Officer in that regard. That apart, the learned APP pointed out that if we go through the statements of witnesses recorded by the Investigating Officer, in fact, the witnesses have stated about the facts in respect of which omissions have been brought on record in cross examination of those witnesses. It is submitted that the evidence on record particularly of both the eyewitnesses is consistent and what has been stated by these two witnesses as regards the assault on the victim stands corroborated by what has been reported to the Police by the Police Patil in his report (Exh.44). Therefore, learned APP submitted with emphasis that it is a case of non application of mind as also mis-appreciation of evidence by the trial court which has resulted in perverse finding of acquittal by the trial court.

7. As against that Mr. A.C. Dharmadhikari, learned Counsel for the respondents, having taken us through the evidence of material witnesses as also the reasoning adopted by the trial court while pointing out their evidence, submitted that the trial court has rightly appreciated the evidence in correct perspective. That, the evidence of both these witnesses if read as a whole, depict a picture as to the happening of the incident which is directly at variance with what has been reported by the Police Patil in his report (Exh.44). In that, one glaring fact has been pointed out by the learned Counsel for the respondent that though witnesses have stated about the participation of accused No. 7 at the time of incident, in the report (Exh.45) conspicuously his name is absent. He further pointed out that this accused No. 7 Baba as also accused No. 4 Parmeshwar and accused No. 2 Mahadeo were not resident of village Wadgaon (Dixit) at the time when the incident took place. The trial court, taking into consideration this aspect, has come to the conclusion that the presence of these accused persons at the time of place of occurrence is not at all probable. The fact that the name of accused No. 7 is not mentioned in the report (Exh.44) lends assurance to the claim of accused No. 7 that he was not residing at village Wadgaon (Dixit) at the time and place when the incident took place. That apart, the learned Counsel pointed out that the manner in which incident has taken place as has been stated by witnesses Dinbandhu and Kalawati is totally at variance with what has been reflected in the report (Exh.44).

8. In that context, it was pointed out that as per the evidence given by the witnesses initially there was quarrel by accused persons with women of the family of witness Dinbandhu including witness Kalawati preceding the incident of assault on the victim but as has been narrated in the report (Exh.44) the incident started when deceased Dharmpal was standing in the courtyard when accused Mahadeo rushed there from his house and delivered a blow of Bichawa on his person and, thereafter, she gave a call to Rajendra Moon and in response to that call when Rajendra rushed there, he delivered a knife blow and then accused persons also rushed Page 1588 there. In the meanwhile, Dharmpal fell down on the ground and died on the spot. As against that the evidence of both the witnesses before the trial court shows that all the accused persons participated in the assault on the victim. Even a theory has been brought that die victim was assaulted with sticks. It was referred in the evidence by these witnesses that deceased was assaulted with sharp edged weapon which were, according to them, three in number. However, the medical evidence in respect of the injuries suffered by the victim which we have referred in the earlier part of judgment goes to show that there were only two incise wounds. If really the victim bad been assaulted with sticks, in all probability some sort of injuries i.e. contusion and appreciation must have been suffered by the victim. As such the learned Counsel for the respondent, pointing out this disparity as to the injuries suffered by the victim, submitted with emphasis that the trial court was, therefore, justified in discarding the evidence of both the witnesses though both of them have claimed to have witnessed the incident. In this context, the learned Counsel for the respondents, therefore, submitted that in the facts and circumstances of the case, it has to be said that the view taken by the trial court in acquitting the accused is reasonable and probable and, therefore, if the appellate court, even if comes to a conclusion that other view is also possible, the appellate court cannot interfere with the evidence of acquittal when the view taken by the trial court is reasonable.

9. In the light of submissions of learned APP as well as learned Counsel for the respondents, we have independently scrutinized the evidence of the witnesses. Apart from the contradictions and omissions which were highlighted by the trial court in the judgment on which the emphasis is given, what we have found on consideration both of these witnesses that their evidence does not inspire confidence though we do not dispute their presence at the place of occurrence. In the first place in respect of the incident that has taken place matter was reported to the Police on the next day morning by witness Ishwar Moon, who was Police Patil, by his report (Exh.44). We have already referred to what has been narrated in the report about the incident of assault. The first thing that appears to be glaring making the report itself suspicious is that of absence of name of accused No. 7. That apart in that report no role is attributed specifically to any of the accused. The report is in a general manner and as could be seen from the report the first person to arrive at the occurrence amongst the accused persons was accused Mahadeo who is alleged to have assaulted the victim with a dagger on his person and after he gave call, accused Rajendra came there and delivered a blow of knife and then rest of the accused persons rushed there. It is, therefore, surprising to note that the report is silent as to what rest of the accused persons did when they reached to the place of occurrence. But as against that the witnesses, who claimed to have witnessed the incident, have audacity to say before the court that all the accused persons participated in the assault on the victim including accused No. 7 whose name, as stated above, did not figure in the report much less any act or overt act being committed by him. There is no explanation either by both the witnesses or by the prosecution as regards the disparity as to happening of the incident.

Page 1589

10. Even the narration of the incident by the witnesses before the Court is materially at variance with what has been stated in the report (Exh.44). Both the witnesses have been subjected to cross examine by defence and as could be seen from the replies given by both the witnesses. It is revealed mat both the witnesses have made other statement and simply exaggerated the matter attributing some sort of acts of assault to rest of the accused persons. However the difficulty in accepting their version is the medical evidence on record. As stated earlier only two incise wounds have been found on the person of the victim. As against that the allegations as claimed by both the witnesses Dinbandhu and Kalawati in their evidence are that the victim came to be assaulted with three sharp edged weapons and sticks inflicting injuries on the person of the victim. This claim of these witnesses is obviously not only contrary and at variance but also with the medical evidence on record but at the same time it does not stand probable when in me evidence on record participation of all the accused in assault on the victim is not at all borne out. It is in this sense that the trial court has after marshaling the evidence reached to a finding that the prosecution has failed to prove that the victim came to be assaulted and was done to death by the accused persons. In our opinion, on appreciation of evidence independently, as has been done by us, we do not find that a view taken by the trial court is erroneous or perverse. On the other hand, in our considered opinion, the view taken by the trial court is quite reasonable and possible in the weight of evidence i.e. on record.

11. The legal position as also the principles of law pertaining to interference with the order of acquittal are now well settled. Those principles are considered by this Court in a judgment reported in 2003 Criminal Law Journal 2106. Before referring to the recent decisions of the Supreme Court, we would like to refer two decisions of the Apex Court in AIR 1979 Supreme Court 135 - Ganesh Bhavan Patel and Anr. v. State of Maharashtra. The Apex Court has observed as under:

"Although in an appeal from an order of acquittal the powers of the High Court to reassess the evidence and reach its own conclusions are as extensive as in an appeal against an order of conviction, yet, as a rule of prudence, it should "always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."

12. The Apex Court further observed that where two reasonable conclusions can be drawn on the evidence on record, the High Court should as a matter of judicial caution, refrain from interfering with the order of acquittal recorded Page 1590 by the Court below. In other words, if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.

13. We may refer to recent decision of the Apex Court in - Shingara Singh v. State of Haryana and Anr. In para 26 of the Judgment, the Apex Court observed as under:

"It is well settled that in an appeal against acquittal the High Court is entitled to re-appreciate the entire evidence on record but having done so if it finds that the view taken by the trial Court is a possible reasonable view of the evidence on record. It will not substitute its opinion for that of the trial Court. Only in cases where the High Court finds that the findings recorded by the trial Court are unreasonable or perverse or that the Court has committed a serious error of law, or where the trial Court had recorded its findings in ignorance of relevant material on record or by taking into consideration evidence which is not admissible, the High Court may be justified in reversing the order of acquittal".

14. In that case the Apex Court observed that they did not find in that case to be one where the High Court was justified in reversing the findings recorded by the trial court. At best, it might be contended that the view taken by the High Court was also a reasonable view of the evidence on record. However, it cannot be said that the view taken by the trial court was not another reasonable view of the evidence on record. Therefore, as per the settled principle that when two views are reasonably possible on the basis of the evidence on record given favours to the accused must be accepted.

15. Bearing in mind the settled legal principle when we have found that the view taken by the trial court is reasonable and plausible and that on our own appreciation of evidence, we have affirmed the view taken by the trial court, we are of the opinion that it is absolutely not a case of calling for interference by the High Court in the order of acquittal recorded by the trial Court. In such circumstances, the learned trial Judge has committed no error in coming to the conclusion that the accused were liable to be acquitted. Hence no case whatsoever is made out for interference. In the result, the appeal fails and dismissed.