Bombay High Court
The State Of Mah vs Parshu R.Khillare on 4 July, 2017
Bench: S.S. Shinde
371.99appeal
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 371 OF 1999
The State of Maharashtra
Through P.I.
Hingoli (Rural) Police Station,
Tq. & Dist. Hingoli
APPELLANT
-VERSUS-
1. Parshu S/o Ramji Khillare
Age : 55 years, Occ : Agri.,
2. Dhanaji Parshuram Khillare
Age : 23 years, Occ : Agri.,
3. Natha Namdeo Sirsat
Age : 45 years, Occ : Agri.,
4. Shamrao Sonaji Jamdhade
Age : 32 years, Occ : Agri
(Dead),
5. Daulat Parshu Killare
Age : 27 years, Occ : Agri.,
(Dead)
6. Dinkar Shampati Dhavase
Age : 27 years, Occ : Agri.,
7. Punjaji Maribad Dhavase
Age : 28 years, Occ : Agri.,
8. Pratap Amruta Dhavase
Age : 29 years, Occ : Agri.,
9. Rajkumar Maroti Gavali
Age : 21 years, Occ : Agri.,
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10. Mariba Punjaji Dhavse
Age : 32 years, Occ : Agri.,
11. Udhav Maroti Gavali
Age : 25 years, Occ : Agri.,
12. Maroti Ghanshayam Gavali
Age : 50 years, Occ : Agri.,
13. Namdeo Natha Sirsat
Age : 30 years, Occ : Agri.,
14. Jairam Sambhaji Dahavase
Age : 45 years, Occ : Agri.,
15. Tatyarao Chapati Dhavse
Age : 27 years, Occ : Agri.,
All R/o Devthana,
Tq. & Dist. Hingoli.
RESPONDENTS
...
Mr. R.V. Dasalkar, APP for appellant-State.
Mr. P.M. Gaikwad, Advocate for respondent nos. 1
to 3 and 6 to 15.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 20th JUNE,2017.
DATE OF PRONOUNCING JUDGMENT: 4th JULY, 2017.
JUDGMENT (PER S.S. SHINDE, J.):
This appeal is filed by the State
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challenging the judgment and order of acquittal
dated 17th June, 1999 passed by the Additional
Sessions Judge, Hingoli in Sessions Trial No. 28
of 1995, thereby acquitting the respondents i.e.
original accused nos. 1 to 3 and 5 to 15 for the
offences punishable under Sections 147, 148, 302,
337, 149 of the Indian Penal Code (for short
"I.P.C.").
2. The prosecution case in nut-shell, is as
under:-
A) The first information report (for short
"F.I.R.") against all accused persons Exh.60 dated
23rd May, 1994 was filed by Mokinda Kishan Dhawse,
resident of Devthana, Tq. Hingoli with Police
Station, Hingoli (Rural). Deceased Bhima was elder
brother and Vishwanath is younger brother of the
informant. All three brothers were living
separately from last ten years. At about five to
six months before the incident dated 22 nd May,
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1994, Kailash son of Maroti Gavli died in an
accident at Dhamni Phata-Kalamnuri road. Accused
Maroti and others were thinking that, deceased
Bhima has committed murder of Kailash and in said
matter, Bhima was arrested for few days and then
was released.
B) It is the case of the prosecution that,
on 22nd May, 1994, informant Mokinda was sitting
infront of his house. His uncle Laxman Dhawse was
sitting with witness Shamrao Dhawse, infront of
the house of Laxman. House of Laxman and the
informant are adjoining to each other and there is
open space infront of their house. House of
deceased Bhima is also at short distance from
their house. Since death of Kailash, accused
Dinkar used to go to the house of witness Laxman
Dhawse and used to thump arms. At the time of the
incident, the accused Dinkar came infront of the
house of Laxman and looked at him and thumped
arms. Laxman asked him, why he is doing so. In
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reply accused Dinkar said, he wants to kill
somebody today. Immediately, Dinkar rushed with
Lathi in his hand towards Mokinda, and gave blow
by Lathi on his head. Because of said assault,
Mokinda raised shouts. At that time, witness
Kausabai Khillare was passing from nearby the said
place. She stopped there. Deceased Bhima, his wife
Mangal were standing infront of their house. By
hearing shouts of Mokinda, they rushed towards
Mokinda to help him. Immediately, after reaching
there, accused Udhav, Namdeo, Punjaji rushed
there. Udhav and Namdeo caught both hands of Bhima
and Punjaji caught his legs. Accused Dinkar rushed
to Bhima with a knife (Article-12) and stabbed it
deep in the chest of Bhima. Accused Natha was
present there with Gupti. He stabbed that Gupti
(Article-11) in stomach of Bhima. By looking this,
witness Shamrao rushed to help Bhima and tried to
catch Gupti from Natha. Natha assaulted by that
Gupti on the palm of hand of Shamrao and caused
him injury. Bhima also tried to catch Gupti by
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which he got injury on his hand. At that time,
other accused rushed there and started throwing
stones on Mokinda, Mangal, Kausabai, Shamrao,
Laxman and others to restrain them from going to
help Bhima. Injuries caused by accused Dinkar and
Natha were deep. Due to bleeding, Bhima
immediately collapsed on the spot and died. Due to
throwing of stones by the accused, the informant,
his father - Kausabai, Rukhmini, Shamrao and
others sustained injuries and could not help to
Bhima. Immediately after stabbing, accused Natha
said that, they have killed the person to whom
they wanted to kill and now he asked accused
persons to disperse from the place of the
incident. Then all the accused went towards their
houses.
(C) After accused went, Monkinda, Mangal,
Kausabai, Shamrao, Laxman and others went to Bhima
and found him dead. Bhima was lying there in blood
pond. Due to the said incident, Mokinda and the
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other persons got afraid. There was no vehicle
available immediately to go to Police Station. On
the next day morning, Mokinda and others went to
the Police Station, Hingoli (Rural) at about 6.00
to 6.30 a.m. and lodged the complaint. PSI, Dhere
registered the Crime No.64/1994 under sections
302, 337 of the I.P.C. PSI Dhere went along with
his staff immediately to the place of incident and
found dead body of Bhima lying there. There he
found three wooden pieces, Chadar, Shirt, Bangle
pieces, Chappal, one blood stained stump of Jawar
and blood. He prepared inquest panchanama, spot
panchanama and seized articles found at the spot.
Immediately after inquest panchanama, he sent dead
body of Bhima for the postmortem to the Government
Hospital, Hingoli. He recorded the statements of
the witnesses. The postmortem of dead body was
carried out by Dr. Kamtikar. He found death of
Bhima was caused by the stab injuries. He issued
postmortem report Exh.71. On the same day, PSI
Dhere arrested accused Dhanaji, Parasram, Natha.
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On 25th May, 1994, with the help of panch at the
instance of accused Natha he recovered Gupti kept
hidden in his house.
D) On 27th May, 1994, with the help of panch,
PSI Dhere recovered knife at the instance of
accused Dinkar kept hidden by him below one stone
on bundh of the land of Ramji in village Bhingi.
Both articles were seized under panchanama. On 28th
May, 1994, viscera of deceased was sent to the
Chemical Analyzer for the examination along with
blood sample of accused Dinkar. Other articles
were also sent to Chemical Analyser. Mokinda,
Kausabai, Shamrao and Kishan, who were injured
sent for the medical examination to the Rural
Hospital, Hingoli. On 23rd May, 1994, they were
examined. PSI, Dhere arrested some of the accused,
then he was transferred and further investigation
was carried out by PSI Bhakre. After investigation
was over, PSI Bhakre filed charge sheet against
all the accused in the Court of Judicial
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Magistrate, First Class, Hingoli. On the basis of
same, R.C.C. No.303 of 1994 was registered in the
Court of Judicial Magistrate, First class under
Sections 302, 337, 147, 148, 149 of the I.P.C.
E) Charge against all of the accused was
framed under Sections 302, 337, 147, 148, 149 of
I.P.C. and under Section 135(1) of the Bombay
Police Act. The charge was read over to the
accused, to which the accused pleaded not guilty
and claimed to be tried. The prosecution examined
in all 11 witnesses.
3. After recording the evidence and
conducting full fledged trial, the trial Court
acquitted the respondents - original accused
nos. 1 to 3 and 5 to 15 for the offences
punishable under sections 147, 148, 302, 337, 149
of I.P.C. Hence this Appeal by the State.
4. Learned A.P.P. appearing for the
appellant - State submits that, the case of the
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prosecution rests upon direct evidence. There are
more than two eye witnesses. Their evidence gets
corroboration from the Medical evidence and also
the other attending circumstances, and therefore,
the appeal filed by the State challenging the
order of acquittal of the respondents deserves to
be allowed.
5. Learned counsel appearing for the
respondents i.e. the accused submits that, the
evidence of prosecution witnesses suffers from
serious omissions, contradictions, improvements
and same is untrustworthy. He submits that,
Mokinda (PW-1) stated in his deposition that,
accused Dinkar had Lathi with him. He rushed
alongwith Lathi and gave stroke of Lathi on his
head. However, the medical certificate at Exhibit-
65 does not show corresponding injury to his head.
It is submitted that, Investigating Officer has
stated that, he did not refer the prosecution
witnesses for medical examination. He submits
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that, if the allegations in the first information
report are perused carefully, PW-1 has not stated
that, accused - Dinkar had assaulted him with
Lathi. Therefore, he submits that, the evidence of
PW-1 cannot be believed. He submits that, no
explanation is offered by PW-1 for delay in
lodging the first information report, in as much
as, the alleged incident had taken place at 6.30
p.m. on 22nd May, 1994 and the first information
report was registered on 23rd May, 1994. There is
more than 12 hours delay in lodging the first
information report. It is submitted that, the
Investigating Officer in his evidence before the
Court stated that, on 22nd May, 1994 the Police
Station, Hingoli (Rural) got information about the
murder of Bhima on that night at about 11.45 p.m.
The staff of Police Station started from Hingoli
to the place of incident for making enquiry and
they reached to the place of incident, and to that
effect, there is entry in the Station Diary. He
further submits that, the evidence of the
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Investigating Officer would make it clear that, he
deputed the police personnels at the place of
incident on the very same night. Therefore, PW-1
had no reason to cause delay in lodging the first
information report. It was possible for him to
immediately give information to the police, who
were present on very same night of the incident.
It is submitted that, PW-1 has not stated that, he
had received any injury, either of Lathi or stick,
in the first information report. However, in his
deposition before the Court, he has stated that,
he received injury by stick and also another
injury by stones, which were pelted by the accused
persons. It is submitted that, PW-3 - Kausabai
stated that, she received injury on her head, but
on perusal of the injury certificate at
Exhibit-66, it shows that, the injury mentioned is
on right facial. It is submitted that, the Medical
Officer has stated that, the injuries sustained by
the prosecution witnesses are possible by fall. He
also invited our attention to the evidence of
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other prosecution witnesses and submits that, the
said evidence suffers from omissions and
improvements. He submits that, none of the
witnesses had witnessed the incident since the
said incident, as alleged by the prosecution, has
never happened. The respondents took defence that,
on the date of incident, they were not available
in the village. It is submitted that, during the
cross examination of the Investigating Officer, he
admitted that, on the date of incident, some of
the villagers went outside the village for
marriage. It is submitted that, there were
offences pending against Bhima as well as Mokinda.
In one of the such offences, Mokinda spent money
to file application with a prayer to enlarge Bhima
on bail. Said application was allowed and Bhima
was released from jail. However, he did not return
the amount spent by Mokinda for his release on
bail, and therefore, there was scuffle between two
brothers i.e. Bhima and Mokinda and hence, Mokinda
killed Bhima. It is submitted that, though it is
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stated by Kausabai (PW-3) that, she sustained the
injury on her head, but on perusal of the medical
certificate at Exh.66, it appears that, there is
no corresponding injury to corroborate her version
that, she sustained the injury on her head in the
said incident. It is submitted that, the
prosecution has tried to suppress the genesis of
the incident, in as much as, though the concerned
Police Station was immediately informed by the
Police Patil about the alleged incident, and in
turn the concerned Incharge Police Station Officer
deputed the Police Personnels at the village of
incident on the very same night of the incident.
However, Mokinda showed total ignorance of such
arrival of the police at the spot of incident on
very same night. It is stated by the Investigating
Officer in his evidence that, whole night, the
police stayed near the dead body of Bhima.
Therefore, in all fairness, Mokinda should have
stated the true facts before the Court. The fact
that, the first information report is lodged after
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12 hours of the incident is an indicative of the
fact that, there was deliberate attempt to
implicate the respondents in the alleged offence,
though they were not concerned with the alleged
incident.
6. The learned counsel submitted that the
motive alleged against the respondents/accused
that, earlier one Kailas from the family of the
accused died due to attack by Bhima, and
therefore, accused killed Bhima, cannot be
accepted. There is no evidence brought on record
to suggest that, from such alleged incident of
assaulting Kailas by Bhima any untoward incident
had happened in between accused and Mokinda or
Bhima. It is submitted that, even if the
allegations are taken as it is that, Bhima
assaulted Kailas six months back of the incident,
however, during period of six months, there was
not a single incident of assault or any scuffle
between Mokinda and Bhima and the accused. It is
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submitted that, the trial Court upon appreciation
of entire evidence found that, the prosecution is
not able to connect the accused with the alleged
incident, and therefore, the benefit of doubt has
been extended in favour of the accused. The
learned counsel submitted that, the dead body of
Bhima was lying on some distance and blood mixed
mud was recovered from another spot. It shows
that, Bhima was killed by Mokinda and to cause
disappearance of the evidence, Bhima's dead body
was removed from actual spot of incident of
killing Bhima by Mokinda. It is submitted that,
the Medical Officer in his cross-examination
stated that, the injuries suffered by the
prosecution witnesses can be due to fall.
7. The sum and substance of the arguments of
the learned counsel appearing for the respondents
is that, the prosecution case suffers from serious
legal infirmities and also from omissions,
contractions and improvements, and therefore, in
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view of the settled principle of law, as has been
held by the Supreme Court in the case of Mohammed
Ankoos and others V/s Public Prosecutor, High
Court of Andhra Pradesh, Hyderabad 1, if the view
taken by the trial Court acquitting the accused
was a possible view, and could not be said to be
palpably wrong, in that case interference in the
judgment of acquittal, is unwarranted. In support
of contention that the entries in the case diary
can be used as aid in the enquiry or trial but not
as an evidence, reliance is placed on the ratio
laid down in the case of Mohammed Ankooos (supra).
Therefore, relying upon the findings recorded by
the trial Court and also the Notes of argument
placed on record, the learned counsel appearing
for the respondents submits that, the appeal filed
by the State against the acquittal may be
dismissed.
8. We have given careful consideration to
1 (2010) 1 SCC 94
371.99appeal
the submissions advanced by the learned A.P.P.
appearing for the appellant-State and learned
counsel appearing for the respondents/accused.
With their able assistance, we have carefully
perused the entire evidence so as to find out
correctness of the findings recorded by the trial
Court and the conclusions reached thereupon.
9. It is not necessary for us to elaborate
on the entire prosecution evidence but we will
consider the material evidence of the prosecution
witnesses. The star witness of the prosecution is
Mokinda (PW-1). In his evidence, he stated that,
all the accused persons are from his village, and
therefore, he knows them. He had another two
brothers, namely, Bhima and Vishwanath. Bhima was
elder brother. The incident had taken place on 22 nd
May, 1994 i.e. five years back. He stated that, at
about 4 p.m. on the day of incident, accused
Dinkar came infront of the house of Laxman. Laxman
is his uncle. Laxman's house is at 10 to 15 feet
371.99appeal
distance from his house. Accused - Dinkar came
infront of house of Laxman and thumped his arm in
challenging manner by looking towards his uncle
Laxman. Laxman was sitting infront of his house.
Laxman asked Dinkar why he is angry. At that time,
Mokinda was standing infront of his house. Accused
Dinkar had Lathi with him, he rushed along with
Lathi and gave stroke of Lathi on his head. House
of Bhima was about 15 feet from that place. His
brother Bhima rushed to rescue him. Accused Udhav
and Namdeo rushed to his house and they caught
both the hands of Bhima. Accused Punjaji also
rushed there and the other accused including Natha
also came there. Accused Natha stabbed "Gupti" in
the stomach of Bhima, Dinkar stabbed Rampuri knife
on the left side chest of Bhima. Bhima collapsed
at the spot. The Gupti and knife totally
penetrated in the chest and stomach of Bhima and
he sustained severe injuries and died on the spot.
Other accused were pelting stones. One stone hit
on the head of father of Mokinda and he fell down.
371.99appeal
He has also stated other details.
10. Upon careful perusal of the contents of
the first information report, he has not stated
that, Dinkar came with Lathi and he assaulted on
his head. Even in the first information report, he
has not stated that, he was assaulted by the
accused. Therefore, we find considerable force in
the arguments of the learned counsel appearing for
the respondents that, the evidence of Mokinda
cannot be believed since he did not tell truth
before the Court. Upon careful perusal of the
contents of the first information report, nowhere
it is stated that, Dinkar assaulted Mokinda on his
head and Mokinda sustained injuries and also there
is no corroboration from the medical evidence
that, Mokinda sustained the injuries on his head.
Though it is stated by Mokinda that, Dinkar
assaulted by knife to Bhima, when recovered knife
was shown to Medical Officer, he fairly stated
that, the said knife cannot cause injury as
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alleged by the prosecution. It is also not
explained by the witnesses how Dinkar came in
possession of the said knife when he was holding
Lathi. Therefore, the evidence of Mokinda does not
inspire confidence. In his evidence, he stated
that, due to fear, he could not go to lodge the
first information report on the date of incident
and he went to the Police Station on the next day
at 6.30 a.m. is completely unacceptable statement.
He had no reason to have any fear. It has come in
the evidence of the Investigating Officer that, he
deputed the police constables on very same night
on the date of incident. He stated that, the
Police were present for whole night. It appears
that, the Investigating Officer received the
information about the incident on the very same
night and then he took follow up action to depute
the police personnels, and accordingly, the police
went to the spot of incident and they were present
for whole night. Therefore, Mokinda has suppressed
this vital aspect, which goes to the root of the
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matter, in as much as, his statement before the
Court does not carry weight and rather it places
prosecution in precarious position and makes
entire prosecution case untrustworthy. Though he
has stated that, five to six months before the
incident, Kailash son of Maroti Gavli died at
Dhamni Phata, Kalamnuri road due to accident,
however, Maroti Gavli and others are thinking
Bhima killed Kailas, and therefore, they had
grudge in their mind and accordingly, they killed
Bhima. However, the prosecution has not brought on
record any evidence to show any untoward incident
in preceding six months of the date of incident
indicating any scuffle or quarrel in between the
accused and Mokinda or Bhima.
11. It is true that, Bhima died homicidal
death, however, the prosecution was unable to
connect the accused with the alleged incident and
the benefit of doubt is given in favour of the
accused. The prosecution has also not explained
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why the dead body was found on different spot,
than the place from which mud mixed blood was
seized. It has come on record that, dead body of
Bhima was lying somewhere and blood was found on
some other spot, and the prosecution has not
explained about the same.
12. Investigating Officer - Madhav Parbatrao
Dhere (PW-11), in his evidence has stated that, on
22nd May, 1994, he was working as Police Sub-
Inspector with the Police Station, Hingoli. Next
day morning of the date of incident i.e. on 23rd
May, 1994, Mokinda Dhawase from village Deothana
came to the Police Station. PW-11 was present in
the Police Station. He narrated the incident and
the same was reduced into writing. He took
signature of the informant Mokinda and registered
the crime. He went to the spot and prepared
inquest panchanama in presence of two panchas and
also seized the blood and blood mixed earth lying
on the ground, and other articles were also
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recovered from the spot. He further stated that,
when the accused were in his custody, they made
memorandum statements and accordingly, certain
recovery was made from them.
During his cross-examination, he stated
that, on the date of incident i.e. on 22nd May,
1994 his Police Station received information about
the murder of Bhima. On that night at about 11.45
p.m. his staff members started from Hingoli to the
spot of incident. Its entry was taken by Police
Head Constable Buckle No. 747 in the Police Diary.
He went with five constables. At that time, those
police persons stayed near the dead body. They
took search of accused at night. They sent the
information to the police station on 23 rd May,
1994. On 23rd May, 1994, investigation was caused
by him. He further stated that, he cannot say
definitely on which direction of dead body the
blood was lying at a distance of 18 feet. There
were no blood stains near the dead body. At a
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distance of 18 feet blood was lying in the area of
1 to 1 /2 feet. He was unable to say the exact
location of the house of Mokinda. He further
stated that, servant Mangalabai had not stated
before him that, she got afraid on that night, and
therefore, did not go to the Police Station to
report the incident. Witness Kausabai did not
state before him that, witness Shamrao got
injuries of Gupti on his left hand. He did not
state before him that, accused Udhav and Natha
caught hold the hands and accused Punjaji caught
legs of Bhima. She did not state before him that,
at the time of incident, Shamrao, Mokinda,
Rakhmabai, Laxman and Kishan were present there.
She did not state before him that, they were
pelting stones and she received injury. She did
not state before him that, Mokinda, Kishan and
Shamrao also got injuries due to pelting of
stones. He recorded the statement of Laxman,
however, he did not tell before him that, he went
to help Bhima and accused Natha pulled him on the
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ground. He did not tell before him that, Punjaji
caught legs of Bhima from backside. He did not
tell before him that, Bhima asked accused Dinkar
why he was always quarreling. He also recorded the
statement of witness Shamrao. He stated that, he
did not tell before him that, Udhav and Namdeo
caught hands of Bhima. He did not tell before him
that, before incident they were sitting infront of
house of Laxman. He did not state before him that,
Kishan and Kausabai received injuries due to
pelting of stones.
13. If the evidence of Mokinda, who is star
witness of the prosecution, is considered along
with the other eye witnesses and also attending
circumstances, it does not inspire confidence. On
material aspects, there are serious omissions,
contradictions and improvements, though the
Investigating Officer has received information on
the same day of incident through the Police Patil,
however, neither the said Police Patil or other
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person, who informed the Police Patil has been
examined by the prosecution. In the facts of the
present case, it will have to be held that, the
delay of more than 12 hours in lodging the first
information report was fatal to the prosecution
case, in as much as, Mokinda (PW-1) did not tell
true facts in his deposition before the Court
that, on the date of incident itself during night
six police constables came to the village on the
same night and they were present there throughout
night as stated by PW-11. This Court is dealing
with the appeal filed by the State against the
acquittal. It is settled law that, if the possible
view has been taken by the trial Court and even if
another view is possible on the basis of evidence
on record, is no ground to interfere in the order
of acquittal. Upon appreciation of the entire
evidence brought on record, the trial Court found
that, the evidence brought on record by the
prosecution suffers from serious legal infirmities
and witnesses did not tell truth before the Court.
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The contradictions, omissions and improvements
made by the prosecution witnesses are not minor in
nature and those are substantial in character,
which makes the prosecution case unbelievable and
ultimately not trustworthy.
14. Upon careful scrutiny of the evidence of
the prosecution witnesses (PW-2 to PW-9), we have
noticed the following inconsistencies/
improvements/ contradictions and omissions in
their evidence :-
(1) On perusal of examination in chief of PW-2
Mangal, she does not marks presence of PW-
3 Kausabai and PW-5 Shamrao at the place
of incident. She does not states about
any injury sustained by PW-3 Kausabai and
PW-5 Shamrao and Kishan, which is contrary
to the record.
(2) PW-2 Mangal in her deposition states that,
rubber buts of Jairam were lying on the
spot, however, on perusal of spot
panchanama Exh.76 it does not seem such
rubber buts were found and seized from the
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spot of incident.
(3) PW-2 Mangal states that, dead body was
lying at the spot, where her husband died
till arrival of the police. However, on
perusal of spot panchnama at Exh.76 it is
found that, blood was found at distance of
18 feet away from the dead body.
(4) PW-2 Mangal states that, before death of
her husband he never went to jail and no
criminal case was filed against him. It is
contrary to the admissions given by PW-1
Mokinda.
(5) PW-3 Kausabai in her deposition states
that, she had received injury on her head,
but on perusal of the injury certificate,
it appears that, the injury located on
"right facial".
(6) PW-3 Kausabai does not state about the
presence of PW-2 Mangalbai. As already
stated the presence of Kausabai was not
referred by Mangalabai also.
(7) PW-3 Kausabai stats she got injury by
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stone on her head, but on perusal of her
injury certificate at Exh.66, the alleged
injury mentioned on the right facial. It
shows that the alleged injury is not
located as per her statement, and there is
inconsistency in between oral and
documentary evidence.
(8) PW-3 Kausabai states that, "they told they
have assaulted to the person who was to be
assaulted". As such, PW-3 alleges
generally and she does not support the
name of Natha as alleged by other
witnesses.
(9) PW-3 Kausabai admits her relation with
PW-1 Mokinda and further admits that, talk
in front of the house of Laxman could not
be heard from the house of Bhima.
(10) PW-4 Dr. Subhash Kamtikar admits that,
injuries found in the post-mortem are not
possible by knife article 12 and further
admits that, injury no.1 is not possible
by article no.12.
(11) PW-4 Dr. Subhash states that, on the same
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day, he treated Shamrao, Kausabai,
Mokinda, Kishan and issued their medical
certificates. However, the said Medical
officer had not duly proved the injuries
sustained by the said witnesses.
(12) PW-4 Dr. Subhash states that, Article
no.11 is like Rampuri Chaku with double
edge and he did not think it is a Gupti.
Considering such statements the injuries
allegedly sustained by the deceased Bhima
are not possible by the alleged recovered
weapons as Article 11 and 12.
(13)PW-5 Shamrao in his deposition admits that,
the case about theft with Nahuji was filed
against him. It shows that, the said
witness had also criminal antecedents.
(14) PW-5 Shamrao states that, he did not catch
Gupti. This statement is contrary to the
statement of PW-1 Mokinda.
(15) PW-5 Shamrao admits that, Bhima was from
his Bhavaki. As such, he admits the
relation with prosecution witnesses.
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(16) PW-5 Shamrao states that, he told to
police Udhav and Namdeo caught hands of
Bhima, but he was unable to state why it
is not written in his police statement. He
further states that, he told to police
names who accompanied to rescue Bhima, but
he was unable to state why it is not
written in his police statement. He states
that, he told to police Mokinda was
assaulted in front of his house, but he
was unable to state why the words 'in
front of this house of Mokinda' are not
written in his police statement.
(17) PW-5 Shamrao states that, at the time of
incident villagers did not come there.
This statement is contradictory to
statement of PW-1 Mokinda.
(18) PW-6 Laxman Ramji states that, at that
time there was Lathi in his right hand and
knife in the left hand. Such statement is
inconsistent and contradictory to the
other witnesses. He also further states
that, Bhima asked Dinkar why he is
quarreling, Bhima shouted and accused
Natha pushed him. These statements are not
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supported by other witnesses.
(19) PW-6 Laxman states that, he told the
police that, he himself and Shamrao were
sitting in front of his house, Bhiama
shouted, Udhav and Namdeo caught the hands
and accused Punja caught legs from back
side, however, he was unable to state why
the same is not written in his police
statement.
(20) PW-6 Laxman states that, before death,
case of truck looting was not filed
against Bhima. This statement is contrary
to evidence of PW-1 Mokinda. It has come
on record in the same para that, before
death Bhima was arrested about murder of
Kailash and he was got released on bail
and he was under arrest for 7 to 8 days.
(21) PW-6 Laxman states before the police that,
there was Lathi in the right hand and in
the left hand there was Chaku, accused
Dinkar assaulted by Lathi to Mokinda,
Bhima was asked to Dinkar why he was
quarreling, accused Dinkar assaulted by
knife on the left side of Chest of Bhima
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and he told the names of the persons, who
received assault by stones, the blood of
Bhima was lying at the place of incident,
Lathi of Dinkar was lying there and it had
blood, at 4.30 a.m. Mokinda and 4 others
went to the police station. However, he
was unable to state that, why the above
said statements are not appearing in his
police statement. Such improvements are
brought on record.
(22) PW-7 Kashiram Ingole admits about the
relationship with prosecution witnesses.
(23) PW-9 Kashiram Bhoyar states that, on 25th
May, 1994 police called him at the house
of Gyanoba Patil at his village. It means
he was not called in the police Station.
He further states that, accused Natha and
Dinkar were present there, police persons
were present there, accused Natha said
that, he will produce a weapon from his
house and no writing took place there.
After considering such statements, the
discovery and recovery of alleged weapon
"Gupti" cannot be believed at all in law.
371.99appeal
15. The trial Court upon considering the
evidence of the Investigating Officer found that,
the Investigating Officer did not send the
prosecution witnesses for medical examination,
however, the medical certificates about
examination of Mokinda, Shamrao, Kausabai are
placed on record. Their oral testimony that, they
suffered injuries on a particular part of the
body, do not get corroboration from the medical
evidence. The Medical Officer has opined that, the
injuries in injury certificates at Exhibit-65 to
68 can be caused by fall. The prosecution has not
proved the injuries stated in injury certificates
Exhibit-65 to Exhibit-68 through the Medical
Officer. The Medical Officer only stated about the
certificate at Exhibit-65 to Exhibit-68 on record.
The trial Court observed that, the Investigating
Officer when reached to the place of incident, saw
blood was found at a distance of 18 feet from the
dead body. All the witnesses are related to each
other and deceased Bhima. The first information
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report received by the Police about the incident
is not brought on record by the prosecution. The
belated recovery from accused Natha and Dinkar on
25th May, 1994 and 27th May, 1994 respectively, also
creates doubt about it's genuineness. It also
appears that, no proper procedure was followed
while effecting such recovery and seizure of
clothes from the accused. The Medical Officer Dr.
Anantrao Kamtikar (PW-4) has stated in his cross-
examination that, the injury no.2 of deceased
Bhima was not possible by single sided edged
weapon i.e. knife Article No.11. The trial Court
has adverted to the cross-examination of Kausabai
(PW-3). She did not state before the Police that,
she was going to the house of her daughter Lalita
and also that, accused Udhav and Namdeo caught
hold the hands of Bhima and legs by Punjaji. She
did not state before the police that, the hands of
deceased were caught by accused Udhav and Namdeo.
Witness Laxman also did not state before the
police that, hands and legs of deceased were
371.99appeal
caught by accused Udhav, Namdeo and Punjaji.
16. The defence has brought on record through
cross-examination of the eye witnesses that, on
the date of incident, there was marriage at some
other village, and therefore, villagers went for
said marriage. It appears that, the suggestion was
given that, even the respondents/accused went for
marriage and they were not present in the village
on the said date of incident. Another suggestion
was also given that, Bhima was arrested in some
criminal case and for releasing him on bail,
expenses were borne by Mokinda. Bhima did not
return the money spent by Mokinda, and therefore,
there was scuffle between Mokinda and Bhima and
Mokinda assaulted Bhima and consequently, Bhima
died in the alleged incident on 22nd May, 1994.
17. In the light of the discussion in the
foregoing paragraphs and the findings recorded by
the trial Court, we are of the considered view
371.99appeal
that, the view taken by the trial Court was
possible, and therefore, in view of the settled
position in law that, even if another view is
possible is no ground to interfere in the order of
acquittal. The Supreme Court in the case of
Muralidhar alias Gidda and another Vs. State of
Karnataka2 in para 12 held thus:-
12. The approach of the appellate
Court in the appeal against acquittal
has been dealt with by this Court in
Tulsiram Kanu Vs.State, AIR 1954 SC
1, Madan Mohan Singh Vs. State of
U.P., AIR 1954 SC 637, Atley Vs.
State of U.P., AIR 1955 SC 807, Aher
Raja Khima Vs. State of Saurashtra,
AIR 1956 SC 217, Balbir Singh Vs.
State of Punjab, AIR 1957 SC 216,
M.G.Agarwal Vs. State of Maharashtra,
AIR 1963 SC 200, Noor Khan Vs. State
of Rajasthan, AIR 1964 SC 286, Khedu
Mohton Vs. State of Bihar, [1970] 2
SCC 450, Shivaji Sahabrao Bobade Vs.
State of Maharashtra, [1973] 2 SCC
2. 2014 [4] Mh.L.J.[Cri.] 353
371.99appeal
793, Lekha Yadav Vs. State of Bihar,
[1973] 2 SCC 424, Khem Karan Vs.
State of U.P., [1974] 4 SCC 603,
Bishan Singh Vs. State of Punjab,
[1974] 3 SCC 288, Umedbhai Jadavbhai
Vs. Sate of Gujarat, [1978] 1 SCC
228, K.Gopal Reddy Vs. State of A.P.,
[1979] 1 SCC 355, Tota Singh Vs.
State of Punjab, [1987] 2 SCC 529,
Ram Kumar Vs. State of Haryana, 1995
Supp [1] SCC 248, Madan Lal Vs.
State of J & K, [1997] 7 SCC 677,
Sambasivan Vs. State of Kerala,
[1998] 5 SCC 412, Bhagwan Singh Vs.
State of M.P. [2002] 4 SCC 85,
Harijana Thirupala Vs. Public
Prosecutor, High Court of A.P.,
[2002] 6 SCC 470, C. Antony Vs.
K.G.Raghavan Nair, [2003] 1 SCC 1,
State of Karnataka Vs.
K.Gopalakrishna, [2005] 9 SCC 291,
State of Goa Vs. Sanjay Thakran,
[2007] 3 SCC 755 and Chandrappa Vs.
State of Karnataka, [2007] 4 SCC 415.
It is not necessary to deal with
these cases individually. Suffice it
to say that this Court has
371.99appeal
consistently held that in dealing
with appeals against acquittal, the
appellate Court must bear in mind the
following: (i) There is presumption
of innocence in favour of an accused
person and such presumption is
strengthened by the order of
acquittal passed in his favour by the
trial court, (ii) The accused person
is entitled to the benefit of
reasonable doubt when it deals with
the merit of the appeal against
acquittal, (iii) Though, the powers
of the appellate Court in considering
the appeals against acquittal are as
extensive as its powers in appeals
against convictions but the appellate
Court is generally loath in
disturbing the finding of fact
recorded by the trial court. It is so
because the trial Court had an
advantage of seeing the demeanor of
the witnesses. If the trial court
takes a reasonable view of the facts
of the case, interference by the
appellate Court with the judgment of
acquittal is not justified. Unless,
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the conclusions reached by the trial
court are palpably wrong or based on
erroneous view of the law or if such
conclusions are allowed to stand,
they are likely to result in grave
injustice, the reluctance on the part
of the appellate Court in interfering
with such conclusions is fully
justified; and (iv) Merely because
the appellate Court on re-
appreciation and re-evaluation of the
evidence is inclined to take a
different view, interference with the
judgment of acquittal is not
justified if the view taken by the
trial Court is a possible view. The
evenly balanced views of the evidence
must not result in the interference
by the appellate Court in the
judgment of the trial Court.
[Underlines supplied]
18. In the light of discussion in foregoing
paragraphs, though there is a direct evidence in
the nature of eye witnesses and also Bhima died
homicidal death, upon scrutiny of the entire
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evidence, we are of the considered view that, the
view taken by the trial Court is possible. In that
view of the matter, the appeal stands dismissed.
Bail bonds, if any, shall stand cancelled.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
SGA
