The State Of Maharashtra vs Bhatu Narayan Patil And Ors
2017 Latest Caselaw 4701 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.243 OF 2000


 The State of Maharashtra,
 Through Public Prosecutor,
 High Court Bench at Aurangabad.
                                 ...APPELLANT 
        VERSUS             

 1) Bhatu Narayan Patil,
    Age-25 years,
    R/o-Bhadgaon, Tq-Sakri,
    Dist-Dhule,

 2) Vilas Bhatu Patil,
    Age-19 years,
    R/o-Bhadgaon, Tq-Sakri,
    Dist-Dhule,

 3) Kailas Ratan Patil (Deore),
    Age-28 years,
    R/o-Deur, Tq-Sakri,
    Dist-Dhule,

 4) Sopan Bhatu Patil,
    Age-22 years,
    R/o-Bhadgaon, Tq-Sakri,
    Dist-Dhule,   
                                 ...RESPONDENTS
                      ...
    Mr.S.J. Salgare, A.P.P. for  Appellant.
    Mr.N.B. Suryawanshi Advocate for Respondent 
    Nos. 1 to 4.       
                      ...




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               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 3RD JULY, 2017.

DATE OF PRONOUNCING JUDGMENT: 19TH JULY, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is preferred by the State

challenging the Judgment and order dated 23rd

February, 2000, passed by the Additional Sessions

Judge, Dhule in Sessions Case No.26 of 1997,

thereby acquitting original accused Nos.1 to 4/

Respondent Nos.1 to 4 from the offence punishable

under Section 302 read with Section 34 and Section

447 read with Section 34 of the Indian Penal Code

(in short "I.P. Code").

2. The prosecution case, in nut-shell, is as

under :-

A) It is the case of the prosecution tht

Damu, Ravan, Dashrath and Dattu are the four

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brothers. Dattu is said to be the elder. In the

year 1971, partition had taken place amongst these

four brothers and the ancestral properties came to

be partitioned. Narayan Patil is said to be the

real paternal uncle of the aforesaid four

brothers. Accused No.1 Bhatu is said to be son of

Narayan Patil, in the sense accused No.1 Bhatu is

said to be the cousin of the aforesaid four

brothers. This Bhatu Narayan is said to have two

sons, namely Vilas and Sopan (accused Nos.2 and

4). Vakil is said to be the son of Narayan Patil.

Thus, it can be said that Bhatu and Vakil are the

sons of Narayan Patil. As the ancestors of Dattu

and his three brother and the ancestors of Bhatu

and Vakil remained joint for a pretty long time,

they had been possessing the landed properties in

joint. In due course of time, the partition had

taken place. Consequently, a piece of land came to

be divided in sub-divisions. The land of Bhatu

Narayan is adjacent to the land of Dattu Kalu. It

is being said that even on a trifle matters, the

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dispute had taken place between Bhatu Narayan,

Vakil Narayan on one hand and Dattu Kalu and his

three brothers on the other hand. Complaints were

filed. They fought the litigation in Civil Court

as well as in criminal Courts. This rivalry

culminated by taking away lives of four innocent

boys who were in their prime youth.

B) Another cause of this rivalry was that

the piece of land belonging to Dashrath Kalu and

Damu Kalu was adjacent to the land of Bhatu

Narayan. Ravan Kalu sold his piece of land to

Bhatu Narayan. There was a well which was in

common. These four real brothers and their cousin

were having equal share in that well water. Day to

day the water level of that well started

diminishing. No remedy was left open before

Dashrath but to dig a separate well to irrigate

his crops. The well which was dug independently by

Dashrath was adjacent to the common well. Bhatu

Narayan also dug a separate well. On account of

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that fact, the water level of all the wells in the

vicinity had reduced and none of them was in a

position to get sufficient water to irrigate their

crops. Since that day, the enmity which was

already in existence, started worsening.

C) It is the case of the prosecution that in

the night of 22nd April, 1996, deceased, namely,

Vijay - aged 15 years, Dipak - aged 13 years,

Tatyabhau - aged 13 years and Ramdas - aged 19

years, were sleeping in a piece of land known as

Guntara. The accused armed with a deadly weapon,

namely axe, went there. They had given blows by

means of an axe on the person of those four boys.

Out of four boys, three boys succumbed to their

injuries, whereas the fourth boy died after the

interval of eight to ten days.

D) On 22nd April, 1996, Dashrath Kalu along

with his wife went out of village Bhadgaon. Before

leaving the house on 22nd April, 1996, in the

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morning hours, he had called his two sons namely

Vijay and Dipak to be more vigilant as at the

relevant time there was a standing crop of ground-

nut in that piece of land which is known as

"Guntara". While leaving the house, Dashrath Kalu

had given the instructions to his two sons Vijay

and Dipak to take care of the standing crops even

during the night hours and if necessary, they

should take the assistance of their friends.

Accordingly, Vijay and Dipak called their friends

namely, Tatyabhau Popat Patil and Ramdas Kautik

Patil.

E) In the night of 22nd April, 1996, in the

house of Dashrath, his two sons Vijay and Dipak

and daughters namely, Surekha, Baija and Sunanda

were present. Surekha, Sunanda and Baija slept in

the house of Dashrath which was in the field known

as Guntara, whereas the aforesaid four boys went

near the well to sleep there, which is at a very

short distance from that house.

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F) On 23rd April, 1996 when Dashrath

returned to his village and started proceeding

towards his land, he was being told by one Vinayak

Uttam Patil who was working as a mason, as the

construction of the well was going on, that his

two sons and their two friends died as somebody

killed them, for the reasons that there were

number of injuries on their persons. The informant

Dashrath Kalu went there. He found that Tatyabhau,

Vijay and Dipak had died, whereas Ramdas was found

lying in an unconscious condition. Ramdas was

removed immediately from that place for being

admitted in the hospital, but on his way, he

succumbed to his injuries. In the complaint,

informant Dashrath Kalu had expressed his doubt

that the boys might have been murdered by Bhatu

Narayan, Supan Bhatu and Vilas Bhatu.

G) On receiving the complaint, the offence

under Section 302, 307, 447 read with Section 34

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of the I.P. Code was registered. The investigating

officer carried out the investigation. The

panchnama Exhibit-48 of scene of offence was

drawn. During the course of investigation, the axe

came to be recovered from the possession of

accused Vilas Bhatu. The inquest panchnamas were

drawn. The post-mortem examination reports were

procured. The clothes of the deceased containing

the blood stains and other necessary articles were

sent to Chemical Analyzer for opinion and after

completion of the investigation, the charge-sheet

was filed against the accused.

H) A charge for an offence punishable under

Section 302 read with Section 34 and Section 447

read with Section 34 of the I.P. Code was framed

against the accused and the same was explained to

them. The accused persons pleaded not guilty and

claimed to be tried, with the defence of total

denial.

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3. After recording the evidence and

conducting full fledged trial, the trial Court

acquitted all the accused i.e. accused Nos.1 to 4

from the offences with which they were charged,

Hence this Appeal is preferred by the State.

4. Heard learned A.P.P. appearing for the

State and learned counsel appearing for

Respondents-accused, at length. Learned A.P.P.

appearing for the State invites our attention to

the notes of evidence and and in particular

evidence of PW-6 Bayjabai and submits that PW-6

has witnessed the incident. He submits that overt

act is attributed against all the accused persons.

The prosecution has also brought on record

circumstantial evidence against all the accused

persons. He further submits that the trial Court

has not appreciated the evidence on record in its

proper perspective, and the findings recorded by

the trial Court are not in consonance with the

evidence brought on record by the prosecution.

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Therefore, he submits that the Appeal may be

allowed.

5. Mr.N.B. Suryawanshi, learned counsel

appearing for the original accused / Respondents

referring to the written notes of arguments,

invites our attention to the findings recorded by

the trial Court and submits that on analysis of

the evidence of all the prosecution witnesses and

in particular evidence of alleged eye witness PW-6

Bayjabai, the trial Court found that it suffers

from serious contradictions, omissions,

improvements and therefore benefit of doubt is

given to the accused. It is submitted that another

eye witness PW-7 Surekha has not supported

prosecution case and she turned hostile. He

further submits that another witness PW-8 Vishwas,

to whose house alleged eye witnesses went after

seeing the incident, has turned hostile and did

not support the prosecution case. He further

submits that recovery of axe, i.e. alleged weapon

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used in the crime, is doubtful, as the same is

from the open place, accessible to all. He further

submits that most material witnesses including

Kesarbai, her sons, Ahilyabai who is maternal aunt

of PW-6 Bayjabai, are not examined by the

prosecution, so also alleged eye witness Sunanda

was also not examined. Hence adverse inference

under Section 114(g) of the Evidence Act requires

to be drawn against the prosecution. The defence

has brought on record that there was a grudge in

the mind of the informant PW-5 Dashrath against

the accused, on the issue of well water. There was

no motive for the accused to kill the four boys.

The prosecution has not brought on record the

genesis of the incident. He invites our attention

to the findings recorded by the trial Court and

submits that interference in the order of

acquittal is unwarranted. He submits that the

trial Court has taken a plausible view and though

another view may be possible, the same is no

ground to interfere in the order of acquittal.

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The entire prosecution case appeared doubtful to

the trial Court and therefore the Respondents are

acquitted. Therefore, he submits that the Appeal

deserves to be dismissed. In support of his

submissions, learned counsel Mr. Suryawanshi has

placed reliance on the reported Judgments in the

case of the State of Bihar vs. Mohammad Khursheed 1,

Nachhettar Singh and others vs. the State of

Punjab2, Chandrappa vs. State of Karnataka3 and

Shivasharanappa and others vs. State of Karnataka4.

6. The prosecution has examined PW-1

Bansidhar Gaikwad, the circle inspector who had

drawn the map of scene of offence, Exhibit-46. He

deposed that he was working as Revenue Inspector

at Sarki. On the strength of the report of the

police station Sakri, on 6th June, 1996 he had

drawn the map of the place of incident. He went to

Bhadgaon on 6th June, 1996 in the field of Damu

1 A.I.R. 1971 S.C. 2268 2 1976 Cri. L.J. 691 3 A.I.R. 2007 S.C. (Supp) 111 4 (2013) 2 S.C.C. 705

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Kalu. He went to the place of incident and drawn

the map.

. During the course of his cross-

examination, he admitted that he had drawn the map

of the field of Damu Kalu where the incident took

place. He admitted that to the west and to the

north of the said land, there is a forest area. He

admitted that village Vaghane is at a distance of

3 K.m.s from the land of Damu Kalu. He admitted

that villages namely Rahud, Juna Rampura, Kakane,

Bajbai Shevali and Kalgaon are within the range

of 3 to 4 K.m.s from the land of Damu Kalu. He

further admitted that it had come to his notice at

the time of drawing the map that the heap of mud

(soil) which is adjacent to the well was having

the height of 10 feet from the ground level. He

further admitted that the distance between the

place of incident i.e. the land of Damu Kalu and

village Bhadgaon is 1 K.m. approximately. He was

unable to say exactly that, in the year 1995 to

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1997 there was no electric supply to the entire

villages of Sakri Taluka throughout the day i.e.

on Monday.

7. PW-2 Nimba Bedse is a panch to the spot

panchnama Exhibit-48. PW-3 Kashinath Gavali and

PW-4 Ravindra Namdeo Pawar are the panchas to

recovery of axe, at the instance of accused No.2

Vilas, which was kept on Bandh of land. PW-11

Rohidas Vitthal Jadhav is an investigating

officer. He deposed about the manner in which he

has carried out the investigation.

8. The prosecution examined PW-5 Dashrath

Kalu Patil, who is informant in this case. He

deposed that he has two sons namely, Vijay and

Dipak. He has one daughter namely, Sharada. At the

time of incident Vijay was 15 years old and Dipak

was 13 years old. He has three brothers namely,

Dattu, Damu and Ramu. He deposed that accused No.1

Bhatu Narayan is his cousin brother. Bhatu has two

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sons namely, Supan and Vilas. He further deposed

that he has a piece of land within the limits of

village Bhadgaon, which land is known as

"Guntara". His land is adjacent to the land of

accused No.1 Bhatu Narayan. There is a well in the

portion of Bhatu Narayan. The said well is common

having share of he himself, his brother Damu Kalu,

accused No.1 Bhatu Narayan and two brothers of

Bhatu namely, Vakil Narayan and Rupchand Narayan.

At the time of incident, they all sharers had been

fetching the water jointly from the said well. He

was not getting sufficient water from the said

well and therefore four months prior to the

incident he dug a separate well in his portion,

which is approximately at a distance of 70 feet

from the common well. Bhatu Narayan also dug his

separate well in his land two months after he dug

the well. There was sufficient water in his well,

whereas there was no sufficient water in the well

of accused No.1 Bhatu. He further deposed that

before the incident, a quarrel had taken place

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between he himself and accused No.1 Bhatu. In the

year 1991, accused Nos.1, 3, 4 and others had cut

his pipeline for which he had filed a complaint

against them and he was threatened by accused

Nos.1, 4 and their supporters to withdraw the

complaint. Thereafter accused No.4 set on fire his

mango tree by thorny fencing. He deposed that the

only cause for enmity between him and accused was

the well water.

. PW-5 Dashrath further deposed that on

22nd April, 1996 at 8.00 p.m. his two sons namely,

Vijay and Dipak left the house to go to the land

to sleep there. While leaving the house they told

that they will fetch the water from the well and

he should come to the land in the next morning. On

the next day morning at about 8.00 to 8.30 a.m.

one Vinayak Uttam came to him and told that his

sons were murdered. He went there and found that

four dead bodies were lying in his land known as

Guntara. On the same day he went to the police

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station and filed a complaint. He did not see

Vilas and Supan there and therefore he presumed

that they might have absconded. He expressed

suspicion against the accused persons.

. During the course of cross-examination,

PW-5 Dashrath admitted that in his village he is

having an inimical terms with number of persons.

He further admitted that at the time of filing

complaint, he had expressed his suspicion against

one Vishwa Bhoju and his sons, Mahendra, Bhaskar

and those two who were digging his well. He denied

that before the police he had expressed doubt

against Santosh Gorakh and Sunil Santosh. He

admitted that Santosh Gorakh and Sunil Santosh

were arrested by the police. He stated that he

said before the Magistrate that on Monday, i.e. on

the day of incident, there was no electric supply.

He admitted that he has not stated before the

police that the accused had broken his pipeline

and therefore the quarrel had taken place. He

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admitted that he has not stated before the police

that two months before the incident accused set on

fire his mango tree. He admitted that as Bhatu dug

the well, the water level of his well had reduced

to a greater extent.

9. The prosecution has examined PW-6

Bayjabai Pandurang Nikam. She deposed that at

village Bhadgaon her maternal aunt Ahilyabai is

residing. She is the sister of her mother. Vakil

Narayan is the husband of Ahilyabai. Dashrath Kalu

is brother of Vakil Narayan. Bhatu Narayan is

brother-in-law of her maternal aunt. The incident

took place on 21st April, 1996. Her maternal aunt

resides in the house which is in the land with her

two daughters namely, Surekha and Sunanda, and at

the time of incident she was residing in the said

house.

. About the incident, PW-6 Bayjabai deposed

that at about 11.00 to 11.30 p.m. they woke up

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from the sleep. Supan told them to leave that

place and he had given threats to them. They

stayed in the house for some time. They came out

of the house. Surekha had given the call to her

paternal uncle, but there was no response. They

started proceeding towards Dashrath Kalu's land as

they thought that the boys might be sleeping

there. They reached upto the coconut tree. They

saw that, Supan and Vilas were removing the

counterpane. There were four boys who were

sleeping. They heard their noise. They saw that

Supan and Vilas were giving blows by means of an

axe. The younger daughter of her maternal aunt was

frightened. They then went to the land of Kesarbai

and they had disclosed the incident to Kesarbai.

They stayed there during the whole night. On 23rd

April, 1996 she herself, Surekha and Sunanda

returned to the house and they had disclosed the

entire episode which had taken place during night

time, to her maternal aunt Ahilyabai. She further

deposed that thereafter they went to the spot of

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incident and saw that boys were found lying on the

cot and saw that all four boys were found smeared

with blood. She deposed that the distance between

that coconut tree and the place where those boys

were lying is 100 feet.

. During the course of her cross-

examination, PW-6 Bayjabai stated that at the

relevant time she was studying in 9th standard in

a school at Lakhamapur. At that time Sunanda might

be of 7 to 8 years. As those were days of summer

holidays, she came to Bhadgaon. She admitted that

except the family members of her maternal aunt,

she does not know the names of any other persons

of Bhadgaon. She admitted that at Bhadgaon she was

not on the visiting terms to the house of anyone.

Fifteen days before the incident she came to

Bhadgaon and she stayed in the house of her

maternal aunt which is in the land, consistently

for a period of fifteen days. She admitted that

the distance between the place of incident and the

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house may be 600 feet. She stated that it did not

happen that they had seen the incident from their

house. They had witnessed the incident from the

well. They were standing at the distance of 1 to

1 and 1/2 feet from the well. She admitted that

she herself, Surekha and Sunanda slept in the

house of Kesarbai. Even though Surekha told

Kesarbai about the incident, neither Kesarbai nor

her sons went to the spot of incident. She

admitted that sons of Kesarbai are major and

married. She admitted that neither she herself nor

Surekha and Sunanda disclosed the incident which

they had witnessed in the night, to the persons

who had assembled on the spot of incident

including P.S.I. and other police personnel. She

admits that at that time her maternal aunt did not

disclose the incident to P.S.I. or to other

constables or the persons assembled there. Her

statement was recorded by the Magistrate. She

admitted that she did not say before the

Magistrate that they woke up at about 11.00 to

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11.30 p.m. and that, Supan threatened them and

told them to leave the place. She admitted that

she did not say before the Magistrate that Surekha

had given the call to her paternal uncle however

there was no response. She admitted that she

did not say before the Magistrate that they were

under the impression that boys might be sleeping

in the land of Dashrath therefore they stopped

near the coconut tree. She admitted that she did

not say before the Magistrate that Supan and Vilas

removed counterpane from the persons of those four

boys and that they heard their noise. She admitted

that she did not say before the Magistrate that

they had seen Vilas and Supan while committing

assault by means of axe on the person of those

four boys. She admitted that she had stated before

the Magistrate that on hearing shouts, they

frightened and went to the land of Vishwas Bhoju.

She admitted that she had stated before the

Magistrate that Kesarbai told them better to sleep

as it was night time and they would see in the

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next day morning and accordingly they slept there

and thereafter they did not know what had

happened. She admitted that she had stated false

things before the Magistrate at Sakri. She has

admitted that she herself, Surekha, Sunanda and

Dashrath Kalu came together in the Court. She

denied the suggestion that she was deposing

falsely at the instance of her aunt and Dashrath

Kalu.

10. The prosecution examined PW-6A Dattu Kalu

Patil. He is brother of the informant Dashrath

Kalu. He has deposed about the earlier disputes

and quarrels between his family members and the

accused persons. He has deposed that the relations

between informant Dashrath and accused were

strained due to the issue of well water. He

further deposed that prior to the incident Bhatu

Narayan had broken the pipe of electric motor of

Dashrath and thereafter Bhatu Narayan cut the

mango tree which belonged to he himself and his

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three brothers.

11. The prosecution examined PW-7 Surekha

Vakil Sonawne. As per the prosecution case, PW-7

Surekha has also witnessed the incident. However,

this witness has not supported the prosecution and

turned hostile. She deposed that she herself and

her two sisters were in the land, the had prepared

the mill, took their meal at about 8.00 p.m. and

they went to bed. She deposed that four to five

hours after they went to bed, they heard the

shouts. They heard the noise of weeping abruptly

and therefore they went to the hut of Vishwas

Bhoju and told him that they heard the sound of

weeping. Thus, this witness turned hostile. This

witness was cross-examined by the prosecution.

However, nothing fruitful has been elicited during

her cross-examination by the prosecution.

12. The prosecution examined PW-8 Vishwas

Bhoja Bedse. As per the prosecution case, the eye

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witnesses PW-5 Bayjabai, PW-7 Surekha and her

sister Sunanda, after witnessing the incident went

to the house of this witness and told the incident

to him. However, this witness has not supported

the case of prosecution and turned hostile. He

deposed that on the day of incident he was present

in his land, and during night time the daughters

of Vakil Narayan namely Sunanda and others came to

his house and it had come to his notice that they

were weeping and he further deposed that they

simply told him that he should protect them. This

witness was cross-examined by the prosecution.

However, nothing fruitful has been elicited during

her cross-examination by the prosecution.

13. The prosecution has examined PW-9 Vinayak

Uttam Bese. He deposed that after the incident on

next day morning at 7.00 a.m. he went in the land

of Dashrath Kalu. He deposed that Dashrath Kalu

told him to go to the village to inform the

villagers. He deposed that he found that four boys

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were found murdered. Accordingly, he went in the

village and reported the incident to the

villagers.

14. The prosecution examined PW-10 Dr.

Subhash Gatalu More. He deposed that he conducted

post-mortem on the dead bodies of Ramdas Kautik

Patil, Vijay Dashrath Patil, Tateyabhau Popat

Patil and Dipak Dashrath Patil. He deposed about

the injuries noticed by him on the dead bodies of

the above said four boys, which were mentioned by

him in the respective postmortem reports. He

deposed that the cause of death was "shock due to

head injury". He deposed that death of all the

four boys was homicidal.

15. We have discussed in detail the evidence

of the prosecution witnesses. The star witness of

the prosecution case is PW-6 Bayjabai. We have

also made reference to her cross-examination and

therefore we do not think it necessary to repeat

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the same. It appears that she stated that she

witnessed the incident from the coconut tree, and

in second breath stated that the incident was

witnessed by her from nearby the well. She stated

that the distance from where she saw the incident

was 100 feet from the spot of incident. However,

upon perusal of the evidence of PW-1 Bansidhar

Gaikwad, through whom the prosecution proved the

map showing the spot and surrounding lands of the

spot of incident, in the said map it is stated

that well is 200 feet away from the spot of

incident. Upon careful perusal of the said map, it

appears that there are two coconut trees. It is

not clear from the evidence of PW-6 Bayjabai, near

from which tree she saw the incident. It further

appears that in front of those coconut trees, at

some distance there was an electric bulb. However,

it has come in the evidence of PW-5 Dashrath that

electricity light was not available during the

concerned night. It has also come on the record

that lantern at the place of incident was not

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functioning at the relevant time. PW-1 Bansidhar

has also stated in his evidence that to the West

and North of the said land of Damu Kalu, i.e. spot

of incident, there is forest area. PW-5 Bansidhar

has stated in the cross-examination that, he

noticed at the time of drawing map, there was heap

of mud (soil), which was adjacent to the well,

having the height of 10 feet from the ground

level. He has also stated the distance between

spot of incident and village Bhadgaon and also

village Vaghane. PW-2 Nimba Bedse, in his evidence

stated that, distance between three wells, which

are there nearby the spot, and the place of

incident is 300 feet. The prosecution is not sure

from how much distance PW-6 Bayjabai saw the

actual incident. PW-6 Bayjabai, as per the

prosecution case who witnessed the incident, has

not disclosed the said incident to police or the

public who gathered at the spot on the next date.

The conduct of the the prosecution witness PW-6

appears to be unnatural. The another prosecution

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witness PW-7 Surekha, who, as per the prosecution

case, also witnessed the incident along with PW-6

Bayjabai, turned hostile and did not support the

case.

16. PW-6 Bayjabai retracted her statement

made before the Magistrate and if Para-12 of her

cross-examination is perused carefully, it would

reflect that she retracted the statement made

before the Magistrate, except she stated that when

incident was told to Kesharbai, Kesharbai told

them better to sleep as it was night time and they

would see in the next morning, and that

accordingly they slept and thereafter they did not

know what had happened. The entire statement in

Para-12 of the cross-examination of PW-6 Bayjabai

is byway of contradictions/ retraction to the

statement made before the Magistrate. The fact

that PW-6 Bayjabai woke up at 11.00 to 11.30 p.m.

itself does not get corroboration from any other

witness. As already observed, during cross-

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examination, PW-6 Bayjabai stated that she has not

stated before the Magistrate that they woke up

from the sleep at about 11.00 to 11.30 p.m. Apart

from it, PW-6 Bayjabai stated in her cross-

examination that the statement made before the

police was not read over to her. Since PW-6

Bayjabai is the star witness of the prosecution,

and since the incident was very sad and

disturbing, in as much as four boys were killed,

we have carefully perused her evidence. However,

upon re-appreciation of entire evidence of PW-6

Bayjabai, we do not think that it inspires

confidence. Therefore, it would be unsafe to rely

upon the testimony of PW-6 Bayjabai and reverse

the order of acquittal passed in favour of the

Respondents. As already observed, the other

witnesses turned hostile and did not support the

prosecution case.

17. It is true that PW-5 Dashrath is father

of deceased Vijay and Dipak. However, in his

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statement given before the police at the earliest

opportunity available to him, he had only

expressed suspicion about the accused. However,

PW-5 Dashrath admitted in his cross-examination

that he had expressed his suspicion against one

Vishwa Bhoju and his two sons, namely Mahendra and

Bhaskar also. Even if we take the motive for the

commission of offence, regarding the dispute of

well water, in that case also, the another two

boys who were killed i.e. Tatyabhau and Ramdas,

were not from the family of PW-5 Dashrath. Apart

from it, it has come in the evidence of PW-5

Dashrath that there were signs of two big

sugarcane sickle blows on the person of two dead

bodies. In the first place, the recovery of axe by

the police is from the open place, and secondly it

does not appear that sickle was recovered at the

instance of the accused. The other evidence which

is available on record, is not the direct evidence

which would connect the accused with the

commission of crime.

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18. PW-10 Dr. Subhash who conducted post-

mortem on the dead bodies of four boys, deposed

that the cause of death was "shock due to head

injury" and death of all the four boys was

homicidal. However, as already discussed, there is

no cogent, convincing and clinching evidence so as

to connect the accused with alleged commission of

crime. PW-6 Bayjabai has stated that her maternal

aunt told her boys that they should take care of

the standing crop in the field. It does not appear

that either PW-5 Dashrath or his wife expressed

apprehension that accused may attack or assault

those two boys of PW-5 Dashrath.

19. As already discussed, it has come on

record that PW-5 Dashrath and Bhatu Narayan had

dug separate wells after the quarrel. PW-5

Dashrath stated that after Bhatu Narayan dug

separate well, the quantity of water in his well

was reduced. When the prosecution relied upon the

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direct evidence in the nature of eye witnesses,

the motive looses its importance. However, after

we discussed the evidence of PW-6 Bayjabai and

other eye witnesses, we have also made endeavour

to examine the case of the prosecution on

circumstantial evidence. The chain of

circumstances on which reliance was placed by the

prosecution, has not been established beyond

reasonable doubt by the prosecution and there are

several contradictions, omissions, discrepancies

and improvements in the evidence of the

prosecution witnesses in respect of various

circumstances and therefore reliance could not be

placed on the oral testimony of said witnesses.

20. In the light of discussion herein above,

on independent and in-depth scrutiny of entire

evidence, we are of the opinion that the findings

recorded by the trial Court are in consonance with

the evidence brought on record. The trial Court

has taken a possible view. The Supreme Court in

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the case of Sharad Birdhichand Sarda Vs. State of

Maharashtra5 has held that, the prosecution must

stand or fall on its own legs and it cannot derive

any strength from the weakness of the defence. It

is not the law that where there is any infirmity

or lacuna in the prosecution case, the same could

be cured or supplied by a false defence or a plea

which is not accepted by a Court. It is also to be

borne in mind that the case in hand is a case of

circumstantial evidence and if two views are

possible on the evidence on record, one pointing

to the guilt of the accused and other their

innocence, the accused are entitled to have the

benefit of one which is favourable to them.

21. The Supreme Court in the case of

Muralidhar alias Gidda and another Vs. State of

Karnataka6 in para 12 held thus:-

12. The approach of the appellate Court

5 (1984) 4 SCC 166

6. 2014 [4] Mh.L.J.[Cri.] 353

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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 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,

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[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 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, the conclusions reached by the trial court are palpably

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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 added]

22. In the light of discussion herein above,

we are of the opinion that there is no merit in

the Appeal. The Criminal Appeal stands dismissed.

Bail Bonds, if any, of Respondent Nos.1 to 4,

shall stand cancelled.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JUL17