Bombay High Court
The State Of Mah vs Kishabapu Bhosale & Ors on 31 March, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.76 OF 2000
The State of Maharashtra
Through Public Prosecutor,
High Court Bench at
Aurangabad. APPELLANT
[Ori.Complainant]
VERSUS
1. Kishabapu @ Krushnarao Nanasaheb
Bhosale, age: 36 Yrs., R/o.Deogaon
(Bk) Tq.Paranda, District: Osmanabad
2. Jalindar Vishwanath Bagal,
age: 25 Yrs, r/o. as above
3. Mohan Nivrati Kakade,
age: 27 Yrs.,
r/o. as above. RESPONDENTS
[Ori. Accused]
...
Mr.S.P.Deshmukh, Advocate for the appellant -
State.
Mr.Satej S. Jadhav, Advocate for respondent
nos.1 to 3.
...
WITH
CRIMINAL REVISION APPLICATION NO.37 OF 2000
Madhukar s/o Baba Lawangare,
Age : 55 Yrs, Occu: Agri,
R/o Deogaon, Dist : Osmanabad PETEITIONER
VERSUS
1. The State of Maharashtra
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2
2. Kishabapu alias Krushnnarao s/o Nanasaheb
Bhosale, Age : 41 Years, Occu:Agri,
R/o.Deogaon (Bk), Tq : Paranda,
District: Osmanabad
3. Jalindar s/o Vishwanath Bagal,
Age: 30 year, Occu: Agril,
R/o. As above
4. Mohan s/o Nivruti Kakade,
Age: 32 Yrs., Occu: Agri
R/o. as above RESPONDENTS
...
Mr.V.M.Humbe and Smt. M.A.Kulkarni, Advocate
for the petitioner - absent.
Mr.S.P.Deshmukh, APP for respondent - State.
...
CORAM: S.S.SHINDE &
K.K.SONAWANE,JJ.
Reserved on : 17.02.2017
Pronounced on : 31.03.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. Criminal Appeal No.76 of 2000 is
filed by the appellant, challenging the
judgment and order of acquittal dated 6th
November, 1999, passed by the Additional
Sessions Judge, Osmanabad in Sessions Case
No.146/1995.
Criminal Revision Application No.
37/2000 is filed with prayer for quashing and
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setting aside the judgment and order passed
by the Additional Sessions Judge, Osmanabad
in Sessions Case No.146/1995, dated 6th
November, 1999 and for imposing the
punishment to the respondent nos.2 to 4 under
Section 302 r/w. 34 of the Indian Penal Code.
2. It is the case of the prosecution
that, deceased Ashok was the son of the
informant-Madhukar and husband of Pavitra
[PW3]. The informant and his two sons were
residing together and running grocery and
tailoring shop. Accused nos.1 to 3 are also
residing at village Deogaon i.e. village of
the informant. It is the case of the
prosecution that the alleged incident had
taken place out of political rivalry. The
accused had grudge in their mind that the
deceased Ashok was opposed to the name
suggested by the accused for appointment on
the post of Sarpanch.
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3. It is the prosecution case that, on
6th May, 1995 at about 9.30 a.m., when the
informant, Ashok [deceased] and Pavitra were
taking meals in their house, the accused went
to their house on the pretext of purchasing
cigarette. The deceased Ashok went to the
shop section which is part of one room of the
house so as to give them cigarettes, but
accused nos. 2 and 3, Mohan and Jalindar
caught his hands while accused no.1 Kishabapu
inflicted scissor in his chest. Deceased
Ashok sustained bleeding injury and when the
informant and Pavitra went in the shop; the
persons from the adjoining houses also
gathered on the spot. The deceased was
carried to the Government Hospital, Paranda,
but the Medical Officer declared him dead.
The informant went to the Police Station
Paranda and lodged the first information
report [Exh.44]. The First Information Report
was recorded at zero number and then the same
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was forwarded to the Ambi Police Station for
investigation as the alleged crime was
committed within the jurisdiction of the said
Police Station. When Ambi Police Station on
receiving said First Information Report
registered it as crime No.16/1995 for the
offence punishable under Section 302 r/w. 34
of the Indian Penal Code and one Mr.Mundhe
working as API acted as an Investigation
Officer and continued with the further
investigation.
4. After investigation, he filed
charge-sheet. The Court of Additional
Sessions Judge, Osmanabad, framed charge.
The accused pleaded not guilty. The trial
Court recorded the evidence of the
prosecution witnesses, and upon appreciation
of the entire evidence, acquitted the accused
nos.1 to 3. Hence this Appeal filed by the
State. The original informant namely Madhukar
Baba Lawangare has also filed Criminal
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Revision Application No.37/2000 [Madhukar
Baba Lawangare Vs. The State of Maharashtra
and others].
5. The learned APP appearing for the
appellant-State invites our attention to the
evidence of the PW1, and submits that the
Medical Officer Dr.Ashok Khanapure has
clearly stated that the death of Ashok was
homicidal. He invites our attention to the
evidence of the PW2 [Madhukar], PW3 [Pavitra]
and PW4 [Shakubai], and submits that all
three witnesses have witnessed the incident
and their evidence is not properly
appreciated by the trial Court. It is
submitted that if the evidence of three eye
witnesses read in its entirety, coupled with
the medical evidence, the prosecution did
prove that Ashok [deceased] was killed by
three accused. He submits that accused nos.2
and 3 Mohan and Jalindar caught the hands of
Ashok and accused no.1 Kishabapu gave blow by
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scissor on his chest and as a result Ashok
died on the spot. He submits that the
evidence of PW2 [Madhukar] gets corroboration
from the evidence of PW3 [Pavitra] and PW4
[Shakubai]. Therefore he submits that the
appeal filed by the State, deserves to be
allowed, and the order of acquittal granted
in favour of accused, deserves to be set
aside.
6. On the other hand, the learned
counsel appearing for the respondents -
original accused invites our attention to the
findings recorded by the trial Court and
submits that the prosecution has not proved
motive for commission of offence, the
evidence of the alleged eye witnesses is
totally contradictory and far from truth. He
submits that upon reading the evidence of PW2
[Madhukar], PW3 [Pavitra] and PW4 [Shakubai],
it is abundantly clear that, neither they
have seen the incident nor they were present.
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He submits that PW4 [Shakubai], was examined
first time in the Court and her statement was
not recorded by the police. He invites our
attention to the judgment of the Supreme
Court in the case of Ganesh Bhavan Patel and
another Vs. State of Maharashtra1 and submits
that, although in an appeal from an order of
acquittal the powers of the High Court to
reassess the evidence and reach its own
conclusion 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
1 AIR 1979 SC 135
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an appellate Court in disturbing a finding of
fact arrived at by a Judge who had the
advantage of seeing the witnesses." Where two
reasonable conclusion 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 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. He further placed reliance on
the ratio laid down in the judgment of the
Supreme Court in the case of Ramesh Vs.
State2 and submits that, the Supreme Court in
the facts of that case held that there is a
general tendency on the part of the witnesses
not to tell the whole truth. They often
2 1979 Cri.L.J. 727
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resort to exaggeration and embellishment when
narrating an incident. He submits that in the
present case the evidence of the alleged eye
witnesses is fully untrustworthy, and
therefore, it needs to be discarded and
rightly benefit of doubt is given in favour
of the respondents-accused by the trial
Court. He submits that all three eye
witnesses are interested witnesses, who are
related to the deceased, and there are no
independent witnesses examined by the
prosecution. Therefore, he submits that the
trial Court has rightly granted benefit of
doubt to the respondents - accused, and
therefore, this Court may not cause
interference in the acquittal order passed by
the trial Court.
7. We have carefully considered the
submissions of the learned counsel appearing
for the appellant-State, and the learned
counsel appearing for the respondents -
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accused. With their able assistance, we have
perused the grounds taken in the appeal memo
and annexures thereto, and the notes of
evidence. We have carefully perused the
evidence of PW2 to PW4, who, according to the
prosecution, are eye witnesses to the alleged
incident. Upon careful perusal of their
evidence, it clearly appears that at the
relevant time there was no election for the
post of Sarpanch. Therefore, the alleged
motive of political rivalry between Ashok
[deceased] and respondents-accused is
completely ruled out. It is stated in the
evidence of PW3 [Pavitra] that, deceased
Ashok had no quarrels with the accused, and
the accused persons were frequently coming to
their house. It is also admitted by the PW2
[Madhukar] that deceased Ashok was not
member of the Grampanchayat, nor anybody else
of his family was member. Therefore, the
evidence of PW2 [Madhukar] and PW3 [Pavitra]
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clearly indicates that, the term between
deceased Ashok and accused were quite cordial
and there was no reason to have enmity
amongst them. It is not the case of the
prosecution or eye witnesses that, an accused
came with some weapons to assault the
deceased Ashok. It appears that accused
persons allegedly came to the house of the
informant for the purpose of purchasing
cigarette. It is true that motive does not
play any important role when the eye
witnesses are examined by the prosecution,
but the prosecution has not brought on record
anything, why respondents-accused decided to
kill Ashok, except alleged 'political
rivalry' as stated by the prosecution.
8. It appears that the alleged spot of
incident is grocery shop situate in the house
of the informant. It appears that there is a
door from inside of the house for the said
grocery shop and unless the person enters in
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the shop; it is not possible to visualize
from outside what would have happened in the
shop on the date of incident. It is also
relevant to note that though prosecution
witnesses have claimed in their evidence
before the Court that they have witnessed the
alleged incident, however, if the recitals of
the FIR is seen, there appears to be
omissions on the part of the prosecution
witnesses inasmuch as in the FIR, it is not
made clear that, whether an informant has
actually witnessed the alleged incident or
otherwise. Upon perusal of the evidence of
PW2 [Madhukar], he disclosed that when Ashok
[deceased] and accused went in the shop
section, he heard voice of Ashok that "Bhau
Melo", however, according to the PW3
[Pavitra], she heard voice of deceased Ashok
that "what Ashok has done, why they are
assaulting him." Therefore, it appears that
PW2 [Madhukar] and PW3 [Pavitra], have
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narrated different stories, and therefore,
their evidence becomes doubtful. Therefore,
their evidence about the presence of the
accused on the spot is contradictory. When
respondent no.2 lodged FIR [Exh.44], the
recital of the FIR is to the effect that
accused no.1 stabbed deceased Ashok by means
of knife. However, in the evidence before the
Court the informant and also PW3 [Pavitra]
stated that accused stabbed Ashok by means of
scissor i.e article 3. In fact, knife and
scissor are two different instruments.
Therefore, such statements of the alleged eye
witnesses which narrate contradictory
versions make prosecution case doubtful. If
the evidence of PW3 [Pavitra] is read
carefully, she stated that said scissor was
pierced in the chest of the deceased and the
informant removed the same / took out the
said scissor from the chest of Ashok.
Therefore, it appears that the informant
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handled scissor soon after the incident, and
therefore, it is not possible that an
informant has mistakenly stated in the FIR
that, the accused assaulted Ashok by knife
instead of mentioning scissor.
It is also relevant to mention that,
though PW1 [Dr.Ashok] has stated in the
evidence that death of Ashok was homicidal
nevertheless in his cross examination, he
stated that the dimensions of injury do not
tally to the dimensions of the scissor having
its both blades together. If the scissor is
inflicted having its both blades in open
condition and separate, then there will be
more than one injury. He has also stated that
there was possibility of survival of
deceased, had he been received treatment
within one hour from the alleged incident.
It appears that the informant did not take
deceased Ashok to the nearest Hospital,
though available, in time.
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9. Upon re-appreciating the evidence of
the prosecution witnesses in its entirety,
the evidence of PW2 to PW4 i.e. eye witnesses
suffers from the omissions, contradictions
and improvements. Their evidence makes
prosecution case untrustworthy, doubtful and
unreliable. The trial Court, upon
appreciation of the entire evidence brought
on record, has taken plausible view and
extended the benefit of doubt in favour of
the accused. Even if we assume for the moment
that, on the basis of the evidence brought on
record by the prosecution, another view is
possible, however, it is not a ground to
interfere in the findings recorded by the
trial Court, when the findings recorded are
in consonance with the evidence brought on
record and there is no perversity as such,
and plausible view is taken by the trial
Court.
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10. Therefore, for the reasons
aforesaid, in our considered view, the view
taken by the trial Court deserves no
interference, as a squeal there is no
substance in the appeal filed by the State
and the same stands dismissed. For the same
reasons, the Criminal Revision Application
also stands dismissed.
[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
