The State Of Mah. Thr. Pso, ... vs Govinda S/O Mangu Rathod And 2 ...
2017 Latest Caselaw 2401 Bom

APEAL 568/05                                          1                       Judgment


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.

                    CRIMINAL APPEAL NO. 568/2005 

The State of Maharashtra,
Through PSO Police Station Khandala,
Tq. Pusad, Distt. Yavatmal.                                                  APPELLANT

                                       .....VERSUS.....

1.      Govinda s/o Mangu Rathod,
        Aged about 40 years.

2.      Chandur Damle Rathod,
        Aged about 27 years.

3.      Charan @ Khullya Govind Rathod,
        Aged about 18 years.

All R/o Rehade, Tq. Pusad, Distt. Yavatmal.                            RESPONDE
                                                                                NTS

           Shri S.M. Ukey, Additional Public Prosecutor for the appellant.
                  Shri K.S. Narwade, counsel for the respondents.

                       CORAM : B.R. GAVAI  AND  N.W. SAMBRE, JJ.

                                       08  TH         MAY  ,       2017.
                       DATE    :
                        

ORAL JUDGMENT (PER:B.R. GAVAI, J.)

The State has approached this Court assailing the

finding of acquittal as recorded by the learned Additional Sessions

Judge, Pusad in Sessions Trial No.40 of 2001, dated 03.05.2005.

2. The accused were prosecuted for the offence

punishable under Section 302 read with Section 34 of the Indian

APEAL 568/05 2 Judgment

Penal Code on the charge that they along with one juvenile in

conflict with law, viz. Gajanan Ade, in furtherance of their common

intention, committed murder of Tukaram Kashiram Rathod.

3. It is the prosecution case that P.W.1-Kashibai, the

mother of the deceased and the first informant, had three sons

and three daughters. All the three sons were residing separately.

Her sons were named as Tukaram, Deepak and Mohan. Tukaram

was the eldest while Mohan was the youngest. She was residing

with Mohan. Tukaram was married to Jijabai, P.W.2, prior to

around twenty years. It is the prosecution case that there was a

quarrel between Tukaram and his wife and Tukaram had slapped

his wife. At around 7.30 p.m., when Tukaram was standing in

front of his house, accused nos.1 and 2 pulled deceased Tukaram

from his house and assaulted him with sticks. Accused no.3 and the

juvenile in conflict with law, viz. Gajanan Ade also came with sticks

and started beating Tukaram. Tukaram fell down and sustained

bleeding injuries. After the incident, the accused persons went

away.

APEAL 568/05 3 Judgment

4. The deceased was taken in a matador to Police Station

Khandala wherein an oral report came to be lodged and on the basis

of the oral report, an F.I.R. vide Crime No.1 of 2001 for the offence

punishable under Section 302 read with Section 34 of the Penal

Code came to be registered. After investigation, the charge-sheet

came to be filed in the Court of learned Judicial Magistrate First

Class, Pusad. Since the case was exclusively triable by the learned

Sessions Judge, it came to be committed to the learned Sessions

Judge, Pusad. The learned Sessions Judge framed the charges

against the accused persons for the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code. The

accused pleaded not guilty and came to be tried. At the

conclusion of the trial, the learned Sessions Judge passed an order

of acquittal.

5. Shri S.M. Ukey, the learned Additional Public

Prosecutor, submits that the learned Sessions Judge has grossly

erred in acquitting the accused persons. He submits that there were

as many as three eye witnesses and the learned Sessions Judge

ought not to have disbelieved their testimonies. He submits that

merely because they are the interested witnesses and there are

APEAL 568/05 4 Judgment

minor discrepancies in their testimonies, that cannot be a ground to

discard their testimonies.

6. Undisputedly, all the three eye witnesses, viz. P.W.1-

Kashibai, P.W.2-Jijabai and P.W.3-Lilabai are the relatives of the

deceased being mother, wife and cousin. Merely because the

witnesses or the eye witnesses are the relatives and the interested

witnesses, that cannot be a ground to discard their testimonies. The

order of conviction can be passed believing their testimonies,

however, the testimony of such witnesses is required to be

scrutinized with greater caution and the order of conviction can be

passed only if their testimonies are found to be trustworthy, reliable

and cogent.

7. So far as the evidence of P.W.1-Kashibai is concerned,

in her cross-examination, she has admitted that at the time of

incident, she was in the house of another son and not in the house

of the deceased. P.W.2-Jijabai also admitted that there was

darkness at the time of incident and that Kashibai was in the house

of another son and that she had arrived after the incident had

APEAL 568/05 5 Judgment

occurred. She has further admitted that by the time Kashibai

arrived at the scene, all the accused had left the spot of incident. It

is, thus, clear that there is a doubt as to whether these two

witnesses have really witnessed the incident or not.

8. Insofar as the evidence of P.W.3-Lilabai is concerned,

she had admitted that though the police had arrived at the spot of

incident on the next day, she did not narrate about the incident to

the police. Her statement was recorded by the police three days

after the incident had taken place. The conduct of the relatives of

the deceased in not immediately narrating about the incident after

the police arrived at the spot, is unnatural. Apart from that, there

are various omissions in her statement regarding the time of the

incident, the weapons used by the accused, etc.

9. If the case goes beyond the purview of the direct

evidence, it becomes a case of circumstantial evidence. The

prosecution has utterly failed to prove any of the incriminating

circumstance beyond reasonable doubt, leave aside the chain of

circumstances, which leads to no other conclusion than the acquittal

of the accused.

APEAL 568/05 6 Judgment

10. The law of interference in an appeal against acquittal is

well defined by Their Lordships of the Apex Court. Unless it is

found that the view taken by the learned trial Court is impossible, it

is not possible for this Court to interfere with the same only because

the other view is possible. It is also not possible unless the view

taken by the trial Court is perverse. No impossibility or perversity is

found in the well reasoned judgment of the trial Court. Since the

appeal is found to be without merit, the same is dismissed.

                JUDGE                                          JUDGE

APTE