State vs Krishnath Baburao Patil Vs ...
2017 Latest Caselaw 2539 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CRIMINAL APPELLATE SIDE JURISDICTION
                         CRIMINAL APPEAL NO. 404 OF 1995

The State of Maharashtra                                                                                  .... Appellant

           Vs.

Shri. Krishnath Baburao Patil                                                                              ... Respondent
R/o Vadgaon, Tal. Hatkanangale,
District: Kolhapur.


Mr. Arfan Sait APP for the State.
Mr. S. A. Ingawale Advocate for Respondent.


                     CORAM: A. S. OKA & SMT. SADHANA S. JADHAV, JJ

                     DATED : MAY 15, 2017.


JUDGMENT (PER: SMT. SADHANA S. JADHAV, J)

1) The State of Maharashtra being aggrieved by judgment and order dated

25/01/1995 passed by 3rd Additional Sessions Judge, Kolhapur thereby

acquitting the respondent for offence punishable under section 302 of the

Indian Penal Code in Sessions Case No. 126 of 1994 has filed present appeal.

2)         Such of the facts necessary for the decision of this appeal are as



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follows:



(i)        That Ganpati was married to Kalpana, sister of accused Krishnath

(Hereinafter referred as 'Respondent'). That on 03/05/1994, Kalpana died due

to drowning. She had fallen in the well. That the dead body of deceased

Kalpana was taken out from the well and thereafter Ganpati had been called.

He immediately informed the police about the death of his wife due to

drowning. A.D. was registered under section 174 of Code of Criminal

Procedure, 1973. The dead body of Kalpana was sent for post-mortem to the

Government Hospital at Vadgaon. Balram Ananda Chavan and Ganpati had

also gone to the hospital along with dead body of deceased Kalpana. At about

8.30 a.m., Ganpati was sitting on a bench in the verandah of the hospital

along with his brother Ananda. Accused Respondent, Bhimrao i.e. co-brother

of Ganpati and one unknown person were sitting upon a separate bench. At

that time, accused Respondent had stabbed Ganpati with knife. Ganpati was

moaning in pain. Ananda had caught hold of the accused. Accused escaped

from the clutches of Ananda and continued to stab Ganpati and gave three

more blows on his chest. Pandurang was also in the hospital. Accused then

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fled from the spot and Ganpati was lying on the bench. Ganpati was taken in

the hospital room for treatment, however, he succumbed to the injuries. Father

of deceased Ganpati namely Pandurang Chavan lodged a report to the police.

On the basis of the said report, crime no. 55 of 1994 was registered against

accused Respondent for offence punishable under section 302 of the Indian

Penal Code. Charge-sheet is filed on 13/7/1994.

(ii) It had transpired in the course of investigation that accused Respondent

had nurtured a feeling that his sister Kalpana had committed suicide due to ill-

treatment and humiliation at the hands of the deceased Ganpati and therefore,

he stabbed Ganpati in the hospital. Investigation was completed and charge-

sheet was filed against the accused. Case was committed to the Court of

Sessions and registered as Sessions Case No. 126 of 1994. Charge was framed

on 21/10/1994. Prosecution examined as many as 10 witnesses to bring home

the guilt of the accused.

3) P.W. 1 Baburao patil is the Panch for attachment of clothes of accused

Respondent. He was arrested in the presence of P.W. 1. He has proved the

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contents of Panchanama at Exhibit 14. It is elicited in the cross-examination

that P.W. 1 was acquainted with the family of the deceased. It is also elicited

in the cross-examination that P.W. 1 had been to the police station at about

12.30 p.m. He had been to Vadgaon as he had learnt about the death of

Ganpati.

4) P.W. 2 Sanjay Patil is also a Panch for recovery of scabbard under

section 27 of the Indian Evidence Act. He has proved the contents of

Memorandum Panchanama which is at Exhibit 16. According to the

prosecution, scabbard was found in a gutter. Panchanama is at Exhibit 17.

5) P.W. 3 Dr. Raosaheb Desai was working as Medical Officer at Vadgaon

Hospital. He had conducted autopsy on the dead body of Ganpati. He has

deposed before the Court that Ganpati had sustained as many as 4 stab

injuries.

(i) First injury was on the left side in 4 th intercostal space 2.5 cm medial to left breast oblique-sharp edges 2.5 X 1½ X 7.5 cms.

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           (ii)        Stab injury on chest right side 2nd inter-costal space 1 cm lateral
           to lateral border of sternum. 2.5 X 1 X 8 cms.

           (iii)       Stab injury on left supraclavicular fossa on upper margin on the

left clavicle 3 cms lateral to stermoclavicle joint-oblique 2.5 X 1½ X 4.5 cms margin sharp edges. Age 4 to 6 hours.

(iv) Stab injury on face on left side below mandible oblique extending towards right ear 2 X 1 X 3 cms. Sharp edges. Age 4 to 6 hours.

P.W. 3 Dr. Raosaheb Desai had opined that "Cause of death was due to

hemorrhage shock due to stab injury to lung and heart". The death was mainly

because of the injuries caused to the heart and all four injuries were on vital

parts of the body. P.W. 3 has proved memorandum of postmortem which is

marked at Exhibit 19. P.W. 3 had also conducted autopsy on the dead body of

Kalpana and had formed an opinion that cause of death of Kalpana was

"Asphyxia due to drowning". He has further deposed that Kalpana had died

24-36 hours prior to conducting postmortem examination. P.W. 3 was shown a

weapon marked as Article no. 3. He has admitted that he has mentioned in his

report that all the injuries are caused by a sharp weapon and that he has not

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mentioned in his report that one side of the weapon was blunt.

6) Upon perusal of postmortem report, it shows that pleura was injured on

both lungs and there was blood in pleural cavity. There was a stab injury on

the left lung. There was also a stab injury on left verticle-oblique 3 cm X 2 cm

deep Lt. Ventricle - Heart empty wt. 150 gms. Cause of death is shown as

hemorrhage shock due to stab injury to lung and heart.

7) P.W. 4 Pandurang Chavan happens to be father of deceased Ganpati. He

has deposed before the court that on 3/5/1994, Kalpana had fallen in the well

and died about 6.00 p.m. He has further deposed before the Court that

incident had occurred at about 8.30 a.m. when he was sitting on a bench in the

verandah of the hospital along with his brother Balu. He has given the

location of the place where the witnesses as well as Balu and accused were

sitting. According to him, accused just got up from the bench and started

inflicting knife blows to Ganpati. Pandurang is an eye witness to the incident.

It is elicited in the cross-examination that there used to be intermittent

quarrels between Kalpana and Ganpati. That P.W. 4 and his relatives were

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sleeping in verandah of the hospital on the previous night. P.W. 4 has

categorically stated that police had inquired with him as to who assaulted

Ganpati and at that time itself he had disclosed that Ganpati was stabbed by

Respondent. According to him, police had inquired with him for an hour. He

has admitted that he was in the hospital till the dead body was handed over to

them. Police had then taken P.W. 4 to show knife. He is confronted with his

earlier statement to prove the omissions and contradictions. He has

categorically stated that he had informed the police that Respondent had

assaulted Ganpati with knife. A frail attempt is made to bring about an

omission in part of the statement of P.W. 4 that he had disclosed about the

chronology of events for the first time in the hospital. He has also stated that

compounder and Ananda had carried Ganpati to the room of the hospital. He

has proved the contents of the F.I.R.

8) P.W. 5 Netaji Suryawanshi owns a shop of footwear just next to the

hospital of Medical Officer. He has specifically deposed before the Court that

when he went to the hospital at about 8.30 a.m., he had seen that Respondent

was holding a knife in his hands and he was caught hold/apprehended by the

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police. P.W. 5 is also owner of shop at Vadgaon. When he was confronted

with his previous statement, he has specifically deposed before the Court that

his statement was not read over to him by the police. There are certain

inconsistencies in the statement of witnesses, however, they are not material

omissions. P.W. 5 has categorically stated that he has reached hospital after he

heard the commotion. He had heard people shouting "somebody is killed". He

had seen the police holding accused Respondent but had not inquired about

the same. In the cross-examination, P.W. 5 has stated that after one and half

hours of returning from hospital, P.S.I. and Jalandar Patil had been to his shop

and had recovered a knife under the bench in his shop. P.W. 5 has admitted

that he had not stated about the same before the police in his statement under

section 162 of Code of Criminal Procedure, 1973. It is also admitted that the

blade of the knife was stained with blood. He has denied suggestion that the

shop was closed on that day.

9) P.W. 6 Bhimrao Dhumal is the co-brother of deceased Ganpati i.e. 2nd

sister of Respondent was married to Bhimrao Dhumal. According to him, they

had learnt about the death of Kalpana when they had gone to village Chavare.

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The dead body of Kalpana was taken to the hospital but postmortem could not

be conducted at night. All the relatives were informed that postmortem would

be conducted on the dead body of Kalpana in the morning at 8.30 a..m. and

therefore, he had been to the hospital on the following day. P.W. 6 was also

sitting on a bench. He has also admitted that Pandurang was present in the

hospital. P.W. 6 was seated on a bench along with Respondent and Pandurang

was sitting on another bench. According to him, he along with Shivaji was on

their way to the exit and at that time, they heard the cry of Ganpati and he

turned back, he saw Respondent giving knife blows to Ganpati. Ananda had

immediately caught hold of Respondent. Respondent had escaped from the

clutches of Ananda and continued his assault on Ganpati. Respondent then

left the hospital but was apprehended by Jalandar and then police had taken

away accused Respondent.

10) It is elicited in the cross-examination that at the time when Ganpati had

cried, doctor and nurses were present. The learned Judge has recorded that the

witness was unwilling to give answers properly. The learned Judge has

arrived at a conclusion that the witness wanted to depose intentionally against

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the accused and also that his statement is not recorded by the police. It is

elicited in the cross-examination that on 5/5/1994, P.W. 6 was arrested by the

police and he was in the police station for one day. According to him, he was

kept in custody because it was suspected that he was the author of fatal blows

sustained by Ganpati.

11) P.W. 7 Ananda Chavan is cousin of deceased Ganpati. He has deposed

before the Court that he was present at the time of incident and that accused

was seated on bench next to him whereas Ganpati was sitting alone on one

bench. He has specifically deposed that Respondent suddenly got up and

inflicted knife blows on the chest of Ganpati. P.W. 7 attempted to restrain him

by catching hold of him however, he did not succeed as Respondent escaped

from his clutches and inflicted three more blows on Ganpati with the same

knife. He rushed out of the hospital and outside the hospital, his uncle

Jalandar caught hold of Respondent. P.W. 7 called upon the hospital staff.

Ganpati was taken in a room with the help of 2-3 persons. His own clothes

were also stained with blood and that the said clothes are attached by the

police in the course of investigation. Upon examination, doctor had declared

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Ganpati dead. P.W. 7 has identified the knife at Article no. 3 as the same

weapon with which Ganpati was assaulted by Respondent. It is elicited in the

cross-examination that the incident had lasted for about 3 minutes. P.W. 7 had

immediately caught hold of the accused who gave jerk to him and continued

to assault Ganpati. No one else had attempted to restrain Respondent from

assaulting Ganpati. He has reiterated in the cross-examination that Jalandar

Patil and one constable had taken away Respondent immediately. He has

admitted that he had not narrated the incidence to anybody on that day. It is

also admitted that the police had not shown Article no. 3 to the witnesses but

P.W. 7 has described the weapon before the police.

12) P.W. 8 Raghunath Gaikwad was police constable attached to Vadgaon

Police Station. On 5/5/1994 i.e. on the day of incident, P.W. 8 was present in

the hospital as postmortem on the dead body of Kalpana was to be performed.

At about 8.30 a.m. he heard the cries of one person, he rushed to the spot and

at that time, he had seen Ganpati lying in a pool of blood and one person who

was holding the knife was trying to run away whereas another person was

trying to catch hold of him. He then apprehended the person holding the

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knife. Somebody had taken out the knife from his hand. The person whom he

had caught hold gave his name as Respondent Baburao Patil. He was taken to

the Police Station. He has admitted in the cross-examination that when he

caught hold of the accused, he had only asked his name and the accused was

produced before the station house officer. P.W. 8 had given the information to

P.S.O. that Respondent had caused stab injuries with knife to Ganpati. After

the accused was produced before station house officer, police were sent to the

hospital for inquiry. It prima facie appears that ther are no material omissions

and contradictions in the evidence of P.W. 8. He has also admitted that at the

time of incident, he was in the room where case papers are issued and the said

room is adjacent to the verandah where the incident had occurred. That the

distance between the room and the scene of offence is 25-30 feet. It is also

admitted in the cross-examination that mob had gathered within few minutes

after the incident. He has also admitted that it had transpired in the course of

investigation, that Jalandar had taken the knife from the hands of the accused.

Investigating officer i.e. P.S.I. knew Jalandar. It is reiterated that Jalandar had

taken away the knife. He has also admitted that he had not inquired about the

father or brother of deceased Kalpana.

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13)        P.W. 9 Jalandar Patil is uncle of accused Respondent. He has deposed

before the Court that he was present in the hospital at about 8.30 a.m. He had

also heard the commotion. He has categorically stated that he learnt about the

assault upon Ganpati by Krishna and he therefore caught hold of Respondent

in order to prevent him from assaulting others and within no time, police had

caught hold of Respondent. P.W. 8 has categorically admitted that he had

taken out knife from the hand of the accused and kept it in cobbler's shop

nearby. Knife was stained with blood. Police had recovered the knife from the

shop. It is elicited in the cross-examination that P.W. 8 was not on visiting

terms with Ganpati. A stray suggestion was given as to whether Article no. 3

was seen in the house of Ganpati by P.W. 8 and he has succumbed to the

suggestion positively. He has further elaborated that Ganpati used to keep

weapon with him because of the nature of his business. According to P.W. 8,

Ganpati was apprehensive that Respondent would file a complaint against

him for dowry death of deceased Kalpana. P.W. 8 had promised to persuade

Respondent not to file prosecution against Ganpati but Ganpati did not trust

P.W. 8. According to P.W. 8 distance between benches where accused and

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deceased were seated was about 7-8 feet. There was blood on the bench were

Respondent was seated and the scabbard was lying on the bench where

Ganpati was sitting.

14) Witness was declared hostile as he had resiled from his statement

recorded under section 161 of Code of Criminal Procedure, 1973.

15) P.W. 10 Suresh Bhosale had registered the offence i.e. crime no. 55 of

1994. He has deposed before the Court that Respondent was arrested on the

same day and the arrest Panchanama is at Exhibit 14. His blood stained

clothes were attached. He had recorded statements of 7 witnesses and that

Jalandar Patil had produced blood stained knife which was marked at Article

3 from Raj footwear Vadgaon. Clothes of Ananda Chavan were also attached.

Panchanama at Exhibit 18. The witness has proved the omissions and

contradictions in the statement of witnesses. He has candidly stated in the

cross-examination that there is no record in the police station to show that

Ganpati was indulging into distilling illicit liquor. It is further elicited in the

cross-examination that accused was brought in the police station at about

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9.30-9.45 am and by then police had received information regarding the

incident. P.W. 10 had not taken any entry in the station diary to that effect. He

has also admitted that the statement of the complainant was recorded in the

police station. There is a delay in drawing arrest Panchanama since there was

mob and accused had to be rescued from mob fury. Arrest Panchanama was

recorded later. It is also admitted by the witness that scabbard was recovered

from a public place.

16) Upon perusal of the evidence adduced by the prosecution on record, it

is clear that this is a case of direct evidence. There are more than three eye

witnesses to the incident. The presence of the accused at the scene of offence,

armed with the weapon is also proved by the prosecution beyond reasonable

doubt. The substantive evidence of P.W. 4 i.e. father of deceased Ganpati is a

sterling testimony. It is unimpeachable. He has categorically deposed before

the Court that when the police had inquired with him about the injury

sustained by Ganpati, He had instantly disclosed to the police that Ganpati

was stabbed by Respondent. The argument advanced by the learned counsel

for the respondent that the respondent has been falsely implicated does not

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hold good ground as there was no time lost in disclosing the fact to the police,

nor there was any time to falsely implicate Respondent as there was no

prelude to the incident showing that Respondent and Ganpati had any quarrel

or the altercation or that P.W. 4 had an axe to grind against Respondent. The

Court cannot be oblivious of the fact that P.W. 4 happens to be a rustic

witness.

17) It is revealed in the post mortem report that deceased had sustained as

many as four stab injuries. Cause of death was stab injury to lung and heart.

There is evidence on record to show that after the first blow was given,

Ananda had attempted to catch hold of the accused and restrain him from

causing further injury, however, accused had released himself from the

clutches of Ananda and continued to give stab injuries on the vital parts of the

body of Ganpati which clearly established the intention and knowledge of

cause of death of Ganpati. The injuries sustained by Ganpati are as follows:

"(1) Stab injury on chest on left side in 4 th intercastal space - 2.5 cm medial to Left breast oblique short edges 2.5 cm X 1½ cm X 7.5 cm. Age 4-6 Hrs.

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(2) Stab injury on chest Rt. side 2nd intercostal space 1 cm lateral to lateral border of starnum. 2.5 cm X 1 cm X 8 cm. edges sharp. Age 4-6 hours.

(3) Stab injury on Lt. supraclavicular fossa on upper margin on left clavicle 3 cms lateral to stermoclavicle joint oblique 2.5 X 1 ½ X 4.5 cms. margin sharp age 4-6 hours.

(4) Stab injury on face on left side below mandible oblique extending towards right ear 2 X 1 X 3 cms. sharp edges age 4 to 6 hrs. All injuries 1 to 4 are antemortem injuries.Nature - Grievous injuries.

18) The learned APP submits that the very fact that accused/respondent had

come to the hospital armed with a deadly weapon would indicate that the

assault on Ganpati was pre-meditated act.

19) The learned counsel for the respondent vehemently submits that

accused/respondent has been falsely implicated by P.W. 4. In fact, P.W. 4

disclosed to the police that Ananda and the compounder in the hospital had

taken Ganpati to a room in the hospital.

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20)        P.W. 5 has also specifically disclosed that soon after the incident, he

had seen the police taking away Respondent. This by itself would indicate

that soon after the incident, it had transpired that Ganpati was stabbed by

Respondent.

21) P.W. 6 Bhimrao Dhumal has also disclosed to the police that upon

hearing the cry of Ganpati, his attention was drawn towards Ganpati and at

that time, he had seen Respondent giving knife blows to Ganpati. It is also

clear that P.W. 7 Ananda had caught hold of Respondent to restrain him from

assaulting further, however, Respondent had escaped from the clutches of

Ananda and continued his assault on Ganpati. When Respondent was

attempting to flee from the spot, he was apprehended by Jalandar and handed

over the police. P.W. 7 Ananda is also an eye witness and has narrated the

incident as it had occurred. The fact that he had caught hold of Respondent is

further fortified by the fact that his clothes were stained with blood and were

also attached by the police in the course of investigation. He has identified the

knife with which Ganpati was assaulted.

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22)        Upon perusal of evidence adduced by the prosecution, by no stretch of

imagination, there is room to even doubt that Respondent i.e. respondent is

the author of injuries sustained by Ganpati who had succumbed

instantaneously. No other view is possible but to hold that respondent has

committed offence punishable under section 302 of the Indian Penal Code.

The omissions and contradictions relied upon by the learned Sessions Judge

are not material and therefore, the testimony of the complainant stands

unshattered.

23) The learned Sessions Judge has committed a grave error in drawing an

adverse inference on the basis of material that P.W. 6 Bhimrao was arrested

on 05/05/1994 after the offence was registered against Respondent. Upon

perusal of the records and the substantive evidence, it is clear that no report

disclosing cognizable offence was filed against Bhimrao. It is not known as to

why he was arrested. It cannot therefore be held that Bhimrao was arrested for

having caused fatal injuries to Ganpati. The very fact that Respondent was

taken in police custody soon after the incident and that too after he was

apprehended by Jalandar makes it amply clear that there was no room for

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doubt that Respondent is the author of the fatal injuries sustained by Ganpati.

Observations of the learned Sessions Judge that:

"Arrest of P.W. 6 Bhimrao on the next day i.e. on 05/05/1994 clearly shows that accused Respondent was not the assailant or the eye witnesses P.W. 4 Pandurang P.W. 6 Bhimrao and P.W. 7 Ananda have not witnessed the actual assault".

are unwarranted in the facts of the case.

24) It is a matter of record that even P.W. 6 Bhimrao has not deposed before

the Court that he had been arrested for having caused injuries to Ganpati or

that he was interrogated for the said purposes. An adverse inference therefore

drawn is unwarranted and unjustified. Moreover, the defene of the accused

was that Ganpati had sustained self inflicted injuries. The said defence is not a

plausible defence. The learned Sessions Judge has not assigned any cogent

and convincing reason for acquitting the accused. This was a case of direct

evidence. Suspicion cannot give probative force to testimony which in itself is

insufficient to establish or to justify an inference of the act of the accused.

Suspicion cannot be made foundation to replace proof.

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25)        Section 3 of the Indian Evidence Act defines evidence. The word

conclusive evidence is not defined but it contemplates that when a fact

appears to be conclusive proof, the Court shall on proof of one fact regard

other facts as proved and shall not allow evidence to be given for the purpose

of disproving it. The learned Sessions Judge has also committed a grave error

in not placing implicit reliance upon the evidence of P.W. 4 Pandurang and

has taken into consideration the contentions in the F.I.R. In fact, F.I.R. is not a

substantive evidence. The fact that the name of a witness is not mentioned in

the F.I.R. does not by itself affect the veracity of evidence. There may be no

hard and fast rule that the names of all witnesses should be mentioned in the

F.I.R. The evidence of eye witnesses if accepted is sufficient to warrant

conviction. Merely because eye witnesses are close relatives and therefore,

interested witnesses, their evidence cannot be brushed aside. It has to be

decided in the facts and circumstances of the case. In the present case, all the

eye witnesses were actually present in the hospital and therefore, they cannot

be treated as got up witnesses. Merely because their narration of facts does

not fully accord with the sequence of events, their testimony cannot be

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ignored.

26) In the case of Yogesh Singh V. Mahabeer Singh and Ors [2017 CRI.

L.J. 291] the Hon'ble Apex Court has held as follows:

"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence".

27) The learned counsel for the respondent submits that this is appeal

against acquittal and therefore, Court shall not interfere with the findings

recorded by the learned Sessions Judge. In fact, in a given set of facts, only in

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the eventuality that another view is possible and that there is room for doubt,

Appellate Court, as a matter of prudence should not interfere with the

acquittal. The Hon'ble Apex Court in a catena of decisions has held that

whenever two views are possible, the Court shall take into consideration the

view in favour of the accused but in the present case, it is crystal clear that

respondent herein is the author of fatal injuries which resulted into

instantaneous death of Ganpati and the same is established by the prosecution

beyond reasonable doubt. It would not be possible to take another view. The

findings recorded by the learned Sessions Judge are misplaced and tilt more

towards presumptions.

28) In the case of State of Uttar Pradesh Vs. Nahar Singh (Dead) & Ors

[(1998) 3 SCC 561] the Hon'ble Apex Court has observed as follows:

"If on re-assessment of the evidence, the appellate court comes to the conclusion that the guilt of the accused is established, the fact that the appeal is against the acquittal will be immaterial. However, if two views are possible, the court, having regard to the basic principle that presumption of innocence of the accused gets strengthened by the fact of his acquittal by court, should take the view that supports the

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acquittal of the accused".

29) In the case of State of U.P. Vs. Krishna Gopal and Anr. [(1988) 4

SCC 302] the Hon'ble Apex Court had rightly summarised the principles

holding that the plenitude of the power of the Appellate Court to review and

re-appreciate the evidence cannot be limited under the supposed rule that

unless there are 'substantial' or 'compelling' reasons or 'very substantial

reasons' or 'strong reasons' findings in a judgment of acquittal should not be

interfered. There is, thus no immunity to an erroneous order from a strict

appellate scrutiny.

30) In the case of S. Govindaraju Vs. State of Karnataka [(2013) 15

Supreme Court Cases 315] the Hon'ble Apex Court has observed as follows:

"It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the

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core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence".

31) In the present case, there is cogent evidence to show that the

consistency in the narration of the eye witnesses which point towards the guilt

of the accused.

32) In the case of Gurbachan Singh Vs. Satpal Singh and others [A.I.R.

1990 SC 209] the Hon'ble Apex Court has observed as follows:

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"The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law".

33) There is distinction between presumption of Law and presumption of

Facts. Presumption of Law are rules of Law and part of the Law itself. The

Court may draw inference whenever requisite facts are before it. In the

present case, the learned Sessions Judge has drawn an adverse inference on

the basis of certain unestablished facts. Presumption of fact cannot be drawn

on mere conjecture. By taking into consideration the fact that P.W. 6 Bhimrao

Dhumal was arrested, the learned Sessions Judge has presumed that there

could be some accused other than respondent.

34) This Court is of the opinion that no other view is possible but to hold

that respondent is guilty of offence under section 302 of the Indian Penal

Code and therefore, acquittal recorded by the learned Sessions Judge deserves

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27 404.95 apeal

to be quashed and set aside. When we have come to the conclusion that the

complicity of the respondent is the only possible view, the fact that the appeal

is of the year 1995 is no ground to confirm the erroneous view taken by the

Trial Court. Hence, following order.

                                                              ORDER

(1)        Criminal Appeal No. 404 of 1995 is allowed.



(2)        The Judgment and Order dated 25th January, 1995 passed by the 3rd

Additional Sessions Judge, Kolhapur in Sessions Case No. 126 of 1994,

acquitting the accused-respondent of the offence punishable under Section

302 of the Indian Penal Code, is hereby quashed and set aside.

(3) The respondent is convicted for the offence punishable under Section

302 of the Indian Penal Code and is sentenced to imprisonment for life and

fine of Rs.1,000/- in default further R.I. for one month.

(4)        The period of detention pending trial and pending appeal is set off



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                                                                 28                                                          404.95 apeal

under section 428 of the Code of Criminal Procedure.

(5) The 3rd Addl. Sessions Judge, Kolhapur shall issue bailable warrant to

the respondent calling upon him to surrender within three months.

(6) The respondent is hereby granted three months time to surrender before

the 3rd Addl. Sessions Judge, Kolhapur.

(7) In the eventuality that the respondent does not surrender within three

months, the learned 3rd Addl. Sessions Judge, Kolhapur, shall issue non-

bailable warrant against the respondent - Krishnath Baburao Patil, calling

upon him to serve the rest of the sentence.

The Appeal stands disposed of.

   (SMT. SADHANA S.JADHAV, J.)                                                                           (A.S.OKA, J.)




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