Bombay High Court
The State Of Maharashtra vs Satish Narayan Lohar And Ors on 14 September, 2017
Bench: A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1030 OF 2008
Ravindra Rangrao Ingale. ]
Age - 35 years, Occupation - Agriculture, ]
Residing At : Gadhinglaj, ]
Taluka - Gadhinglaj, District - Kolhapur. ]
(Presently lodged at Central Jail). ] ... Appellant
Versus
The State of Maharashtra ] ... Respondent
ALONG WITH
CRIMINAL APPEAL NO.805 OF 2008
The State of Maharashtra. ] ... Appellant
Versus
1. Satish Narayan Lohar, ]
Age - 45 years, ]
2. Samir alias Shamshuddin Abdul Hamid ]
Jamadar, ]
Age - 23 years, ]
3. Riyaz Kutbuddin Kazi, ]
Age - 23 years. ] ... Respondents
Dr. Yug Mohit Choudhry a/w Payushi Roy for Appellant in Cri. Appeal
No.1030 of 2008.
Mr. H. J. Dedhia, APP for State / Appellant in Cri. Appeal No.805 of
2008 and for State / Respondent in Cri. Appeal No.1030 of 2008.
Ms. Swapna Kode for Respondents in Cri. Appeal No.805 of 2008.
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CORAM :- A. A. SAYED &
SARANG V. KOTWAL, JJ.
RESERVED ON :- 01 SEPTEMBER, 2017
PRONOUNCED ON :- 14 SEPTEMBER, 2017
JUDGMENT ( PER : SARANG V. KOTWAL, J.) :-
1. Both these Appeals arise out of the Judgment and Order
dated 06/03/2008 passed by the Additional Sessions Judge,
Gadhinglaj, in Sessions Case No.6 of 2007 on his file. Hence, both
these Appeals are disposed off by this common Judgment and Order.
2. Criminal Appeal No.805 of 2008 is filed by the State of
Maharashtra against the original accused nos.2, 3 and 4 who were
acquitted by the said impugned Judgment from the charges under
Section 302 read with 34 of the IPC. Criminal Appeal No.1030 of
2008 is preferred by the original accused no.1 challenging his
conviction and sentence under Section 302 of the IPC. The accused
no.1 was sentenced to suffer R.I. for life and to pay a fine of
Rs.5,000/- and in default of payment of fine, to suffer further R.I. for
three months.
3. For the sake of convenience, the Appellant in Criminal
Appeal No.1030 of 2008 and the Respondents in Criminal Appeal
No.805 of 2008 are referred to as the accused at their serial numbers
in the Sessions Case. The accused no.1 - the convicted accused is
Ravindra Rangrao Ingale, accused no.2 is Satish Narayan Lohar,
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accused no.3 is Samir alias Shamshuddin Abdul Hamid Jamadar and
accused no.4 is Riyaz Kutbuddin Kazi.
4. All these accused faced the charge under Section 302 read
with 34 of the IPC. According to the prosecution case, all these
accused, in furtherance of their common intention, committed murder
of one Kalinga Bala Lohar, aged 94 years, on 25/03/2006 at about
8.45 a.m. on the premises of Shri Ram Mandir at Village - Gadhinglaj,
District - Kolhapur.
5. The prosecution case, in brief, is as follows :
Deceased Kalinga Lohar fought a long drawn legal battle
up to the Supreme Court from the year 1963 in respect of the land
bearing R.S.No.96 situated at Gadhinglaj against 22 persons.
Finally, he got possession of the said land on 03/02/2006 through
Court. The land was occupied by different persons. They had
constructed houses and shops in the said land and had kept their
articles. On 24/03/2006, deceased Kalinga sought police protection
to demolish the premises on the said land with a JCB machine. At
that time, the occupants requested for some time to vacate the
premises and remove the articles. The said Kalinga gave them a day's
time to remove the articles. According to the prosecution case, on the
next day i.e. on 25/03/2006 at about 8.45 a.m., Kalinga was
murdered in the Shri Ram Temple where he used to perform Pooja.
According to the prosecution case, the accused nos.2, 3 and 4 held
him and the accused no.1 cut his throat with a sickle. The incident
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was witnessed by Kalinga's grandson PW 1 Sushil Lohar and another
near relative PW 3 Shankar Sutar. The police were informed by PW 3.
Kalinga was removed to the hospital where he was declared dead. PW
1 Sushil Lohar's statement was recorded in the hospital and was
treated as FIR. The FIR was lodged vide C.R.No.28 of 2006 on
25/03/2006 at Gadhinglaj Police Station at 9.45 a.m. against all these
four accused. The accused were arrested within a few days.
Statements of various witnesses were recorded, various panchanamas
were carried out. During the post-mortem examination conducted by
Dr. Shailesh Deshpande, who was examined as PW 6; he noticed that
there was a cut throat injury having dimensions 15 cm X 6 cm on the
anterior side of neck below thyroid cartilage extending from right side
of neck to left side. There were 3 more incised wounds on the left
palm including a traumatic fracture of the left ring finger. The cause
of death was mentioned as shock and haemorrhage due to cut throat
injury (unnatural). Based on this investigation, charge-sheet was filed
and the case was committed to the Court of Sessions for trial and was
tried as Sessions Case No.6 of 2007 before the learned Additional
Sessions Judge, Gadhinglaj, Kolhapur.
6. During trial, the prosecution examined 13 witnesses. PW
1 - Sushil Ghansham Lohar and PW 3 - Shankar Janaba Sutar were the
eye witnesses. PW 2 - Laxman Annappa Bamblade was the panch for
the inquest panchanama. PW 4 - Shobha Ghansham Lohar was the
daughter-in-law of the deceased and mother of PW 1. PW 5 - Rajaram
Annappa Jadhav was the panch who was present during the arrest
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panchanama in respect of accused no.1 - Ravindra Ingale and accused
no.4 - Riyaz Kazi, on 26/03/2006. He was also a panch for the arrest
panchanama of the accused no.3 - Sameer Jamadar on 31/03/2006.
PW 6 - Dr. Shailesh Suresh Deshpande had conducted post-mortem
examination on the dead body of the deceased, as mentioned earlier.
PW 7 - Amit Prakash Balnaik was a panch for the spot panchanama
but he did not support the prosecution case. PW 8 - Kallappa Srikant
Kamble was the other panch who was present when the spot
panchanama was carried out. In his cross-examination, this witness
has given some answers which have important bearing on this case
whereby he has stated that PW 1 was with him at the relevant time in
his house when the offence was supposed to have been committed.
PW 9 - Jotiba Ganpati Mohite was the panch in whose presence a
sickle was recovered at the instance of the accused no.1 from a well in
the land of one Rajendra Mandarekar. PW 10 - Sahebali Babasaheb
Wantmure was examined to prove seizure of the clothes worn by the
accused nos.1 and 4 on 28/03/2006 but he has not supported the
prosecution case. PW 11 - Pundlik Sattu Jadhav was examined as a
panch for recovery of clothes at the instance of accused no.2 from his
house but even this witness did not support the prosecution case. PW
12 - PI Prakash Khandu Gharge was the Investigating Officer. PW 13 -
Dattatraya Janardan Rajbhoj had conducted some part of the initial
investigation including carrying out inquest panchanama and spot
panchanama. Besides this, the prosecution produced CA reports in
respect of the seized articles and according to the prosecution case,
the blood found on the clothes of the deceased was of 'A' group which
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was also found on the shirt seized from the accused no.1 and the
sickle recovered at his instance. The CA report also indicates that the
shirt seized from the accused no.2 shows presence of human blood but
the blood group was inconclusive.
7. The defence of the accused was that of total denial. After
recording and appreciating the evidence and considering the
arguments of both sides, the learned trial Judge was pleased to
convict the accused no.1 under Section 302 of the IPC and was
pleased to acquit the other accused as mentioned earlier.
8. We have heard Dr. Yug Mohit Choudhry, learned Advocate
for the Appellant in Criminal Appeal No.1030 of 2008, Ms. Swapna
Kode for Respondents in Criminal Appeal No.805 of 2008 and Mr. H.
J. Dedhia, learned APP, on behalf of the State of Maharashtra in both
these Appeals. With their assistance, we have read the entire evidence
and we have gone through the record and proceedings.
9. The prosecution evidence heavily relies on the evidence of
the two eye witnesses i.e. PW 1 - Sushil Lohar and PW 3 - Shankar
Sutar. PW 1 - Sushil Lohar, in his deposition, has stated that his
grandfather Kalinga Lohar had fought a long legal battle against the
22 persons since the year 1963 and ultimately succeeded in the
Supreme Court. Kalinga Lohar got possession of the land on
03/02/2006 and on 24/03/2006, he was about to demolish the
existing premises on the land but did not go ahead on the request of
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the occupants and gave them a day's time to vacate the land. This
witness has deposed that on 25/03/2006 at about 7.30 a.m., he had
gone to Shri Ram Temple with his grandfather Kalinga for performing
Pooja. At about 8.30 to 8.45 a.m., he went back to his house which
was situated about 250 ft. away from the temple, to keep the articles
of Pooja in the house. He returned within five minutes to the temple
and saw that all the accused had surrounded his grandfather.
Accused nos.2, 3 and 4 were holding his grandfather and the accused
no.1 cut his throat with the sickle and on seeing PW 1, all the accused
ran away. PW 1 was scared. He returned to his house. He shouted
for help, informed the incident to his mother and uncle and thereafter
again rushed to the spot. He was followed by his mother and uncle.
When he reached the spot again, he saw PW 3 Shankar Sutar was
present there and the dead body of his grandfather was lying there.
PW 3 Shankar Sutar informed the police. Police came on the spot.
The dead body of his grandfather was removed to Government
Hospital and this witness had accompanied the dead body. His report
was recorded in writing and which was treated as FIR and is exhibited
at Exh.36 before the trial Court. The FIR was promptly recorded at
9.45 a.m.
10. PW 3 - Shankar Sutar, in his deposition, has stated that
there was a dispute between Kalinga and the other persons which was
decided in Kalinga's favour. This witness was a near relative and was
son-in-law of the son of the deceased. He has further deposed that on
25/03/2006, he had gone to the house of deceased Kalinga at about
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8.30 a.m. but he was not found there and therefore he went towards
Shri Ram Temple and when he reached near the gate of the temple,
he saw the accused assaulting the deceased. Though he has given a
specific role to the accused no.1 that he had given blow of sickle on
the neck of the deceased, this part of his evidence is in the nature of
omission. However, the fact remains that except for this specific
allegation, his evidence was consistent in respect of the assault on the
deceased, at least in respect of the presence of the accused at the spot
when they had assaulted the deceased. Thereafter, he deposed that
he had informed the police. In the cross-examination, he has stated
that after the assault, he went near the deceased and at that time, the
deceased was uttering words to the effect that he was murdered. His
statement was recorded on the next day though he was with PW 1
throughout the day. Dr. Choudhry submitted that this witness is not a
truthful witness as he has stated that the deceased had uttered some
words after his throat was cut, which is an impossibility. In this
regard, the Medical Officer was not asked as to whether the deceased
could have uttered a few words. In any case, this part of his
deposition does not destroy his narration of the main incident which
we find to be sufficiently reliable.
11. Besides these two eye witnesses, there are two significant
witnesses examined by the prosecution who are relevant to appreciate
the evidence of PW 1 and PW 3 and those witnesses are PW 4 -
Shobha Lohar who is the mother of PW 1 and PW 8 - Kallappa Kamble
who, though was a spot panch, has also stated about his presence at
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8.30 a.m. in the house of PW 1 in his company. PW 4 - Shobha Lohar
was the daughter-in-law of the deceased and she has deposed that
after the PW 1 kept the articles of Pooja in the house and went back to
the temple, some school boys came to their house and informed that
her father-in-law was murdered and then PW 1 also came to her
house and then they rushed to the spot of incident to find that the
deceased was lying at the corner of the temple.
12. PW 8 - Kallappa Kamble's evidence is curious in the
context of the other evidence. This witness was one of the panchas
for the spot panchanama and was examined as such by the
prosecution. While in the examination-in-chief he has mentioned
about conducting the spot panchanama, in the cross-examination, he
has stated that he had gone to the house of the PW 1 at about 8.00 to
8.3 a.m. and met PW 1 there. He has stated that he had breakfast and
tea with PW 1 and they were sitting in the front hall of the house and
at that time, PW 4 came shouting in the house and was saying that
Kalinga was killed and thereafter all of them rushed towards the
temple. Thus, his cross-examination indicates that the PW 1 might
not have been at the spot when the incident had taken place. The
evidence of this witness needs to be appreciated very carefully.
13. Dr. Choudhry, learned Advocate for Appellant in Criminal
Appeal No.1030 of 2008, has attacked the evidence of the eye
witnesses on various grounds. He has submitted that both these
witnesses do not speak about each other's presence near the spot of
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incident when the actual assault took place. Dr. Choudhry has
submitted that the medical evidence shows that there were 3 injuries
on the left palm of the deceased and none of these witnesses has
explained these injuries. Dr. Choudhry has submitted that the
conduct of the PW 1 did not appear to be natural as there was no
reason for him to return to his house for a short while and then again
to go back to the temple at about 8.45 a.m. It was also argued that
the evidence of PW 3 is mostly in the nature of omission and his
statement was recorded on the next day and the delay in recording of
his statement has remained unexplained. He has submitted that
though both of them claimed to have seen the incident, the
information given to the police at first in point of time by the PW 3,
which was reduced into writing in the station diary, did not reveal the
names of the assailants. Dr. Choudhry has further pointed out that
the PW 1 has stated that his statement was recorded after the post-
mortem examination. According to Dr. Choudhry, the post-mortem
examination was concluded at 1.00 p.m. and therefore, his statement
must have been taken after 1.00 p.m. and the timing of 9.45 a.m.
mentioned in the proforma of the FIR is manipulated. Dr.Choudhry
has further submitted that the evidence of PW 4 and PW 8 run
contrary to the version of PW 1 and, in fact, the deposition of PW 8 in
the cross-examination destroys the evidence of PW 1 and shows that
the PW 1 was not present at the spot at the time of the incident at all.
14. After reading the deposition of these witnesses, we find
that PW 1 and PW 3 are natural witnesses. Their evidence is reliable.
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PW 1 has given reasonable details of the incident. Though PW 3's
evidence shows that he had not attributed a specific role to the
accused in his statement before the police, but his evidence on the
assault on the deceased is consistent. Dr. Choudhry tried to submit
that since both these witnesses had started from the house of PW 1 to
go towards the temple and then had seen the incident, they should
have been at the same spot to see the incident but since there is no
reference of their presence in each other's deposition, it should be
inferred that neither of them was present at the spot. The evidence
shows that there was a footpath between the house and the temple
and there was also a road passing from the house to the temple.
Therefore, it cannot be presumed that both of them travelled on the
same road. Moreover, the PW 3 was on his motorcycle and the
footpath connecting the house to the temple was narrow. Therefore,
obviously, both of them had travelled through different routes and
therefore, it is not unnatural for them not to have seen each other
when the incident had taken place. The fact remains that both of
them have deposed that when they reached near the dead body, that
time they had seen each other and only thereafter the PW 3 had
informed the police. That information was received by the police at
9.00 a.m. Thereafter immediately the police reached the spot and
sent the dead body to the hospital. PW 1 had accompanied the dead
body and his statement was recorded in the hospital and thereafter
the FIR was immediately lodged. The FIR was lodged at 9.45 a.m.
and therefore there was no scope to infer that there was deliberation
and consultation amongst the prosecution witnesses to involve the
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accused falsely in the case. Moreover, the inquest panchanama was
conducted between 10.00 a.m. to 11.0 a.m. on 25/03/2006 which
also mentions the C.R.No.28 of 2006 at Gadhinglaj Police Station.
Which means that, at 9.45 a.m. itself, the offence was registered and
there was no manipulation. The names of the accused were disclosed
by PW 1 immediately within a short span of time. In his cross-
examination, the PW 1 has stated that his statement was recorded
after the post-mortem. This, in the context of the sequence narrated
by him, can only mean that it was some other statement and not the
statement which was treated as FIR. Because in the examination-in-
chief, he has stated as "my report was recorded in the hospital itself.
My report now shown to me is the same...." It is marked as Exh.36.
In the cross-examination, it was not specifically asked if the statement
which was recorded after the post-mortem was Exh.36 itself.
Therefore, we do not find force in the submission that the first
statement of PW 1 was recorded after the post-mortem was over at
1.00 p.m.
15. The arguments that PW 4 does not support the version of
the PW 1 is not correct because she has deposed about how PW 1 had
come back from the temple after Pooja and then again gone to the
temple. She has further deposed that PW 1 again came back to the
house and all of them went to the spot of incident. Dr. Choudhry
submitted that it was not the PW 1 who informed her about the
incident but there were some school boys who had informed her about
the incident. He has also submitted that there was discrepancy as to
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at what point of time, the PW 1 has informed her about the incident.
This discrepancy hardly goes to the root of the matter. The fact
remains that PW 1 and PW 4 - Shobha herself rushed to the spot
together after the PW 1 had come home to inform her about the
incident. Thereafter, the police came on the spot and what PW 1 told
the police soon thereafter assumes greater importance and there the
names of the assailants are immediately disclosed.
16. Dr. Choudhry heavily relied on the deposition of PW 8,
particularly about his statement that this witness PW 8 was with PW 1
at around 8.30 a.m. in his house and at that time, PW 4 came
shouting and informing about the incident which means that the PW 1
had not seen the incident and was with PW 8 in his house. According
to Dr. Choudhry, this deposition completely shatters the prosecution
case. While it is true that PW 8, in his cross-examination, has given
answers favouring the accused, we do not find that evidence of this
witness is of such high standard that it can be relied on without
corroboration. First of all, this witness was a panch for the spot
panchanama. He claims to be in service of the PW 1 at the relevant
time. He was examined to prove the spot panchanama. Suddenly in
the cross-examination, he has given a twist to the entire story. This
witness obviously was knowing the concerned parties and mainly the
PW 1. PW 1 had shown the spot when the spot panchanama was
carried out. This witness was aware that the PW 1 had lodged the FIR
as the spot panchanama mentions C.R.No.28 of 2006. In that view of
the matter, he could have informed the police that the PW 1 was with
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him throughout and had not seen the incident. Till his deposition in
the Court on 06/02/2008 i.e. nearly for two years, he has remained
silent. At least there is nothing on record to show that any efforts
were made by him to approach the authorities to point out that the
PW 1 could not have seen the incident and had implicated the accused
falsely. Dr.Choudhry submitted that it cannot be inferred that this
witness did not approach the police or any authority to put forth his
case and moreover, the evidence of this witness has thrown
reasonable doubt on the prosecution case. Looking at the manner in
which these statements are brought on record in the cross-
examination, we do not feel it safe to rely on his evidence without any
corroboration. We do not find any piece of evidence which
corroborates the version given by the PW 8. There is not a single
suggestion given to any of the witnesses that the PW 8 was present in
the house with the PW 1 when the incident had taken place and that
PW 1 could not have seen the incident. Dr. Choudhry submitted that
by the time PW 8 was examined, the other material witnesses were
already examined and therefore there was no occasion to give such
suggestion to any of the witnesses. However, even after the evidence
of this witness was recorded, no questions were put to the I.O. by the
defence in that behalf. Therefore, we are not inclined to rely on the
evidence of PW 8 to hold that PW 1 could not have witnessed the
incident of assault.
17. Apart from these eye witnesses, there are other
circumstances in the nature of recovery. PW 9 - Jotiba Mohite was
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examined as a panch in whose presence the accused no.1 made a
statement leading to recovery of the murder weapon i.e. sickle, from
inside a well. According to him, on 30/03/2006, he was called to the
police station and before him the accused no.1 made a statement that
he was willing to show a well where he had thrown the sickle.
Thereafter the accused no.1 led the police and panchas to the said
well belonging to one Rajendra Mandarekar at Gadhinglaj. One
swimmer namely Dattatrya Patil was called to take out the sickle from
the well and in two to three attempts he took out the sickle from
inside the water. The said sickle, on chemical analysis, showed
presence of human blood of 'A' group. Dr. Choudhry submitted that
the sickle was taken out from the water after 5 days of the incident
and it was highly impossible that it would have retained the traces of
blood which could be ultimately analyzed. More importantly, he has
pointed out that this witness PW 9 has admitted in his cross-
examination that PI Ghatge had told the panchas that the accused
no.1 was going to take out sickle from the well of Mandarekar and
accordingly panchanama was to be drawn. In this view of the matter,
it is quite clear that the police were aware of the place from where the
sickle was to be taken out. Therefore, the statement allegedly made
by the accused no.1 could not have led to the discovery of the sickle.
Therefore, it does not satisfy the requirement of Section 27 of the
Indian Evidence Act and, therefore, such recovery cannot be relied on.
18. PW 5 - Rajaram Jadhav was examined as a panch who
was present when the accused nos.1 and 4 were arrested on
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26/03/2006. He was also a panch when the accused no.3 was
arrested on 31/03/2006. When the accused no.3 was arrested, his
clothes were seized in the presence of this witness PW 5. The other
panch in this respect was PW 11 - Pundlik Jadhav in whose presence
the clothes of the accused no.2 were seized from his house at his
instance. The other panch PW 10 was examined to prove the seizure
of clothes of the accused nos.1 and 4 on 28/03/2006. In this
connection, it is important to know that the accused no.1 was arrested
on 26/03/2006 but his clothes were seized on 28/03/2006. That, by
itself, raises suspicion about this seizure. The CA report shows that
the shirt of the accused no.1 was showing presence of blood of 'A'
group. The T-shirt of the accused no.2 showed the presence of human
blood but its grouping was inconclusive. Therefore, the seizure of the
clothes and their CA report is not a circumstance in favour of the
prosecution. Therefore, we are inclined to ignore the circumstance of
seizure of clothes of the accused and recovery of sickle at the instance
of the accused no.1.
19. In spite of the above infirmities in the evidence, we are
inclined to believe the eye witnesses PW 1 - Sushil Lohar and PW 3 -
Shankar Sutar. We are satisfied that their evidence is trustworthy and
reliable.
20. The next question arises as to whether the acquittal of
accused nos.2, 3 and 4 can be sustained. It is well settled that the
finding of acquittal recorded by the trial Court in favour of the
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accused cannot be lightly set aside. The presumption of innocence in
favour of the accused is reaffirmed by acquittal by the trial Court.
However, if such finding is perverse, then the appellate Court can
reverse such finding of acquittal. It is also well-settled that merely
because two views were possible, finding of acquittal should not be set
aside. The Hon'ble Supreme Court has reiterated this principle in the
case of Govindraju alias Govinda Vs. State (By Sriramapuram
Police Station) and Another1. The Hon'ble Supreme Court, in
paragraph nos.10 to 13, has held thus :-
"10. The law is well-settled that an appeal against an
order of acquittal is also an appeal under the Code
of Criminal Procedure, 1973 (for short 'CrPC') and
an appellate Court has every power to re-appreciate,
review and reconsider the evidence before it, as a
whole. It is no doubt true that there is presumption
of innocence in favour of the accused and that
presumption is reinforced by an order of acquittal
recorded by the trial Court. But that is the end of
the matter. It is for the Appellate Court to keep in
view the relevant principles of law to re-appreciate
and reweigh the evidence as a whole and to come to
its own conclusion on such evidence, in consonance
with the principles of criminal jurisprudence. (Ref.
Girja Prasad v. State of M.P.2)
11. Besides the rules regarding appreciation of evidence,
the Court has to keep in mind certain significant
principles of law under the Indian Criminal
Jurisprudence, i.e. right to fair trial and
presumption of innocence, which are the twin
essentials of administration of criminal justice. A
person is presumed to be innocent till proven guilty
1 (2012) 4 Supreme Court Cases 722
2 (2007) 7 SCC 625 : (2007) 3 SCC (Cri) 475
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and once held to be not guilty of a criminal charge,
he enjoys the benefits of such presumption which
could be interfered with by the courts only for
compelling reasons and not merely because another
view was possible on appreciation of evidence. The
element of perversity should be traceable in the
findings recorded by the Court, either of law or of
appreciation of evidence.
12. The Legislature in its wisdom, unlike an appeal by
an accused in the case of conviction, introduced the
concept of leave to appeal in terms of Section 378
CrPC. This is an indication that appeal from
acquittal is placed at a somewhat different footing
than a normal appeal. But once leave is granted,
then there is hardly any difference between a
normal appeal and an appeal against acquittal. The
concept of leave to appeal under Section 378 CrPC
has been introduced as an additional stage between
the order of acquittal and consideration of the
judgment by the appellate Court on merits as in the
case of a regular appeal. Sub-section (3) of Section
378 clearly provides that no appeal to the High
Court under Sub-sections (1) or (2) shall be
entertained except with the leave of the High Court.
This legislative intent of attaching a definite value
to the judgment of acquittal cannot be ignored by
the Courts.
13. Under the scheme of the CrPC, acquittal confers
rights on an accused that of a free citizen. A benefit
that has accrued to an accused by the judgment of
acquittal can be taken away and he can be convicted
on appeal, only when the judgment of the trial court
is perverse on facts or law. Upon examination of the
evidence before it, the Appellate Court should be
fully convinced that the findings returned by the
trial court are really erroneous and contrary to the
settled principles of criminal law."
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Based on these principles, we have to examine whether the findings of
acquittal recorded by the learned trial Judge in favour of the accused
nos.2, 3 and 4 can be sustained or if those findings are perverse and
therefore can be reversed. The learned trial Judge, in para 16 of the
impugned Judgment, has given his reasoning as to why he was
acquitting these accused nos.2, 3 and 4. He has observed that
according to the prosecution case, all these three accused were
holding the deceased Kalinga and the accused no.1 Ravindra Ingale
inflicted the fatal blow on the throat of of the deceased with a sickle.
The learned trial Judge has further observed that the Medical Officer's
evidence shows that the deceased had sustained injuries on middle
phalynx palmer aspect of left ring finger, incised wound over middle
phalynx palmer aspect of left middle finger and oblique incised wound
deep over proximal phalynx palmer aspect. The learned Judge has
further observed that these injuries might have been caused to the
injured in the scuffle while the deceased was defending himself and
therefore, the story put forth by the direct witnesses that accused
Satish Lohar, Samir Jamadar and Riyaz Kazi were holding the
deceased, could not be believed. However in the next paragraph
no.17 of the Judgment, the learned trial Judge went on to discuss the
involvement of the accused no.1 based on the evidence given by the
eye witnesses and in his case, the learned trial Judge has completely
believed the evidence of these eye witnesses. We find this approach of
the learned trial Judge to be incorrect and his finding on acquittal in
respect of accused nos.2, 3 and 4 is perverse. As per the evidence of
these two eye witnesses, they had not seen the incident from the
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beginning. In particular, when PW 1 had reached the spot, the
accused nos.2, 3 and 4 were already holding the deceased and the
accused no.1 cut his throat. The other eye witness PW 3 corroborates
this evidence by deposing about the presence of all the accused at the
spot and their assault on the deceased. Therefore, the injuries on the
palm of the deceased were caused before both these eye witnesses had
reached the spot but the evidence from the point from when they had
reached the spot, is absolutely trustworthy and reliable. Therefore,
the role played by the accused nos.2, 3 and 4 cannot be separated
from that of the accused no.1. The approach of the learned trial
Judge putting reliance on these two eye witnesses only in respect of
the accused no.1 and discarding their evidence in respect of the
accused nos.2, 3 and 4 is certainly erroneous and perverse and
therefore we are inclined to reverse this finding of acquittal. Now,
coming back to the role played by these accused nos.2, 3 and 4, the
PW 1 has clearly stated that these three accused were holding the
deceased and the accused no.1 inflicted the fatal blow. Hence, the act
of the accused nos.2, 3 and 4 clearly falls within the meaning of
Section 34 of the IPC as the act done in furtherance of common
intention and therefore, each of them is liable for that act in the same
manner as if it were done by each of the accused alone. Therefore, we
hold that all the accused nos.1, 2 3 and 4 shared a common intention
of commission of murder of Kalinga Lohar and they acted together to
commit his murder. Therefore, all of them are guilty of commission of
offence punishable under Section 302 read with 34 of the IPC.
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21. In view of the discussion above, we pass the following
order :
ORDER
(i) The conviction of the Appellant (original accused no.1 -
Ravindra Rangrao Ingale) in Criminal Appeal No.1030 of
2008 recorded by the learned Additional Sessions Judge,
Gadhinglaj, in Sessions Case No.6 of 2007; is altered from
section 302 of the IPC to that under Section 302 read with 34
of the IPC. The sentence awarded to him by the trial Court to
suffer R.I. for life and to pay a fine of Rs.5,000/- and in
default to suffer further R.I. for three months, is maintained.
The Appellant no.1 - accused no.1 shall be given benefit of
set off under Section 428 of the Cr.P.C. for the period already
undergone by him during the investigation and till the
conclusion of the trial.
(ii) Criminal Appeal No.805 of 2008 is allowed. The Judgment
and Order dated 06/03/2008 passed by the learned
Additional Sessions Judge, Gadhinglaj, in Sessions Case no.6
of 2007 acquitting the Respondent No.1 (original accused
no.2 - Satish Narayan Lohar), Respondent No.2 (original
accused no.3 - Samir alias Shamshuddin Abdul Hamid
Jamadar) and Respondent No.3 - (original accused no.4 -
Riyaz Kutbuddin Kazi) are set aside and each of them is
convicted for commission of offence punishable under
Section 302 read with 34 of the IPC and each of these
Respondents is sentenced to suffer R.I. for life and to pay a
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fine of Rs.5,000/- each; and in default of payment of fine, to
suffer further R.I. for three months. All these Respondents
shall be given benefit of set off under Section 428 of the
Cr.P.C. for the period already undergone by them during the
investigation and till the conclusion of the trial.
(iii) The Respondent Nos.1, 2 and 3 in Criminal Appeal No.805 of
2008 shall surrender before the trial Court within a period of
six weeks and in case of their failure to surrender before the
trial Court, the trial Court shall take appropriate action in
that behalf.
(iv) Both these Appeals are disposed off in the aforesaid terms.
(SARANG V. KOTWAL, J.) (A. A. SAYED, J.)
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