these two witnesses.
28) Sagarbai (PW 6) identified all the accused persons by
pointing them and by taking the names of each accused in the
Court. It is also not disputed that from prior to the date of incident,
she knew all the accused persons and she had seen them. In the
cross examination of Sagarbai (PW 6), she has admitted that prior to
incident in question, a criminal case was filed against her brothers
and her family at the instance of accused No. 1 - Kundalik. In the
cross examination, it is suggested to her that she had requested
accused No. 8 - Dhansing to act as a mediator and settle the dispute
which was going on between her family and accused No. 1 -
Kundalik. These suggestions were made to show that the relations
were strained. In respect of Dhansing, she has not admitted the
suggestion. But, these suggestions show that defence is not
disputing that the relations between accused Nos. 1 and 8 on one
side and the family of first informant including deceased Ashok on
other were strained and even cases were filed. It is brought on the
record that Kausalyabai, sister of deceased though she was born
from other wife of father of deceased, had filed civil suit to get share
in the property held by Ashok. The evidence as a whole shows that
accused No. 1 was taking the side of Kausalyabai. Husband of
Kausalyabai is dead. Some other evidence is brought on the record
Cri. Appeal No. 225/01 & Ors.
to the effect that the lands of the accused are situated adjacent to
the land of first informant and due to that, there was dispute. These
suggestions can be used both ways. The defence suggested these
circumstances to create a probability that due to enmity, the accused
are falsely implicated. But, these circumstances also create motive
for the offence. The relationship of other accused with accused No. 1
is also brought on the record by the defence. Due to these
circumstances also, it can be said that it was not difficult for
Sagarbai (PW 6) to identify atleast accused Nos. 1 and 8 on that
night if they had come there and they had assaulted the deceased.
29) In F.I.R., Sagarbai (PW 6) had not mentioned that in the
light of two bulbs fixed in open space, she could see the incident.
Much was argued by the learned counsels of the accused in the
appeals on circumstance like possibility of addition of few lines in the
spot panchanama after writing the matter to show the existence of
two bulbs in the open space. The panch witness Vishnu (PW 4) has
given evidence on spot panchanama and he has specifically given
evidence in respect of these two bulbs by giving their distance from
the spot where the dead body was lying. There is such mention in
the spot panchanama at Exh. 43 and this witness has denied that
the relevant portion was subsequently added. From simple perusal of
Exh. 43, it can be said that in some space which was available after
Cri. Appeal No. 225/01 & Ors.
writing the entire panchanama, the two lines are written, having
small size alphabets. Thus, there is the circumstance. But, the panch
witness has stuck to his version that this portion was there when he
signed on the spot panchanama. Police Head Constable Puri (PW 7)
has also given evidence on spot panchanama.
30) Vishnu (PW 4) has admitted that Sagarbai (PW 6) is
sister of his father. Thus, Vishnu is close relative of Sagarbai and he
is interested witness. However, the circumstances of this case show
that from that village no other person including Police Patil
cooperated the family of the deceased which was not having male
person in it. Accused No. 1 is from Bhavki of the deceased and the
houses of Parjane families are situated in the vicinity of the field and
house of the deceased. Ujjwala and Sangita, the two widows of
deceased turned hostile and other panch witness who was supposed
to give evidence on the statements given by accused under section
27 of the Evidence Act also turned hostile. These circumstances
show that the witnesses are reluctant to give evidence against
accused persons. The circumstance that no male member was left in
the family of Sagarbai, as the deceased was only son to her also
cannot be ignored. The other circumstances like sending Police Head
Constable by the police station when there was the information of
murder also shows that police were not taking the things seriously.
Cri. Appeal No. 225/01 & Ors.
The circumstances of the present matter show that there was no
option to police officers than to use the witnesses available.
31) The circumstances that the accused were known to
Sagarbai (PW 6) and she could identify all the accused by taking
their names in the Court show that even in the night time in the
month of July, it was not difficult for Sagarbai to identify the
assailants even if there was no light of bulbs. The probable distance
between the place where Sagarbai was sleeping and Ashok was
sleeping, was not more than 20 fts. as per the circumstances shown
in the panchanama. The cattle were tethered inside of the cattleshed
and the incident took place in front of the house and in front of the
cattleshed of the deceased. These circumstances cannot be ignored
and not much importance can be given to the aforesaid
circumstances like the possibility of adding two bulbs as a source of
light in the spot panchanama subsequently. Thus, the evidence of
Sagarbai (PW 6) cannot be discarded only due to these
circumstances.
32) The evidence of Head Constable - Madhukar Puri (PW 7)
of Shirur Police Station shows that he was required to go to village
as P.S.O. had given such direction. On that day he had reached the
Police Station at about 7.00 a.m. and he had noticed that Police Patil
Cri. Appeal No. 225/01 & Ors.
of Village Khalapuri was already present in the police station. His
evidence shows that no written report of Police Patil was shown to
him and only orally direction was given to him to go to village
Khalapuri. According to him, one can reach the village Khalapuri
within 15 minuts after starting from the police station. He has
deposed that he started at 8.15 a.m. and he reached the spot at
about 8.55 a.m. on 10.7.1999.
33) In the cross examination of Puri (PW 7), it is brought on
the record that prior to leaving police station, he had seen the F.I.R.
register to note the last number of F.I.R. He has given evidence that
the number to the present F.I.R. was accordingly given by him for
mentioning it in the documents like inquest panchanama, Exh. 27
and spot panchanama, Exh. 47. Thus, in the cross examination the
explanation to the mention of C.R. number in these documents is
brought on the record by the defence.
34) Inquest panchanama at Exh. 27 was drawn between
10.45 a.m. and 11.15 a.m. and it is admitted document. The spot
panchanama, Exh. 43 was drawn after 11.15 a.m. on the same day.
In both these documents C.R. number is mentioned as 36/1999.
There is some cross examination on C.R. number given in F.I.R.
register, but that is not that important as apparently the time of
Cri. Appeal No. 225/01 & Ors.
drawing of panchanamas is mentioned correctly and no attempt was
made either to pre-pone the time or post-pone the time. The
evidence of Puri (PW 7) shows that he made arrangement to send
the F.I.R. to police station for it's registration after recording it on
the spot. Thus, the F.I.R. was registered in the register subsequently
and probably after drawing of the aforesaid panchanamas in the
village. In any case, even if it is presumed that the F.I.R. was
recorded by him on the spot at about 8.55 a.m., it can be said that
there was some delay in giving of F.I.R. as the incident had taken
place at about 00.00 hour to 1.00 hour of the night and the persons
from the village could have reached to police station within 15
minutes.
35) Much was argued on the circumstances of delay caused
in giving the F.I.R. and also the delay caused in giving the report
under section 157 of Cr.P.C. about F.I.R. to the concerned J.M.F.C.
The time of registration of the F.I.R. is shown as 11.30 a.m. of
10.7.1999 and that can be seen from Exh. 60. Argument was
advanced by the learned counsels for accused that there is evidence
on record to show that dog squad was used for tracing the accused
and this circumstance also creates probability that assailants were
not known to anybody. The record like remand report shows that
accused - Kundalik and accused - Tanaji came to be arrested on
Cri. Appeal No. 225/01 & Ors.
12.7.1999 and they were produced before Magistrate on 13.7.1999.
It appears that copy of F.I.R. was sent to Magistrate on 12.7.1999.
The copies of remand reports and case diary show that some
accused came to be arrested late on 19.7.1999 and accused No. 8
came to be arrested in September 1999.
36) This Court has seen the English calender for the month
of July 1999. It shows that on 10th, it was 2nd Saturday and on
11th, it was Sunday. The F.I.R. was recorded on 10th and in this
State, the Court remains closed on 2nd Saturday and 4th Saturday
and also on all Sundays. In view of these circumstances, the
circumstance that copy of F.I.R. was sent to the Court of J.M.F.C. on
12th, late by one day and not immediately after registration of the
crime cannot make much difference. On this point, the learned
counsel for accused placed reliance on the case reported as 1976
CRI.L.J. 1883 [Ishwar Sing Vs. State of U.P.]. In that case, the
extraordinary delay in sending the F.I.R. and compliance of provision
of section 157 of Cr.P.C. was considered as a circumstance which
provided legitimate basis for suspecting that the F.I.R. was recorded
much later and that gave sufficient time to prosecution to introduce
improvements and embellishment and set up a distorted version of
occurrence. On this point, the learned APP placed reliance on the
case reported as AIR 1993 (SC) 1554 [Paresh Kalyandas
Cri. Appeal No. 225/01 & Ors.
Bhavsar Vs. Sadiq Yakubbhai Jamadar and Ors.]. In that case,
the F.I.R. was found to be concrete and the circumstances were not
creating a doubt as to the veracity. The facts and circumstances of
each and every case are always different. In the present matter, in
view of the aforesaid circumstances, it cannot be said that copy of
F.I.R. was not sent immediately as required under section 157 of
Cr.P.C. and the non compliance of this provision gave opportunity to
concoct the case against the accused persons. This Court has quoted
the circumstances that there were no male persons in the family of
the first informant and the family was virtually helpless. One Police
Head Constable was given for making investigation even when it was
a case of murder and the record shows that the S.D.P.O., superior
officer came in picture on the next day. Due to these circumstances,
this Court holds that not much can be made out due to the
circumstance that F.I.R. was not sent immediately, after it's
registration to the Court of J.M.F.C. Similarly, the delay caused in
giving of the F.I.R. can be considered only to ascertain as to whether
there is a possibility of concoction.
37) In the cross examination of Sagarbai (PW 6), it is
suggested to her that she did not give report immediately and she
waited for arrival of her brothers and only after deliberation with
brothers, she gave report. This suggestion is denied. It is already
Cri. Appeal No. 225/01 & Ors.
observed that in the past, a case was filed due to the report given by
accused No. 1 against this family. The case was mainly against the
accused. It can be said that the dispute was between the deceased
and his step sister and accused No. 1 was taking the side of said
step sister of the deceased. Both the widows of the deceased have
given similar evidence on this point and it can be said that the
mother of deceased was virtually shocked due to the incident and
she kept crying. There is no record to show that the Police Patil had
given written report after learning about the incident or his oral
report was recorded. The evidence of Police Officer Puri (PW 7)
shows that the statement of Police Patil came to be recorded
subsequently, after registration of the crime. Due to these
circumstances, this Court holds that the delay caused in giving the
F.I.R. also has not created a doubt about the version of Sagarbai
(PW 6). Similarly, there is no hurdle in considering the F.I.R. of
Sagarbai (PW 6) for corroboration purpose.
38) The law laid down shows that if there is delay in giving
the F.I.R. or delay is caused in complying the provision of section
157 of Cr.P.C., sending copy of F.I.R. to the concerned J.M.F.C., those
circumstances themselves cannot vitiate the trial. The Court is
expected to ascertain as to whether due to these circumstances any
prejudice is caused to the accused. When there is cogent and
Cri. Appeal No. 225/01 & Ors.
reasonable explanation available, not much can be made out from
such circumstances in favour of the accused persons. [Reliance
placed on the case of Anil Rail Vs. State of Bihar (2001) 7 SCC
318].
39) Argument was advanced by the learned counsels of the
accused on one more point. It was submitted that if the names of
accused persons are not mentioned in document like inquest report,
that creates a probability that the names of accused persons were
not known to police and it also creates a probability that the F.I.R.
itself was not given. In the case reported as AIR 2010 SC 3300
[Shambhu Das alias Bijoy Das and Anr. Vs. State of Assam], it
is made clear by the Apex Court that there is no requirement of
provision of section 174 of Cr.P.C., of preparing the inquest report
that the sum and substance of F.I.R. is mentioned in such report.
The purpose of creating inquest report is only to show that the death
was not natural, it was unnatural. In view of this position of law, not
much can be made out in the present matter on the basis of such
circumstance.
40) So far as the delay caused in giving of the report is
concerned, in brief, this Court has already mentioned the
surrounding circumstances. While considering the explanation
Cri. Appeal No. 225/01 & Ors.
available for the delay caused, which can also be made out on the
basis of circumstances, if the Court finds that the reaction of the
witness to the incident was not improbable and human being facing
such situation would not have acted in any other manner, the Court
can safely accept the evidence of such witness even though the
delay is caused in giving of the F.I.R.
41) This Court has mentioned the evidence given by Puri (PW
7), the Police Head Constable, who recorded the F.I.R. given by
Sagarbai (PW 6). In view of wording of section 154 of Cr.P.C., the
F.I.R. includes oral information regarding cognizable offence and if it
is given to police, it needs to be treated as F.I.R. The registration of
such report by police needs to be treated as step taken for the
investigation. On this point, reliance is placed on the case of
Sambhu Das cited supra. Thus, even if it is presumed that in the
present matter, the F.I.R. was registered after preparing inquest
report and preparing spot panchanama, it has not lost the
authenticity and this document can be used for the purpose of
corroboration to the version of first informant.
42) To ascertain the reliability of the evidence of Sagarbai
(PW 6), the evidence needs to be compared with medical evidence.
It is already observed that the other circumstances like she is a
Cri. Appeal No. 225/01 & Ors.
natural witness and it is not disputed that the incident in question
took place at the distance of hardly 20 ft. from the residential place
of this witness, support her version. The medical evidence shows
that four incised wounds were found on the dead body. Sagarbai
(PW 6) has given account of only two injuries by deposing that one
blow of axe was given by accused No. 8 on the neck of the deceased
and one blow of sword was given by accused No. 1 on the abdomen
of the deceased.
43) Dr. Waman (PW 1), Medical Officer, who conducted the
P.M. examination has deposed that sword can cause both these
injuries. In the evidence of Dr. Waman, the learned APP had shown
him sword, Article No. 8 and Dr. Waman has admitted that such
injuries can be caused by sword. Unfortunately, the learned APP did
not show the axe to this witness to obtain the opinion regarding the
use of this weapon in respect of any of the aforesaid four injuries.
44) Dr. Waman (PW 1), in the cross examination has
admitted that Article No. 8, sword, is not having sharp edge. The
defence wants to show that this sword could not have caused the
incised wounds. It needs to be kept in mind that the incident took
place on 10.7.1999 and the evidence of the Dr. Waman is recorded
on 26.7.2000, after more than one year. As per the practice, the
Cri. Appeal No. 225/01 & Ors.
weapons were first lying in Muddemal room of police station and
then in the Court in almost open condition and the rusting must
have taken place. Even if there was sharp edge to the weapon in the
past, after such long time nobody may not be able to see sharp edge
to the weapon. This circumstance is considered by the Trial Court.
Further, the sword has always some edge and has sharp point at
front head and that portion can be used to inflict even stab wound.
45) The description of injury No. 1 already quoted found on
the face shows that it was bone deep and it was tapering to both
ends. This injury was very close to neck. In view of such description
of injury No. 1, a prudent A.P.P. ought to have taken the opinion on
this injury by showing axe. Unfortunately, it was not done. In any
case, the opinion of doctor under section 45 of the Evidence Act is
not binding on the Court and it is up to the Court to decide as to
whether the opinion evidence needs to be accepted or not. Further, it
is up to the Court to decide as to whether the direct evidence needs
to be accepted or the opinion evidence needs to be accepted. The
Trial Court felt it is desirable to accept the evidence of Sagarbai (PW
6). This Court sees no reason to interfere in this decision of the Trial
Court.
46) Sagarbai (PW 6) has not given specific and positive
Cri. Appeal No. 225/01 & Ors.
evidence on the overt acts of the remaining accused persons in
inflicting injuries. Account of only two injuries is given by Sagarbai
and there were two more incised wounds found on the dead body.
This circumstance has not created a reasonable doubt about the role
played by accused Nos. 1 and 8, though this circumstance can give
benefit to the remaining accused persons. This Court holds that
circumstance that Sagarbai attributed role only to accused Nos. 1
and 8 shows that she had no intention to implicate others and so,
there is no possibility of concoction atleast as against accused Nos. 1
and 8. The circumstances of the present matter show that the
investigating agency did not favour Sagarbai. Accused No. 8 was a
political figure at that time and he was holding some post. That can
be seen from the tenor of the cross examination made by his
counsel of even Investigating Officer. On the other hand, it needs to
be presumed that Sagarbai lost her only issue and she would not
have spared the real culprits. This circumstance also needs to be
used by drawing inference in a case like present one. Thus, Sagarbai
(PW 6) needs to believed and benefit of doubt, due to aforesaid
circumstances and absence of other circumstantial evidence needs
to be given to other accused.
47) Amarsing (PW 9), the P.S.O. is examined only to show
that the F.I.R. was sent to the police station by Puri (PW 7) and on
Cri. Appeal No. 225/01 & Ors.
that basis, the crime was registered. His evidence shows that after
registering the crime, he had sent back the F.I.R. to Puri. In view of
the discussion already made, there is no need to discuss the
evidence of Amarsing (PW 9) more.
48) Vasant Pardeshi (PW 10), S.D.P.O., who took over the
investigation as per the record on 11.7.1999 has given evidence on
almost all the investigation of the present matter. It can be said that
he took the help of one P.S.I. Kulkarni (PW 8), who was attached to
the police station.
49) The record shows that dog squad was used by Pardeshi
(PW 10). Much was argued due to this circumstance for the accused
persons. It was submitted that probably the names of assailants
were not known and the F.I.R. was also not given against them. The
dog squad is generally used only for the purpose of having some
lead in the investigation. It can be said that on 10.7.1999 not a
single accused was available for taking in custody. Some accused
came to be arrested on 12.7.1999. The dog squad took police up to
the house of accused No. 8 - Dhansing, but Dhansing could not be
arrested till September. The evidence of dog squad could not have
been used by prosecution.
Cri. Appeal No. 225/01 & Ors.
50) Pardeshi (PW 10) has given evidence against accused
No. 1 that while in police custody, he gave statement under section
27 of the Evidence Act in presence of panch witnesses that he was
ready to produce the weapon, sword. The panch witness on the
memorandum of statement has turned hostile and the memorandum
is proved in the evidence of Pardeshi (PW 10) as Exh. 65. The panch
witness has admitted his signature appearing on this document and
also the panchanama of seizure of the sword. Pardeshi (PW 10) has
deposed that accused No. 1 then took the police and panchas to his
residential place and then he produced sword having blood stains
which was kept by him behind cornbin (in concealed condition). The
seizure panchanama of sword is at Exh. 66. The evidence of
Pardeshi (PW 10) shows that accused No. 1 produced his clothes,
Article Nos. 9 and 10 from his house and they were also seized as
there were blood stains on these articles. The panchanama of
seizure of clothes is proved as Exh. 67.
51) Kulkarni (PW 8) was attached to the aforesaid police
station as P.S.I. He was not available on 10.7.1999. Subsequently,
he made some investigation. He has given evidence that accused
No. 8 - Dhansing gave statement to him in the presence of panch
witnesses under section 27 of the Evidence Act that he was ready to
produce weapon, axe. The memorandum of panchanama is proved
Cri. Appeal No. 225/01 & Ors.
as Exh. 53 in the evidence of Kulkarni. The same set of panch
witnesses was used by Pardeshi and Kulkarni in respect of evidence
collected as against accused Nos. 1 and 8, but the panch witness
examined has turned hostile. Kulkarni (PW 8) has then given
evidence that accused No. 8 took police and panchas to his
residential place and he produced axe which was kept behind
earthen pots (in a concealed condition). The seizure panchanama of
axe is proved in the evidence of Kulkarni as Exh. 54.
52) The weapon axe came to be recovered from accused No.
8 on 7.9.1999 and the weapon sword came to be recovered from
accused No. 1 on 16.7.1999. The clothes of accused No. 1 were also
recovered on 16.7.1999. Unfortunately, no positive evidence is given
by aforesaid both the police officers by stating that accused No. 8
was absconding though evidence is there of aforesaid nature.
53) Kulkarni (PW 8) has given evidence that with covering
letter at Exh. 55, he sent all the articles seized in the present matter
to C.A. Office on 21.9.1999. It needs to be kept in mind that the
article like axe recovered on 7.9.1999 was sent within 15 days ,
though other articles were sent late. The C.A. report in respect of
these articles at Exh. 68 shows that blood of group 'B' was detected
on both axe and sword. On the clothes of the deceased, quilt which
Cri. Appeal No. 225/01 & Ors.
was under him and the blanket which was covering him, blood of
group 'B' was detected. Human blood was detected on the clothes of
accused No. 1. These circumstances are not at all explained by
accused Nos. 1 and 8 in their statements under section 313 of
Cr.P.C.
54) Vijay Nagarkar (PW 11), the Circle Inspector of Police
made investigation of the case on 10.7.1999, but to some extent like
recording statements of material witnesses like Ujjwala (PW 2) and
Sangita (PW 3). The statements of some other neighbours were also
recorded. His evidence and the record show that there were only
three other adult members in the family of deceased like Sagarbai,
Ujjwala and Sangita and it is the case of prosecution that only three
ladies had an opportunity to witness the actual incident. These all
three material witnesses are examined by the prosecution in the
present case and two close relatives of the deceased like two widows
have turned hostile. In the evidence of Vijay (PW 11), the relevant
portions of previous statements of Ujjwala (PW 2) and Sangita (PW
3) are proved as contradictions. These contradictions and other
circumstances of the matter have created a clear probability that
they have avoided to tell the truth when they had actually witnessed
atleast some part of the incident as they had come out after
shouting of Sagarbai.
Cri. Appeal No. 225/01 & Ors.
55) For the defence/accused persons, reliance was placed on
the case of Apex Court reported as 1994 CRI.L.J.3848 [Mani Ram
and Ors. Vs. State of U.P.]. It was submitted that independent
witnesses are not examined in the present matter by prosecution
and so, adverse inference needs to be drawn. The aforesaid
circumstances show that all the three material witnesses are
examined by the prosecution. The remaining witnesses like Babu
Parjane and others, who were living in the neighbourhood and who
had rushed to the spot only after shouting of Sagarbai would have
given evidence on the circumstance that they reached the spot due
to shouting of Sagarbai. They would have given evidence on
disclosure if the incident was disclosed to them by Sagarbai and that
circumstances would have been relevant circumstances. In this
regard, the other relevant evidence is already discussed and it
shows that Sagarbai was in a shock and first time, she disclosed the
incident when the police reached the spot. The submissions made by
the learned counsels of the accused that brothers of Sagarbai had
tutored her and due to that, she has falsely implicated the accused,
is not acceptable for the reasons already given. In the incident of
past, the deceased had used knife against accused No. 1 and not the
brothers of Sagarbai. She is an illiterate lady and the defence has
taken care not to produce the record of that case. There is evidence
Cri. Appeal No. 225/01 & Ors.
of police to some extent.
56) The learned counsels for the accused placed reliance on
another case reported as 1975 CRI.L.J. 1734 [Balaka Singh and
Ors. Vs. The State of Punjab]. In view of the facts of that case,
the Apex Court held that the evidence on which the conviction was
given to few accused was not separable from the evidence which
was given against other accused persons who were acquitted in the
case and so, all the accused were entitled to get benefit of doubt and
acquittal. The facts of this reported case were totally different. In
the present matter, the material which can be considered as
evidence under section 3 of the Evidence Act and the available
relevant circumstances are considered by this Court and they are
quoted above. The discussion made above shows that the evidence
as against accused Nos. 1 and 8 is easily separable as that evidence
gives inference that they caused the death of deceased Ashok.
57) The learned APP placed reliance on the case reported as
AIR 1973 (SC) 2622 [Shivaji Sahebrao Bobade Vs. State of
Maharahtra]. The Apex Court has made some observations with
regard to appreciation of evidence of sole eye witness. There are
observations with regard to the duties and powers of the Appellate
Court while considering the criminal appeal. The Apex Court has laid
Cri. Appeal No. 225/01 & Ors.
down that :-
"Even if the case against the accused hangs on the
evidence of a single eye-witness it may be enough to
sustain the conviction given on sterling testimony of a
competent, honest man, although as a rule of
prudence courts call for corroboration. It is a platitude
to say that witnesses have to be weighed and not
counted since quality matters more than quantity in
human affairs."
The Apex Court has also laid down as under :-
"In many cases, especially the earlier ones the Court
has in laying down such principles emphasised the
necessity of interference with an order of acquittal
being based only on compelling and substantial
reasons and has expressed the view that unless such
reasons are present an Appeal Court should not
interfere with an order of acquittal (vide Suraj Pal
Singh v. The State, (1952) SCR 193 = (AIR 1952 SC
52) Ajmer Singh v. State of Punjab, (1953) SCR 418 =
(AIR 1953 SC 76) Puran v. State of Punjab, AIR 1953
SC 4590. The use of the words compelling reasons
embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and
difficulties occasionally arose as to what this Court had
meant by the words compelling reasons. In later years
the Court has often avoided emphasis on compelling
reasons but nonetheless adhered to the view
expressed earlier that before interfering in appeal with
Cri. Appeal No. 225/01 & Ors.
an order of acquittal a Court must examine not only
questions of law and fact in all their aspects but must
also closely and carefully examine the reasons which
compelled the lower courts to acquit the accused and
should interfere only if satisfied after such examination
that the conclusion reached by the lower court that the
guilt of the person has not been proved is
unreasonable (Vide Chinta v. The State of Madhya
Pradesh, Criminal Appeal No. 178/1959 decided on
18.11.1960 (SC), Ashrafkha Haibatkha Pathan v. The
State of Bombay, Criminal Appeal No. 38 of 1960
decided on 14.12.1960 (SC).)
"..............On close analysis, it is clear that the
principles laid down by the Court in this matter have
remained the same. What may be called the golden
thread running through all these decisions is the rule
that in deciding appeals against acquittal the Court of
Appeal must examine the evidence with particular
care, must examine also the reasons on which the
order of acquittal was based and should interfere with
the order only when satisfied that the view taken by
the acquitting Judge is clearly unreasonable. Once the
appellate court comes to the conclusion the view taken
by the lower court is clearly an unreasonable one that
itself is a "compelling reason" for interference. For, it is
a courts duty to convict a guilty person when the guilt
is established beyond reasonable doubt, no less than it
is its duty to acquit the accused when such guilt is not
so established."
Cri. Appeal No. 225/01 & Ors.
58) The discussion of law and the facts of the present matter
discussed already shows that there is convincing and reliable
evidence only as against accused Nos. 1 and 8, who are convicted by
the Trial Court. The direct evidence against them has sufficient
corroboration of the circumstances like :-
(i) Sagarbai (PW 6) is natural witness and the defence is
not disputing that the murder took place at the distance of
around 20 ft. in open space situated in front of the
residential place of deceased where witness was living.
(ii) The medical evidence on the use of sharp and cutting
weapon by accused Nos. 1 and 8.
(iii) The motive for the crime for both the accused
persons.
(iv) Corroboration of the contents of the F.I.R. showing
that Sagarbai disclosed the incident to police officer
immediately when police officer reached the spot and
(v) The evidence of recovery of weapons from the
accused persons on the basis of statements given under
section 27 of the Evidence Act and the recovery of clothes
of accused No. 1 and presence of blood stains on these
articles and non explanation of these circumstances by the
accused.
Cri. Appeal No. 225/01 & Ors.
However, there is no convincing evidence to prove the offence
beyond reasonable doubt against the remaining accused persons,
who are acquitted by the Trial Court.
59) Accused No. 4 - Mahadev and accused No. 5 - Ashok
have taken the defence of alibi and they have examined in all three
witnesses to prove this defence. They have, however, not examined
themselves on oath to substantiate this contention.
60) In the evidence of Shankar Gaikwad (DW 1), who was
working as Traffic Controller in M.S.R.T.C., has deposed that two
passes were issued to these persons by M.S.R.T.C. under scheme
"vkoMsy rsFks izokl" (Traval whereever you like). On the passes as per
the procedure, photographs of the passengers are affixed and they
were for the period from 7.7.1999 and 13.7.1999. Balkrishna (DW
2), who is working as Conductor in M.S.R.T.C. has deposed that on
9.7.1999 he was attached to Satara to Kalyan - Vithalwadi bus. He
has deposed that the bus started at 9.00 a.m. on 9.7.1999 and two
passengers who were having the passes Nos. 14722 and 14723
boarded his bus at 9.00 a.m. He has deposed that the period of
eight and half hours is required for covering the distance from
Satara to Kalyan and bus reached Kalyan at 5.30 p.m. He has
Cri. Appeal No. 225/01 & Ors.
deposed that he mentioned the bus number on the two passes and
there is such endorsement on the two passes. The passes are given
Exhs. 96 and 97. Bhaskar Talpade (PW 3) is examined, who is
another conductor and he has deposed that on 10.7.1999 he was
attached to Kalyan - Dombiwali - Shirdi bus and the bus reached at
Kalyan at 6.30 a.m. and there, the persons holding the passes,
having Exhs. 96 and 97, boarded his bus. Mukund (DW 4), Traffic
Controller of M.S.R.T.C. is examined in support of the version given
by aforesaid two witnesses in respect of the bus route of the
aforesaid two buses. He has deposed that on 10.7.1999 he was
discharging the duty of filling T. & A. register and on that date,
Bhaskar Talpade (Conductor) was given the duty on Dombiwali -
Shirdi bus. He has deposed that Dombiwali - Shirdi bus reached
Kalyan at 5.30 a.m. and on that day, the bus left at about 6.30 a.m.
He has given evidence that there was mechanical problem in the bus
and so, the bus did not proceed ahead of Nashik. Entry in that
regard is proved as Exh. 107.
61) The incident in question took place on the night between
9.7.1999 and 10.7.1999. This Court has no hesitation to hold that
this evidence could not have made out the case of alibi in favour of
aforesaid accused persons and benefit of these circumstances could
not have been given to these accused as the other circumstances
Cri. Appeal No. 225/01 & Ors.
are not brought on the record. Ordinarily, corresponding record is
required to be created in the office about use of such passes by
passangers, but no such record was produced. It can be said that
these accused who are resident of Shirur, District Beed ought to
have given evidence on oath to tell as to why they were at Satara
and as to why they first went to Kalyan if they wanted to go to Shirdi
or Beed. For going to Shirdi or Beed one is not required to go to
Kalyan as there are many routes/roads from Satara to Beed or even
Shirdi and by those routes the distance to be travelled would be less
than 50% of the distance for going via Kalyan.
62) It is true that the initial burden to prove the offence was
on prosecution in view of the provisions of sections 101 and 102 of
Evidence Act. Only after discharging that burden the onus would
have shifted to accused persons and in that case, they were
expected to create reasonable probability of alibi. In view of the
provisions of section 11 of the Evidence Act, such circumstances are
relevant, but the onus is always on the accused persons as provided
in section 103 of Evidence Act. This Court has come to the
conclusion that the initial burden was not discharged by the
prosecution and so, there is no need to consider and appreciate the
aforesaid evidence on alibi in detail. To make out such defence a
reasonable probability is required to be created by the accused as
Cri. Appeal No. 225/01 & Ors.
provided in case reported as AIR 1978 SC 191 [State of U.P. Vs.
Sughar Singh and Ors.] Through the Trial Court has considered
the probability in favour of the accused persons due to the aforesaid
circumstances, this Court holds that this would not have helped the
accused persons. This Court, however, sees no reason to interfere in
the decision given by the Trial Court. In the result, following order is
made :-
ORDER
(I) All the three appeals are dismissed.
(II) Accused No. 1 - Kundalik s/o. Jagannath Parjane and
accused No. 8 - Dhansing s/o. Annasaheb Sonavane are to surrender
to their bail bonds for undergoing sentence.
(III) The bail bonds of remaining accused persons, who are
acquitted and against whom the State has filed the appeal are to
continue for the period of three months from today.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
