Kanchan Deokisanjee Panpalia And ... vs State Of ...
2018 Latest Caselaw 352 Bom

                                         1                                       apeal210.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 210 OF 2002


 1) Kanchan Deokisanjee Panpalia,
     Aged 32 years, 
     Resident of Shelu Ghorad, 
     District - Wardha. 

 2) Tara Harishkumar Panpalia,
     Aged about 30 years, 
     Resident of Mandgaon,
     Tq. Samudrapur, Dist. Wardha.                               ....       APPELLANTS


                     VERSUS


 The State of Maharashtra, 
 Police Station Officer, 
 Railway Police Station, Akola.                                  ....       RESPONDENT


 ______________________________________________________________

 Shri A.V. Gupta, Senior Advocate assisted by Shri P.P. Kotwal, Advocate
                           for the appellants, 
   Shri N.B. Jawade, Additional Public Prosecutor for the respondent.
 ______________________________________________________________

                              CORAM :        ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          :  29-08-2017
  DATE OF PRONOUNCING THE JUDGMENT        :  12-01-2018

 JUDGMENT : 

The appellants seek to assail the judgment and order dated

2 apeal210.02

17-4-2002 passed by the learned 4th Additional Sessions Judge, Akola

in Sessions Trial 185/96, by and under which the appellants

(hereinafter referred to as the "accused") are convicted for offence

punishable under Section 307 read with Section 34 of the Indian Penal

Code ("IPC" for short) and are sentenced to suffer rigorous

imprisonment for seven years each and to payment of fine of Rs.100/-

each.

The accused faced trial for having committed offences

punishable under Section 498-A read with Section 34 and Section 307

read with Section 34 of the IPC alongwith Ghanshyamdas Panpalia.

The accused are acquitted of offence punishable under Section 498-A

read with Section 34 of the IPC and Ghanshyamdas Panpalia is

acquitted of both the offences.

2. Irrefragably, P.W.1 Kalpana suffered serious injuries due

to a fall from the running train which was proceeding from Wardha

towards Shegaon. The burning question is whether Kalpana was

pushed from the running train by the accused with the intention of

causing her death or with the knowledge that the act is so eminently

dangerous that in all probability death or such bodily injury as is likely

to cause death shall be caused, or the fall was accidental.

3 apeal210.02

3. The prosecution case : P.W.1 Kalpana and accused

Ghanshyamdas entered into matrimonial alliance on 13-6-1995.

Ghanshyamdas is a medical practitioner. Accused Kanchan is the

widow of the deceased brother of Ghanshyamdas and accused 2 Tara is

the wife of the brother of accused Ghanshyamdas. Accused Kanchan

and her children were residing with accused Ghanshyamdas and

Kalpana at Shelu. Accused Tara was a resident of village Mandgaon

and used to visit accused Ghanshyamdas and P.W.1 Kalpana. Accused

Kanchan and Ghanshyamdas used to tease and taunt Kalpana on trivial

issues and were displaying mutual affection in her presence, which

ignited suspicion in Kalpana's mind. Accused Kanchan and

Ghanshyamdas used to harass Kalpana by declaring that her father did

not give anything to accused Ghanshyamdas.

On the fateful day 24-11-1995 at 9-00 a.m. accused, their

children and Kalpana boarded the passenger train from Wardha

Railway Station to go to Shegaon on way to Khamgaon to attend the

marriage of a relative. In the course of the journey, accused were

taunting Kalpana. As the train approached Murtizapur, Kalpana went

to the lavatory to answer the nature's call and came out after ten to

fifteen minutes. In the meanwhile, the train crossed Katepurna

Railway Station. The accused were standing at the northern side door

4 apeal210.02

of the compartment. The accused asked Kalpana to stand at the door

of the compartment, the train crossed the railway bridge. Accused

Kanchan caught Kalpana's right hand and accused Tara pushed

Kalpana out of the running train. Kalpana fell down on the track, the

emergency chain was pulled, the train stopped and was taken in the

reverse direction to the spot of the incident. Kalpana was initially

taken to the Railway Hospital, Akola and since the doctor was not

available, she was taken to the General Hospital, Akola. Dr. Sandeep

Arsad examined Kalpana at 4-05 p.m. on 24-11-1995 and admitted her

as indoor patient. The Casualty Medical Officer informed the City

Kotwali Police Station, Akola. The statement of injured Kalpana was

not recorded as she was not in a position to give the statement. It was

only on 30-11-1995 that the Executive Magistrate, Akola recorded the

statement of the injured Kalpana on the basis of which offence

punishable under Section 307 read with Section 34 of the IPC was

registered at 8-15 p.m. on 30-11-1995 pursuant to report lodged by

police constable Nilesh. The City Kotwali Police Station forwarded the

dying declaration to Borgaon Manju Police Station which registered

Crime 233/1995 under Section 307 read with Section 34 of the IPC.

Borgaon Manju Police Station in turn forwarded the case papers of

Crime 233/1995 to Railway Police Station, Akola which registered

5 apeal210.02

Crime 72/1995 under Section 307 and 498-A of the IPC.

Kalpana was shifted to Navjeevan Hospital, Amravati for

further treatment on 01-12-1995 and was discharged on the same day.

She was again admitted on 17-12-1995 and discharged on 28-12-1995.

Investigation ensued, the completion of investigation culminated in the

submission of the charge-sheet in the Court of Judicial Magistrate First

Class, Akola, who committed the proceedings to the Sessions Court.

4. The learned Sessions Judge framed charge against the

accused under Section 307 read with Section 34 and Section 498-A

read with Section 34 of the IPC. The accused abjured guilt and claimed

to be tried. The defence is that Kalpana suffered injuries due to an

accidental fall from the running train.

The defence examined two witnesses. D.W.1 Avinash

Malode is a co-passenger and D.W.2 is Dr. Sandeep Arsad who was also

examined by the prosecution as P.W.8.

5. The injured Kalpana, on whose testimony the edifice of the

prosecution case is built, is examined as P.W.1. She has deposed that

accused Kanchan and her children were residing with P.W.1 and her

husband and accused Tara and her husband were visiting her house

6 apeal210.02

once in a week. P.W.1 states that the accused ill-treated her and the

nature of the ill-treatment was physical and mental abuse. The reason

for the ill-treatment is stated to be the failure of her father to give

refrigerator and motorcycle to accused Ghanshyamdas. P.W.1 states

that her husband accused Ghanshyamdas was in an illicit relationship

with accused Kanchan. The version of P.W.1 as to the incident is that

she boarded Nagpur-Bhusawal Passenger Train on 24-11-1995 at 10-00

a.m. alongwith acused Kanchan and Tara and their children. As the

train crossed the Murtizapur Railway Station, she went to answer the

nature's call and when she came out of the lavatory after ten to fifteen

minutes, the accused who were standing near the door of the lavatory

asked her to stand at the spot. Accused Kanchan caught hold of her

hand and accused Tara pushed her out of the door of the compartment

of the running train. P.W.1 fell down on the railway track between

Borgaon Manju and Yawalkhed Railway Station and became

unconscious. She regained consciousness in the General Hospital,

Akola on 25-11-1995. She disclosed to her parents that accused pushed

her from the running train. She again became unconscious till 30-11-

1995 on which date the Tahsildar recorded her dying declaration. Her

statement was also recorded by the police in the hospital. She was

shifted to Navjeevan Hospital of Dr. Lahoti at Amravati in the night of

7 apeal210.02

30-11-1995 and was admitted in the said hospital for a month. Her

statement was recorded by the police on 01-12-1995 and again on 04-

12-1995. She has proved the printed first information report dated 16-

12-1995 (Exhibit 65).

In the cross-examination, P.W.1 reiterated that she

disclosed the incident to her parents on 25-11-1995. P.W.1 stated that

she was conscious only for ten to fifteen minutes and again lost

consciousness. She regained the consciousness at intervals of five to

ten minutes and lastly she regained consciousness on 30-11-1995.

P.W.1 admits that she did not ask her parents to lodge the report in the

intermittent period of consciousness and that she did not disclose the

incident to the treating doctor. She admits that she was treated in the

hospital of Dr. Lahoti from 01-12-1995 to 28-12-1995. P.W.1 admits

that there were twenty-two to twenty-five co-passengers in the

compartment and that the incident occurred after the train crossed the

river bridge. She states that accused Kanchan caught her left hand and

not her right hand. P.W.1 states that the train was in high speed at the

time of the incident and that the door of the compartment was open.

She admits that the lavatory is attached to the door of the

compartment. She denies the suggestion that due to jerk, she suffered

an accidental fall.

8 apeal210.02

Several omissions are brought out in the cross-examination

of P.W.1, which by and large pertain to her version in the examination-

in-chief that she was subjected to physical and mental abuse

attributable to the illegal demand of refrigerator and motorcycle.

P.W.1 admits that she was conscious when her parents admitted her in

the Navjeevan Hospital and that she narrated the history of the injuries

to the doctor. P.W.1 states that she did disclose to the doctor that she

was pushed from the running train by the accused. She denies the

suggestion that she told the doctor that she fell from the running train.

6. P.W.2 Vijay registered the zero first information report at

City Kotwali Police Station, Akola and transferred the case papers to

Borgaon Manju Police Station. P.W.2 registered the crime on the basis

of the report lodged by police constable Nilesh. He proves printed first

information report (Exhibit 67).

P.W.2 recorded the statement of injured Kalpana on

30-11-1995 and admits that Kalpana was fully conscious. The

omissions qua the motive, nature and extent of ill-treatment to which

Kalpana has testified, are duly proved by the defence.

7. P.W.3 Jayshree Mangulkar is examined to prove the ill-

9 apeal210.02

treatment meted out to P.W.1 Kalpana. However, all that is said by

P.W.3 Jayshree is that Kalpana disclosed that the accused harassed her.

8. P.W.4 Kantabai Mundada is the mother of Kalpana. She

states that Kalpana disclosed to her that accused ill-treated her. She

states that Kalpana regained consciousness on Sunday (26-11-1995).

She states that Kalpana disclosed to her that accused pushed her out of

the running train.

P.W.4 states that she conveyed to her husband the

disclosure made by Kalpana about the incident. She admits that

neither she nor her husband informed the police at the Civil Hospital

Police Post or in any police station at Akola. She admits that even after

Kalpana regained consciousness, no report was lodged in the police

station. P.W.4 admits that since accused and husband of accused Tara

attended the marriage ceremony at Khamgaon on 26-11-1995, they did

not return to the hospital which enraged Kalpana's family. She,

however, denies the suggestion that due to the anger, the accused were

falsely implicated.

9. P.W.5 Jagannath Dongre is the Gangman, who upon

receiving information about the incident, kept the injured in the train

10 apeal210.02

with the help of others.

10. P.W.6 Sunil Budhalkar, who is the panch witness to the

spot panchanama dated 13-12-1995, did not support the prosecution,

was declared hostile and cross-examined by the prosecutor. P.W.6

admits his signature on the spot panchanama.

11. P.W.7 Digambar Kaithwas is the other panch witness to

the spot panchanama who supports the prosecution.

12. P.W.8 Dr. Sandeep Arsad examined injured Kalpana on

24-11-1995 and has proved the injury certificate Exhibit 78. The said

witness is also examined as D.W.2 after he was summoned to produce

the hospital record.

13. P.W.9 Bhimrao Kale carried the seized articles to the

chemical analyzer.

14. P.W.10 Dr. Kiran Wathodkar, who was serving as Medical

Officer in General Hospital, Amravati collected the blood sample of

P.W.1 Kalpana.

11 apeal210.02

15. P.W.11 Dr. Govind Lahoti is an important witness from the

perspective of the defence. P.W.11 is an Orthopedic Surgeon in whose

hospital Kalpana was treated as outdoor patient on 01-12-1995 and

was again admitted on 17-12-1995 and discharged on 28-12-1995.

In the cross-examination, Dr. Lahoti admits that it was the

injured Kalpana who gave the history of the injury which is recorded in

Exhibit 96. The history recorded in Exhibit 96 is "fall from train

(running)".

16. P.W.12 Motiram Ramchaware is the Naib-Tahsildar and

Executive Magistrate who recorded the dying declaration of the injured

Kalpana on 30-11-1995. In view of the survival of Kalpana, the

statement recorded as a dying declaration (Exhibit 108) would be a

statement akin to one recorded under Section 164 of the Criminal

Procedure Code.

P.W.12 denies the suggestion that statement Exhibit 108

was narrated not by Kalpana but by her relatives.

17. P.W.13 Dr. Kiran Deshmukh certified that injured Kalpana

was fit to record statement Exhibit 108.

12 apeal210.02

18. P.W.14 Patel Mansuhkha Hayatkhan, who was the Station

House Officer of Railway Police Station, Akola, is one of the

investigating officers, who registered Crime 72/1995 under Section

307 and 498-A read with Section 34 of the IPC.

In the cross-examination, P.W.14 admits that he did record

the statement of D.W.1 Avinash Malode. He admits that Avinash

Malode was a co-passenger in the compartment in which the injured

Kalpana was traveling and that it was revealed in the investigation that

it was D.W.1 Avinash Malode who pulled the emergency chain and

took Kalpana to the Railway Hospital with the help of railway

personnel. P.W.14 is not in a position to explain the non-examination

of Avinash Malode as witness. He, however, denies the suggestion that

Avinash Malode is not examined as prosecution witness since his

evidence would have gone against the prosecution.

19. P.W.15 Amanullakhan, then attached to Borgaon Manju

Police Station as Police Sub-Inspector proves first information report

Exhibit 122 registered at Borgaon Manju Police Station. P.W.15 has

recorded statements of witnesses on 04-12-1995.

In the cross-examination, the omissions which are brought

out in the evidence of P.W.1 Kalpana and her mother P.W.4 Kantabai

13 apeal210.02

are proved.

20. The defence has examined Avinash Malode as D.W.1. He

has deposed that he boarded the train at Sevagram and was sitting on a

single seat and had a view of the lavatory. He has deposed to have

seen one lady in green saree carrying a small baby to the lavatory,

initially the small girl entered the lavatory, the lady in green saree was

standing by the side of the lavatory and then went out of the view.

D.W.1 states that one lady co-passenger sitting near the window

shouted loudly that the lady in green saree fell down from the train.

He rushed towards the door, there was nobody at the door and he

noticed a lady lying on the down track. He pulled the emergency chain

and alongwith the other passengers got down from the train. The

accused told the public that their lady companion was not in the

compartment. The train was taken in reverse to the spot of the

incident. D.W.1 and other passengers again got down from the train.

The injured lady was shouting in pain. She was taken on the train, and

was then carried on stretcher to the Railway Hospital, Akola. The

doctor was not available. One of the staff in the hospital noted the

name of D.W.1 and arranged an ambulance. The injured was taken to

the General Hospital, Akola and admitted in Ward 1. The accused

14 apeal210.02

came to the General Hospital. D.W.1 left the hospital after the doctor

arrived. D.W.1 states that after completion of work, he went to

Chandrapur. However, since he was on duty, he did not receive the

message of the police that his statement is to be recored. D.W.1 could

not come to Akola due to his employment and it was only when he

visited Akola a month after the incident for personal work that he went

to the Railway Police Station, Akola and gave the statement.

Strangely, contrary to the version of the prosecution, it

was suggested to D.W.1 in the cross-examination that he was not

travelling in the compartment in which the injured Kalpana was

travelling.

21. D.W.2 is Dr. Sandeep Arsad, who is also examined by the

prosecution as P.W.8. He has proved fifteen pages of bed-head-ticket

(Exhibit 134) which records the cause of injury as railway accident.

D.W.2 states that the history was given by the injured Kalpana. He

states that although the general condition of Kalpana was not

satisfactory, she was conscious. D.W.2 states that Kalpana was brought

to the hospital by accused Tara. In the cross-examination, D.W.2

admits that he has not mentioned in the bed-head-ticket that the

history of the patient was given by the patient herself.

15 apeal210.02

22. The learned Senior Counsel Shri A.V. Gupta submits that

in the teeth of the evidence on record, the learned Sessions Judge fell

in serious error in recording a finding that the prosecution has proved

the offence beyond reasonable doubt. The defence of the accused that

Kalpana suffered injuries due to accidental fall from the running train

is more than amply probablised on the touchstone of preponderance of

probabilities, which is the limited burden which the accused is

expected to discharge, is the submission. The learned Sessions Judge

fell in serious error in viewing the defence evidence with instinctive

suspicion, is the submission. Reliance is placed on the enunciation of

law in Dudh Nath Pandey v. State of U.P. reported in AIR 1981 SC

911 which reads thus :

"19. Counsel for the appellant pressed hard upon us that the defence evidence establishes the alibi of the appellant. We think not. The evidence led by the appellant to show that, at the relevant time, he was on duty at his usual place of work at Naini has a certain amount of plausibility but that is about all. The High Court and the Sessions Court have pointed out many a reason why that evidence cannot be accepted as true. The appellant's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving evidence suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory. We do not want to attribute motives to them merely because they were examined by the defence. Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts

16 apeal210.02

ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. Granting that D. Ws. 1 to 5 are right, their evidence, particularly in the light of the evidence of the two Court witnesses, is insufficient to prove that the appellant could not have been present near the Hathi Park at about 9-00 A.M. when the murder of Pappoo was committed. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant's presence at the Naini factory at 8-30 A.M. and at the scene of offence at 9.00 A.M. So short is the distance between the two points. The workers punch their cards when they enter the factory but when they leave the factory, they do not have to punch the time of their exit. The appellant, in all probability, went to the factory at the appointed hour, left it immediately and went in search of his prey. He knew when, precisely, Pappoo would return after dropping Ranjana at the school. The appellant appears to have attempted to go back to his work but that involved the risk of the time of his re-entry being punched again. That is how he was arrested at about 2-30 P.M. while he was loitering near the pan-shop in front of the factory. There is no truth in the claim that he was arrested from inside the factory. That settles the issue of guilt."

To similar effect are the observations of the Hon'ble Apex

Court in Munshi Prasad and others v. State of Bihar reported in

2002(1) SCC 351.

17 apeal210.02

"3. Without attributing any motive and taking the evidence on its face value, therefore, it appears that the place of occurrence was at 400 - 500 yards from the place of panchayat and it is on this piece of evidence, the learned Advocate for the State heavily relied upon and contended that the distance was far too short so as to be an impossibility for the accused to be at the place of occurrence - we cannot but lend concurrence to such a submission : A distance of 400-500 yards cannot possibly be said to be "presence elsewhere'- it is not an impossibility to be at the place of occurrence and also at the panchayat meet, the distance being as noticed above : The evidence on record itself negates the plea and we are thus unable lo record our concurrence as regards acceptance of the plea of alibi as raised in the appeal. Before drawing the curtain on this score however, we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence-witnesses arc entitled to equal respect and treatment as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of" the prosecution - a lapse on the part of the defence witness cannot be differentiated and be treated differently than that of the prosecutors' witnesses."

23. Per contra, the learned Additional Public Prosecutor Shri

N.B. Jawade would submit that the judgment and order of conviction is

unexceptionable. The testimony of injured Kalpana has withstood the

test of cross-examination, is implicitly reliable and confidence inspiring,

is the submission. The evidence of D.W.1 Avinash Malode is rendered

suspect since D.W.1 claims to have seen a lady in green saree carrying

18 apeal210.02

a small baby to the lavatory. It is neither the version of the prosecution

nor the version of the defendant that the injured Kalpana went to the

lavatory with a child, points out the learned Additional Public

Prosecutor. The defence of false implication is highly improbable and a

marital discord or strained relationship would hardly impel a wife to

falsely implicate the widow and wife of the husband's brothers and her

husband in a grave offence, is the submission.

24. The accused and Ghanshyamdas are acquitted of offence

punishable under Section 498-A of the IPC. It is, however, indubitable

that the inter se relations between the accused and injured Kalpana

were strained. Kalpana, in her deposition, has not only alleged mental

and physical abuse in relation to a unlawful demand, she has hurled a

grave accusation that her husband Ghanshyamdas and accused

Kanchan were in illicit relationship. It is true that a strained

relationship is a double edged sword and may furnish a motive for the

crime or a motive for false implication. Prudence demands that the

evidence must be closely scrutinized and the conscious of the Court

must be satisfied that false implication is ruled out and that the

material on record do not suggest any hypothesis other than the guilt

of the accused.

19 apeal210.02

25. The deposition of P.W.1 Kalpana is that she regained

consciousness on 25-11-1995 and before she lost conscious again, she

disclosed to her parents that the accused pushed her from the running

train. This is also the version of P.W.4 Kantabai. The failure of P.W.4

to report the disclosure to police is inexplicable and is against natural

human conduct.

26. The incident occurred on 24-11-1995. P.W.1 claims to

have disclosed the incident to her parents on 25-11-1995. I have

already noted that the failure of her parents to report such a serious

incident to police is highly unnatural. The next disclosure, according to

the prosecution, is in the statement recorded as dying declaration on

30-11-1995. P.W.1 Kalpana claims that after ten to fifteen minutes of

her disclosure to her parents on 25-11-1995, she again lost

consciousness which she used to regain intermittently only for few

minutes. The said assertion is rendered suspect in view of the medical

treatment papers Exhibit 134 which records that Kalpana was

conscious when she was admitted to Civil Hospital, Akola. A note

taken on 26-11-1998 at 11-00 a.m. records that Kalpana complained of

headache. The possibility that P.W.1 Kalpana is claiming to have lost

consciousness between 25-11-1995 to 30-11-1995 to explain her failure

20 apeal210.02

to lodge a police report with promptitude, is a real possibility.

27. D.W.2 Dr. Sandeep Arsad, who is also examined by the

prosecution as P.W.8, has proved the bed-head-ticket (Exhibit 134)

which records that injured Kalpana was conscious when she was

admitted to General Hospital, Akola on 24-11-1995. In the medical

history the cause of the injury is recorded as railway accident.

28. D.W.2 asserts that the history was given by the patient

although, in the cross-examination, he admits that the bed-head-ticket

does not reveal whether the history of the patient was given by the

patient herself or her relatives. Irrefutably, D.W.2 examined injured

Kalpana on 24-11-1995. The admission in the cross-examination

notwithstanding I have no reason to disbelieve the assertion of D.W.2

that the history was narrated by the patient-P.W.1. Be it noted, that

after bringing on record that the bed-head-ticket does not mention that

the history was narrated by the patient herself, no follow up suggestion

was given to D.W.2 that the history was not narrated by the patient

Kalpana and that his evidence to the said effect was untrue or

incorrect.

The evidence of D.W.2 that injured Kalpana stated the

21 apeal210.02

cause of the injury as accidental fall is corroborated by P.W.11 Dr.

Govind Lahoti who has deposed that the cause of injury "fall from train

(running)" recorded in Exhibit 99 is as per the history given by P.W.1

Kalpana. P.W.1 is concededly not declared hostile and his evidence

would ordinarily bind the prosecution.

29. The learned Senior Counsel Shri A.V. Gupta has invited my

attention to the observations of the Hon'ble Apex Court in Mukhtiar

Ahmed Ansari vs. State (NCT of Delhi) reported in (2005) 5 SCC 258

thus:

"29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the prosecution. The prosecution never declared PW 1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.

30. A similar question came up for consideration before this Court in Raja Ram vs. State of Rajasthan. In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution."

22 apeal210.02

The learned Senior Counsel further relies on the

observations of the Hon'ble Apex Court in Raja Ram vs. State of

Rajasthan reported in (2005) 5 SCC 272 thus :

"9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial court to seek permission of the court to heard (sic declare) P.W.8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8's testimony can be sidelined."

30. It is admitted by the investigating officer that he did record

the statement of D.W.1 Avinash Malode during the investigation. No

explanation is forthcoming as to why the prosecution did not examine

Avinash Malode. Concededly, the investigation did reveal that Avinash

Malode was travelling in the same compartment as P.W.1. It was

Avinash Malode who pulled the emergency chain and accompanied

P.W.1 to the hospital. It is trite law that it is ultimately for the

23 apeal210.02

prosecution to decide whom to examine as witness. However, failure

of the prosecution to examine a witness who could have unfolded the

narrative assumes some significance. However, the learned Additional

Public Prosecutor is to a certain extent is justified in the submission

that since D.W.1 Avinash Malode speaks of a lady in green saree

entering the lavatory with a girl child, which is neither the version of

the prosecution nor that of the defence, and that the testimony must be

tested with caution.

31. The evidence on record, even if the testimony of D.W.1

Avinash Malode is kept out of consideration, creates a reasonable

doubt about the veracity of the prosecution version. The defence is

successful in demonstrating the existence of an alternate hypothesis

incompatible with the guilt of the accused. The benefit of the doubt

must necessarily go in favour of the accused. If two views are possible,

the view in favour of the accused must be adopted is a golden thread

which runs though the web of the criminal jurisprudence. It would be

apposite to refer to the observations of the Hon'ble Apex Court in Kali

Ram v. State of Himachal Pradesh reported in AIR 1973 SC 2773

which read thus :

24 apeal210.02

"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh, Criminal Appeal No.7 of 1972, D/- 6-8-1973 = (reported in AIR 1973 SC 2407) criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures."

25 apeal210.02

Equally relevant are the observations of the Hon'ble Apex

Court in M.G. Agrawal v. State of Maharashtra reported in AIR 1963

SC 200 thus :

"The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain f act is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistently only with his guilt."

32. Having given my anxious consideration to the evidence on

record, I am not persuaded to hold that the prosecution has proved the

offence beyond reasonable doubt. The evidence does raise a perturbing

suspicion. However, the gulf between suspicion and proof must be

bridged by cogent and impeachable evidence ruling out every

hypothesis other than the guilt of the accused. In Sujit Biswas vs.

State of Asam reported in (2013) 12 SCC 406, the Hon'ble Apex Court

observes thus :

"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how

26 apeal210.02

strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar & Anr. v. State of M.P., State v. Mahender Singh Dahiya and Ramesh Harijan v. State of U.P.)."

The jurisprudential philosophy that the life and liberty of

an accused is too sacred to be sacrificed at the alter of suspicion,

howsoever strong the suspicion may be, mandates that the judgment

and order impugned must be set aside, and is accordingly set aside.

The accused are acquitted of offence punishable under Section 307

read with Section 34 of the Indian Penal Code. The bail bond of the

27 apeal210.02

accused shall stand discharged. Fine paid by the accused, if any be

refunded to them.

The appeal is allowed in the above terms.

JUDGE

adgokar