Bombay High Court

State Of Mah. Thr. Pso Selu vs Suresh Udhaorao Waghmare And 3 ... on 31 July, 2018

Bench: Manish Pitale

                                      1                  Apeal579-03.odt        



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

                    Criminal Appeal No.579 of 2003
                                  ...


State of Maharashtra,
through Police Station Officer,
Police Station Selu.                               ..        APPELLANT


                               .. Versus ..


1. Suresh s/o Udhaorao Waghmare,
   Aged about 32 years,

2. Salimkha Ayubkha Pathan,
   Aged about 40 years,

3. Hari s/o Tukaram Deotale,
   Aged about 25 years,

4. Satish @ Natu s/o Sharadrao
   Nandanwar, Aged about 21 yrs.

    All resident of Selu,
    Tahsil Selu, Dist. Wardha.                ..          RESPONDENTS


Mrs. Geeta Tiwari, APP for Appellant.
Mr. A.S. Manohar, Advocate for Respondent Nos. 1 & 2.
Mr. A.A. Choubey, Advocate for Respondent Nos. 3 & 4.
                   ....

                         CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT     : JULY 24, 2018.
DATE OF PRONOUNCING JUDGMENT   : JULY 31, 2018


JUDGMENT

The State is in appeal against judgment and order

2 Apeal579-03.odt

dated 23.05.2003 passed by the Court of Ad-hoc Additional

Sessions Judge, Wardha (trial Court) in Sessions Trial No.

156/2001, whereby the trial Court has acquitted all the twelve

accused persons in the present case.

2. According to the prosecution case, the victim Rajjan

Mishra (PW4) had visited office of the Congress Committee in a

building located in Tehsil Seloo, district Wardha, on 20.08.2000

at about 3 p.m. Kamalkishore Mishra -PW6, brother of the said

victim, had a banana shop in one of the blocks in the said

building. At the time when the said victim Rajjan Mishra PW4

was sitting in the office, the accused along with other persons

reached the spot armed with sticks, iron pipes, swords, knife,

tiger's nails and Vastara and started assaulting Rajjan Mishra

PW4. At that point in time, apart from the said Kamalkishore

Mishra PW6, Ganpat Wandile (PW1) the complainant, Nathu

Pohane PW7 and other persons were present in the banana

shop of Kamalkishore Mishra PW6. Accused No.1 Suresh

(respondent no.1 herein) inflicted injury on the right side of

chest of Rajjan Mishra PW4 by means of tiger's nail whereas

accused No. 8 Satish (respondent no.4 herein) inflicted injury

on the neck of the said victim by means of Vastara. According

to the prosecution, on Kamalkishore Mishra PW6 shouting,

3 Apeal579-03.odt

others reached there while accused No.10 Prakash and accused

No.7 Vijay assaulted the said Kamalkishore Mishra PW6 with

sword and iron pipe, but he saved himself by lifting a bench.

Due to the said assault, a large number of persons gathered at

the spot of the incident.

3. Head Constable Jageshwar Mishra PW11 was said to

have been present near a pan stall where he noticed accused

No.1 Suresh and others proceeding and shouting with weapons

in their hands, due to which he rushed to the Police Station at

Seloo and gave information. He along with Constable

Munishwar and Police Constable Namdeo rushed to the spot of

the incident where they saw that people had gathered and that

the assailants were running away. The injured victim Rajjan

Mishra PW4 was taken to the Primary Health Centre at Seloo

where he was given initial treatment and then he was sent to

the Mahatma Gandhi Institute of Medical Sciences Hospital,

Sewagram. The Police and the Executive Magistrate recorded

the statement of the said victim. In the meanwhile, the

informant Ganpat Wandile (PW1) reached the Police Station at

Seloo and lodged a report which was reduced into writing and

first information report (FIR) was registered against the

accused. Spot panchanama was prepared by the Police and

4 Apeal579-03.odt

upon arrest of the accused persons on different dates, on the

basis of disclosure statements, the weapons of assault i.e.

knife, iron pipe, tiger's nails, sword, wooden stick and Vastara

were recovered. Test identification parade was conducted and

articles were seized from the accused persons, which were sent

for forensic analysis, statements of witnesses were recorded

and charge sheet was submitted against the accused. The

Court framed charge against all the accused for offences under

Sections 147, 148, 149, 452 and 307 of the Indian Penal Code.

4. The prosecution examined 20 witnesses in support of

its case. The material witnesses were PW1 Ganpat

(complainant), PW2 Sunil (eyewitness), PW3 Medical Officer,

PW4 injured victim, PW5 Dnyaneshwar (eyewitness), PW6

brother of victim (also injured), PW7 Nathu, PW9 Suhas Head

Constable, PW10 Dnyaneshwar Head Constable, PW11

Jageshwar Head Constable, PW14 investigating officer and

PW20 Naib Tahsildar who conducted test identification parade.

5. The trial Court took into consideration the oral and

documentary evidence on record. The trial Court found that

the evidence of PW20 Naib Tahsildar itself proved that the test

identification parade was not conducted as per law and that it

5 Apeal579-03.odt

was not believable. The trial Court also found that the

complainant PW1 himself had turned hostile. Other key

witnesses, including eyewitnesses, had also turned hostile and,

therefore, the most crucial evidence was that of the injured

victim himself i.e. Rajjan Mishra PW4. It was also found by the

trial Court that his brother Kamalkishore Mishra could also not

be said to be an eyewitness to the incident because as per his

own evidence, when he actually reached spot of the assault,

there were large number of persons present and he had found

it difficult to make his way to the place where the injured victim

Rajjan Mishra PW4 was being assaulted. The trial Court also

found that the specific roles attributed by the prosecution

witnesses to the accused and the weapons allegedly used by

them, were of full of discrepancies and variances. Even the

evidence of the injured victim Rajjan Mishra PW4 did not bring

out the prosecution case in a proper and definite manner. It

was found that the recovery of the weapons was also rendered

doubtful and that it was difficult to convict the accused on the

basis of the evidence and material placed on record by the

prosecution.

6. In the present appeal challenging the impugned

judgment and order passed by the trial Court, the State has

6 Apeal579-03.odt

chosen to array only accused Nos. 1,2,3 and 8 as respondents.

Thus, the acquittal of all other accused has attained finality.

7. Mrs. Geeta Tiwari, learned Additional Public

Prosecutor appearing on behalf of the appellant-State,

submitted that the trial Court committed an error in acquitting

the respondents because the evidence of the injured

eyewitness i.e. Rajjan Mishra PW4, read with evidence of the

other eyewitnesses was sufficient to prove the guilt of the

accused arrayed as respondents herein. It was submitted that

there was recovery of the weapons of assault, including knife,

tiger's nails and Vastara, which also pointed towards the

involvement of the respondents in the assault on the injured

witness PW4. It was further submitted that even if the State

has chosen to file appeal only against the four respondents

herein, the provision of Section 149 of the IPC could still be

invoked to show that the accused were members of unlawful

assembly and that they were indeed guilty under Section 307

read with 149 of the IPC.

8. On the other hand, Mr. Adwait Manohar, learned

counsel appearing for the respondents, submitted that the trial

Court analysed the oral and documentary evidence on record

7 Apeal579-03.odt

in the correct perspective to find that the evidence of witnesses

was full of discrepancies and contradictions and that, therefore,

the respondents could not be held guilty. It was submitted that

evidence pertaining to the recovery of the alleged weapons of

assault, was not acceptable in terms of the requirements of law

and that, therefore, in the absence of credible evidence to

connect the respondents with the incident, the trial Court

judgment could not be interfered with. It was submitted that

although there were injuries on the body of the injured witness

PW4, the nature of evidence on record was such that it was

impossible to attribute any specific role to the respondents

herein. It was also pointed out that the complainant himself

had turned hostile and the injured witness PW4 had admitted

that he knew the assailants only by face. The test

identification parade was also disbelieved by the trial Court

and, therefore, the present appeal deserved to be dismissed.

9. Heard counsel for the parties. Although the

prosecution in the present case examined as many as 20

witnesses to prove its case, the material witnesses were the

injured victim PW4 Rajjan Mishra and other alleged

eyewitnesses including PW5 Dnyaneshwar Sontakke, PW6

Kamalkishore Mishra and PW7 Nathu Pohane. The evidence of

8 Apeal579-03.odt

the police persons was not relevant for describing the manner

in which the assault took place and the persons who could be

held responsible because all of them reached the place of

incident when the assault had already finished and there was a

crowd of large number of persons at the place of incident. The

trial Court has taken into consideration the evidence of the

prosecution witnesses and it has found that there were

inconsistencies in the evidence of the eyewitnesses and that

even the recovery of weapons was rendered doubtful. It was

found that even as per the prosecution case, there were large

number of persons present at the time of the incident and the

evidence on record was not sufficient to identify each of the

accused and to ascribe specific role to each of them.

10. In this light, it would be necessary to appreciate the

evidence and material on record. The most important witness

in the present case is the injured witness himself i.e. PW4

Rajjan Mishra. A perusal of his evidence shows that respondent

Nos. 1 to 4 along with other persons entered the office and

assaulted him. He has generally stated that they had tiger's

nails and other sharp edged weapons by means of which they

assaulted him. Thereafter he has specifically named

respondent Nos. 1,2 and 3 as being the persons who along with

9 Apeal579-03.odt

others had assaulted him. He further stated that PW5

Dnyaneshwar, PW6 Kamalkishore Mishra and PW7 Nathu

Pohane were also present in the banana shop near the office

where the incident took place. But in his cross-examination,

this witness has conceded that he had not named respondent

Nos. 2 and 3 in his statement to the Police. In fact, he

conceded that in his statement he had only stated that five to

six persons had assaulted him and he could identify them by

face and that he did not tell their names. Thus, it becomes

clear that PW4 Rajjan Mishra did not know at the time of the

incident as to who were the persons who had assaulted him.

11. In this backdrop, it becomes crucial to examine as to

how all the accused including the respondents herein were

specifically named in the report submitted to the Police, on the

basis of which the FIR was registered. The informant-

complainant in the present case was Ganpat Wandile PW1, but

this witness was declared hostile, because in his evidence

before the Court he stated that he did not know the accused.

He only named respondent no.1 and stated that the said

respondent and some other persons entered the said office and

that he immediately ran away from the spot. In his cross-

examination           by       the   prosecution,   nothing        material             was





                                10                    Apeal579-03.odt        


extracted.         Thus, the very initiation of the registration of

offences against the accused, including the respondents

herein, was rendered doubtful.

12. The evidence of the other eyewitnesses needs to be

examined. PW5 Dnyaneshwar Sontakke in his evidence before

the Court specifically named only respondent Nos. 1 and 4,

stating that the respondent no.1 used tiger's nail to inflict

injury on the chest of the victim PW4. He stated that

respondent no.4 had inflicted injury on the right side of the

face of the injured PW4 by means of a Vastara. But, in cross-

examination, this witness stated that there were about 100

persons who had gathered at the time of the incident. It is

significant that while this witness attributed specific roles and

use of weapons by respondent Nos. 1 and 4, the injured victim

PW4 Rajjan Mishra himself had not attributed such specific

roles and use of weapons by the said respondents.

13. PW6 Kamalkishore Mishra was the brother of the

injured victim PW4 and he was in his shop in the same building

where the said office was located. This witness stated in his

evidence that respondent Nos.1 and 4 assaulted his brother

and inflicted injuries upon which he rushed and those persons

11 Apeal579-03.odt

tried to assault him also. He had stated in his examination-in-

chief that he came to know about the assault when Nana

Sontakke and others came to him and said that the said Rajjan

(PW4) was being assaulted, upon which he rushed at the spot

and challenged the assailants. But in cross-examination, this

witness conceded that he had not given such details in his

statement recorded by the Police. He also admitted that from

his shop the injured PW4 could not be seen and further that

when he was trying to enter the office i.e. the spot of the

incident, he was obstructed by persons who were standing

outside. Thus, the evidence of this witness makes it difficult to

believe that he had actually seen the assault that took place on

injured victim PW4 and the persons responsible for the same.

14. PW7 Nathu Pohane was another alleged eyewitness.

He stated that his shop was located after about two shops from

the office where the incident took place. This witness also

generally stated that respondent no.1 and his associates

reached the office and that he heard shouts. Upon refreshing

his memory, this witness named most of the accused, including

the respondents herein and he stated that they were armed

with sticks, sword and iron rods when they entered the office

where the incident took place. He was declared hostile and

12 Apeal579-03.odt

cross-examined on behalf of the prosecution but nothing

material was extracted. In the cross-examination conducted on

behalf of the accused, this witness stated that there were at

least about 50 persons gathered at the spot of the incident.

15. An analysis of the evidence of the said injured

witness PW4 and the evidence of the aforesaid eyewitnesses,

shows that while eyewitnesses claimed that the injured PW4

was assaulted in the office, but none of them were able to

identify the accused or the roles played by them, as also the

weapons used by the accused to carry out the assault. Even

the injured witness PW4 stated that he could identify the

accused by their face, showing that he did not know their

names. It has also come in their evidence that there were 50

to 100 or even more persons gathered at the spot of the

incident when the assault took place on the injured witness

PW4. In this situation, particularly when the informant-

complainant himself had turned hostile and he had not

supported the prosecution case, it was necessary that a proper

test identification parade was carried out by the prosecution for

identification of the accused. This was all the more necessary

when the injured victim PW4 had admitted that he knew the

accused only by face and that he did not know their names.

13 Apeal579-03.odt

16. The trial Court has found that the evidence on record

demonstrated that the test identification parade was not

carried out as per requirements of law. In this context,

evidence of PW20 i.e. the Naib Tahsildar becomes crucial as it

was in his office that the test identification parade was carried

out. In the cross-examination, this witness has admitted that

he had not issued requisition for calling the panchas or even

the injured witness PW4 Rajjan Mishra, who was supposed to

identify the accused. He even admitted that he did not issue

requisition for calling for the accused and that the details of the

clothes worn by the accused were also not recorded. He stated

that while the accused were asked to change their clothes,

they did not do so. He also admitted that the persons other

than the accused who were called while conducting the

identification parade, had different height and complexion as

compared to that of the accused. The memoranda at Exhs.

133 and 134 recorded after the test identification parade and

the evidence of the said PW20 show that the identification

parade was not conducted as per rules specified in the Criminal

Manual. The safeguards while conducting such a parade like

preventing the witnesses from seeing the suspects before they

are paraded and that two suspects of roughly similar

14 Apeal579-03.odt

appearances need to be parade with at least 12 other persons,

were not followed when the test identification parade was

conducted in the present case. Therefore, no error can be

found with the finding rendered by the trial Court that the test

identification parade was not carried out, in a proper manner

and that the prosecution could not rely upon the same in order

to claim that the accused were indeed involved in the incident.

Once the identification parade is held to be vitiated, there is

lack of evidence in the present case to render a finding that the

accused, including the respondents herein, were present at the

spot of the incident.

17. As regards recovery of the weapons of assault, the

evidence of the panch witnesses and that of the investigating

officer does not appear to be satisfactory. It is found from the

record that when the knife was seized, allegedly at the behest

of the respondent no.2, even according to the panch witness

PW8 in this regard, it was stated that the police persons and

the panch witness stood outside the house while the said

accused (respondent no.2) went inside and produced the knife

from an Almirah in the house, which was then seized. Thus

there was absence of credible evidence even for recovery of

the said weapon of assault. This was apart from the fact that

15 Apeal579-03.odt

there was other evidence on the record which indicated that

the knife was recovered after the said respondent was chased

and apprehended. The recovery of the other weapons of

assault including the tiger's nail and Vastara was also

surrounded by such doubtful circumstances. It was also

strange that no blood stains were found on the Vastara and

knife, although it was specifically claimed by the alleged

eyewitnesses that injury had been inflicted on the injured

witness PW4 by means of the said weapons.

18. As regards injuries suffered by the injured witness

PW4, the record shows that when he was initially examined

there were only two injuries found, while when he was later

examined, there were four injuries found on his body. He was

first examined at the local Health Centre in Seloo where only

two injuries were recorded while at the Kasturba Hospital at

Sewagram where he was referred, four injuries were recorded.

The Doctor PW3 who examined the injured witness PW4 at

Sewagram, gave details of the four injuries seen on his body

and he stated that the incised injuries could be possible by a

sharp edged tin sheet if a scuffle took place. This was

specifically put to the Doctor PW3 in cross-examination for the

reason that it was brought on record in the evidence that there

16 Apeal579-03.odt

were tin sheets at the office where the incident had taken

place.

19. The evidence with regard to seizure of clothes and

the forensic analysis of the same showed that no stains of

blood were found on the clothes of the injured witness PW4.

This was a factor clearly against the claim made by the

prosecution witnesses, particularly the eyewitnesses that the

injured witness PW4 had suffered serious injuries due to which

there was bleeding. The medical evidence on record

demonstrated that the injuries found on the person of injured

witness PW4 were simple in nature and that the Doctor PW3

had conceded in cross-examination that there could not be said

to be any danger to the life of the injured, due to the injuries

suffered.

20. All the aforesaid factors pertaining to the nature of

evidence of eyewitnesses, absolute lack of evidence to prove

identification of the accused, including the respondents,

doubtful nature of recovery of weapons of assault and lack of

cogent evidence to prove role of the accused, particularly the

respondents herein, as also the weapon of assault used by

each, go to show that the trial Court could not be said to have

17 Apeal579-03.odt

committed an error in acquitting the accused persons,

including the respondents herein. The totality of the evidence

and material on record shows that an incident did take place

where the injured victim PW4 suffered injuries, but there was

lack of evidence to prove as to who was responsible for the

same.

21. The law pertaining to the approach to be adopted

while considering an appeal against acquittal, is well settled. It

has been held in Babu .vs. State of Kerala - (2010) 9

Supreme Court Cases 189, as follows:-

"19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

22. Thus, it becomes clear that the presumption of

innocence of accused becomes further strengthen when the

trial Court acquits the accused. In this situation, unless the

appellate Court comes to a conclusion that each and every

finding rendered by the trial Court was perverse, no

interference would be warranted in an order of acquittal. On

the available material, if the trial Court has taken a possible

view and two views are possible, the appellate Court would not

18 Apeal579-03.odt

interfere with an order of acquittal.

23. Applying the said position of law to the facts of the

present case, it becomes evident that the appellant-State has