The State Of Maharashtra vs Gopal Mahadev Godkar And Ors
2021 Latest Caselaw 8456 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO.977 OF 2003

 State of Maharashtra                           ) ....Appellant/Complainant
               V/s.
 1. Gopal Mahadev Godkar                        )
 Age : 35 yrs.,                                 )
 R/o. Aravali Tank, Taluka - Vengurla,          )
 District - Sindhudurg                          )
 2. Gitanjali Gopal Godkar                      )
 Age : 28 yrs.,                                 )
 R/o. Aravali Tank, Taluka - Vengurla,          )
 District - Sindhudurg                          )
3. Yogita Ladoba Godkar                    )
Age : 19 yrs.,                             )
R/o. Aravali Tank, Taluka - Vengurla,      )
District - Sindhudurg                      ) .....Respondents/accused
                                    ----
Mrs. M.M. Deshmukh, APP for State - Appellant.
Ms. Yashaswita Apte i/b. Mr. Harshad Bhadbhade for respondent nos.1 to 3.
                                    ----
                                         CORAM : K.R.SHRIRAM, J.

                                         DATE      : 25th JUNE 2021
ORAL JUDGMENT :

1                 This is an appeal filed by the State impugning an order and

judgment dated 8th May 2003 passed by Judicial Magistrate First Class,

Vengurla, acquitting respondents (accused) of offences punishable under

Sections 323 (Punishment for voluntarily causing hurt ), 324 (Voluntarily

causing hurt by dangerous weapons or means ), 325 (Punishment for

voluntarily causing grievous hurt), 504 (Intentional insult with intent to

provoke breach of the peace) read with Section 34 (Acts done by several

persons in furtherance of common intention) of the Indian Penal Code

(IPC).

Meera Jadhav




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2                According to prosecution, complainant who was the owner of

land survey no.291 at village Aravali, Taluka Vengurla, where he was

growing cashew nuts and surangi flowers, on 19 th March 1997 early

morning, when his first wife and son went to the land for maintenance of

the cashew nuts and flower plants, complainant heard accused no.1's voice

abusing somebody. Complainant (P.W.-1) got concerned so he rushed to the

spot from where the voice was emanating and he was accompanied by his

second wife. When complainant reached the spot, he saw accused no.1, his

wife, accused no.2 and his niece - accused no.3, were beating his first wife

and her son with weapons, namely, accused no.1 had stick in his hand and

accused nos.2 and 3 had iron bars in their hand. On seeing complainant,

accused no.1 rushed with the stick in his hand towards complainant and hit

complainant with the stick. Complainant blocked the stick with his forearms

resulting in serious injuries to his forearms. At that time, accused also

assaulted second wife of complainant and then went away. Thereafter,

Complainant and all other injured persons went in an auto rickshaw to the

Rural Health Centere, Shiroda for medical treatment. From the Hospital,

PW-3 called the police over telephone. The police arrived at the hospital

and recorded complaint/ report of P.W.-1. Statements of other injured were

also recorded. Next day with the police they all visited the sport of

offence and in the presence of panch witness spot panchnama was carried

out.

Meera Jadhav




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3                    In the course of investigation, accused were arrested and the

sticks and two iron bars, which were used for the attack, were recovered

from the possession of accused no.3. After completion of

investigation, chargesheet was filed. The accused pleaded not guilty and

claimed to be tried.

4 It is the case of the accused that admittedly, there were a

scuffle that took place in the land bearing survey no.290 that was

belonging to accused and not in survey no.291 as alleged by complainant

and it was the prosecution's witness who had assaulted the accused and

caused serious injuries. According to the accused, injuries were sustained by

the prosecution's witness when they fell down during the scuffle. The

accused have also filed complaint against prosecution's witness and this was

a counter blast.

5 To drive home the charge, prosecution has examined

9 witnesses. PW-5 and PW-6, who are panch witnesses for seizure of the

weapons used in the offence, have turned hostile. Attempt to prove the

seizure was made through the investigating officer that is PW-9. Trial Court

has rightly come to the conclusion that P.W.-9 has carried out a biased

investigation in favour of complainant. P.W.-9 in his cross examination

admits that he was aware that the witnesses in the present case were the

accused in the counter criminal case filed by the present accused and that

the witnesses have also admitted the fact. P.W.-9 also admits that at the time

of arrest, panchnama of accused no.1 was prepared on 19 th March 1997.

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P.W.-9 found marks of beating on the body of accused no.1 and there was

also swelling on his hand but P.W.-9 did not bother to enquire further.

PW- 9 investigating officer also admits that the arrest panchnama of accused

nos.2 and 3 also shows that at the time of arrest there were injuries on the

head, knee, hands and legs of accused no.3 and there were injuries on right

hand and stomach of accused no.2. P.W.-9 does not seek explanation for

these injuries from the prosecution's witnesses at that stage. P.W.-9 also has

not investigated about the injuries sustained by the accused because it is the

case of the accused that these injuries were caused by prosecution's

witnesses, therefore, the trial court was correct in concluding that the

prosecution has suppressed material facts from the court and P.W.-9 has

carried out a biased investigation in favour of complainant.

6 Further, there were many houses near the place of incidence but

no independent witness has been examined. P.W.-4, who is the panch

witness for the spot, in his examination has admitted that P.W.-1

complainant is his brother-in-law, i.e, husband of his sister. P.W.-4 says that

he lives 3-4 km away from the place of incident and on the day of

panchnama he had gone to his sister's house at which time, police called

him to act as Panch witness. P.W-4 admits in his cross examination that he

did inform the police that complainant was married to his sister.

Notwithstanding that, the prosecution did not call an independent panch

witness which is very relevant from what I have observed earlier that the

investigating officer has carried out a biased investigation. Investigating

Meera Jadhav

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officer also has admitted that land bearing survey no.290 and survey no.291

are adjacent to each other and there is a dispute going on between the

family of complainant and the family of accused.

7 Trial Court, therefore, was right in concluding that the

prosecution has not proved its case beyond reasonable doubt. P.W.-1 has also

admitted that Vengurla police have a summary criminal case against him, his

son and two wives on the allegations that on 19 th March 1997, that is the

same day of the incident, between 7.30 a.m. to 8:30 a.m. they

assaulted accused no.1 and accused no.3 with sticks and stones and caused

injuries to them. P.W.1 also admits that a year later another complaint has

been filed by accused no.1 against complainant, his son, P.W.2 and some

other persons for attempt to commit murder of accused no.1 and his brother

and P.W.-1 was arrested. P.W.-1 admits that there is a dispute between his

family and family of accused with respect to land bearing survey no.290 and

the accused have filed complaint against him in the police station relating to

the land dispute.

8 The Apex Court in Ghurey Lal V/s. State of U.P. 1 has formulated

the factors to be kept in mind by the Appellate Court while hearing an appeal

against acquittal. Paragraph Nos.72 and 73 of the said judgment read as under:

72. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Section 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and

1. (2008) 10 SCC 450

Meera Jadhav

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law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

Meera Jadhav




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The Apex Court in many other judgments including Murlidhar

& Ors. V/s. State of Karnataka2 has held that unless, the conclusions reached

by the trial court are found to be palpably wrong or based on erroneous

view of the law or if such conclusions are allowed to stand, they are likely to

result in grave injustice, Appellate Court should not interfere with the

conclusions of the Trial Court. Apex Court also held that merely because the

appellate court on re-appreciation and re-evaluation of the evidence is

inclined to take a different view, interference with the judgment of acquittal

is not justified if the view taken by the trial court is a possible view.

We must also keep in mind that there is a presumption of

innocence in favour of respondent and such presumption is strengthened by

the order of acquittal passed in his favour by the Trial Court.

The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat 3

has held that if the Appellate Court holds, for reasons to be recorded that

the order of acquittal cannot at all be sustained because Appellate Court

finds the order to be palpably wrong, manifestly erroneous or demonstrably

unsustainable, Appellate Court can reappraise the evidence to arrive at its

own conclusions. In other words, if Appellate Court finds that there was

nothing wrong or manifestly erroneous with the order of the Trial Court, the

Appeal Court need not even re-appraise the evidence and arrive at its own

conclusions.

2. (2014) 5 SCC 730
3. 1996 SCC (cri) 972

Meera Jadhav




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9                There is an acquittal and therefore, there is double presumption

in favour of the accused. Firstly, the presumption of innocence available to

the accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by

a competent court of law. Secondly, the accused having secured their

acquittal, the presumption of their innocence is further reinforced,

reaffirmed and strengthened by the Trial Court. For acquitting the accused,

the Trial Court rightly observed that the prosecution had failed to prove its

case.

10 In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

acquittal, in my view, need not be interfered with.

11               Appeal dismissed.




                                                      (K.R. SHRIRAM, J.)




Meera Jadhav