Bombay High Court
Gopal Ashokrao Jadhav vs State Of Mah And Ors on 2 September, 2024
2024:BHC-AUG:21489
103-revn-337-2005.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 337 OF 2005
Gopal Ashokrao Jadhav
Age : 25 years, Occu : Education,
R/o : Degloor Road, Udgir,
Tq : Udgir, Dist : Latur. ..Petitioner
VERSUS
1. The State of Maharashtra
(Copy to be served on Govt.
Pleader, High Court of Bombay,
Bench at Aurangabad).
2. Vithal s/o Manikrao Muley
Age : 30 years,
3. Shankarrao s/o Manikrao Muley
Age : 25 years,
Both R/o. : Dongaon, at present
Back side of Bidar Naka, Udgir,
Tq : Udgir, Dist : Latur. ..Respondents
...
Advocate for Petitioner: Mr. V.C. Patil h/f Mr. U.B. Bondar
APP for Respondent/State : Ms. M.N. Ghanekar
Advocate for Respondent Nos.2 & 3 : Mr. V.R. Dhorde h/f Mr. R.N.
Dhorde
...
CORAM : S.G. MEHARE, J.
DATED : SEPTEMBER 02, 2024
ORAL JUDGMENT :-
1. This case is an example of the disrespect to the Court and
its orders, even by the counsels who have a long standing practice.
On 09.08.2024, the counsel for the petitioner had sought
adjournment. Since the Court had already granted him the last
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opportunity before that date, the Court granted him an opportunity to
advance the arguments subject to the cost of Rs.5,000/- to be
deposited in this Court. The matter was listed today. It was surprising
that Advocate Mr. U.B. Bondar and Mr. V.V. Patil who appear to have a
good standing practice did not pay heed to the Courts order and again
remained absent when the matter was called. He did not deposit the
cost of Rs. 5,000/-. Such conduct of the lawyers having good
standing practice would not pass a good message to the newly
entered lawyer. If the Court does not take stringent action against
such a conduct, it would have been disrespecting the law. Hence, the
Sheristedar was directed to contact Advocate Mr. U.B. Bondar on his
phone and report his reply. However in the meantime, Advocate Mr.
V.V. Patil appeared and made a statement that Mr. Bonder has gone to
the funeral of the family member of his friend. He is busy in another
matter pending before another Court. The Court expressed
displeasure on his reply. The Court informed him that he must argue
the matter else stringent action will be taken. He had no brief. The
Court was given Court papers to him. Lastly, he prepared with the
matter.
2. Heard learned counsel for the injured/petitioner and
learned counsel for the accused/respondents.
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3. The injured/petitioner has impugned the judgment and
order of the learned Additional Sessions Judge, Udgir passed in
Criminal Appeal No.1 of 2003 dated 30.08.2005.
4. The petitioner had lodged the report against the
respondents alleging that on 25.11.1997 at about 08.30 am, he went
to bring milk near Chawle Complex. When he was in front of the
Chawle Complex, both accused came in front of him and asked what
money they have to pay him. He told that they had taken a hand loan
of Rs.12,000/- The accused Vithal was holding iron rod. He assaulted
him on his head and accused Shankar assaulted him with knife and
stick on his forehead, hand and back. He fell down. Then the accused
flee away. Many people were gathered on the spot. His maternal
brother took him to the police station and police referred him to the
hospital. He was under treatment. His report was recorded in the
hospital under his signature.
5. The prosecution had examined the injured. His younger
brother and nephew were the eyewitnesses to the incident. To
corroborate the incident, the prosecution examined the medical
officer who had examined the injured immediately after the incident.
The prosecution also examined the panch witnesses. However, they
did not support the prosecution. The investigation officer proved all
panchnamas.
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6. Appreciating the evidence, the learned Trial Court held
the respondent/accused guilty for the offence punishable under
Section 324 r/w 34 of the Indian Penal Code.
7. The respondent had preferred an appeal before the
Additional Sessions Judge, Udgir. The learned Additional Sessions
Judge reversed the judgment of the Trial Court and acquitted them of
the above offences.
8. Learned counsel for the petitioner has vehemently argued
that the learned Additional Sessions Judge has not appreciated the
evidence correctly and given the findings that they had earlier enmity,
had no written document of hand loan, the knife was not recovered,
there were discrepancies in the period of happening the incident,
Joshi Hospital near the spot of the incident was absent in the spot
panchanama comparing the size of the iron rod does not match with
injuries and there were ten injuries on the person of the complainant,
if such weapon was used for assault, it would likely to cause death of
the person. He has referred to the grounds raised in the revision
memo and vehemently pressed into service the grounds of objection
against the above observations. He would submit that reading the
evidence as a whole, the incident was proved. There was no reason to
disbelieve the injured in the absence of any circumstances to believe
that the injuries were self-inflicted. Merely failing to recover the knife
was not sufficient to disbelieve the witnesses particularly the injured.
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The injured and the accused were relatives. Therefore, the written
documents of hand loan was not expected. He pointed out that the
learned Additional Sessions Judge unnecessarily weigh the previous
conviction of the father of the petitioner and civil disputes. In the
absence of the defence he has erroneously recorded the finding that
considering the past of the petitioner and his family, they were
troublesome to the accused and their families. He has erroneously
disbelieved the case only on the basis of the evidence that the injuries
were not of such a nature that the person injured may fall
unconscious. He would submit that in every case, the corroboration of
the injuries is not the mandate of law. The Court must be satisfied
that the evidence led before the Court was unbelievable based upon
the circumstances brought by the accused. The omissions and
contradictions must be material and significant. The Court must
appreciate the evidence that the evidence produced before it inspires
confidence that the incident happened. The learned Additional
Sessions Judge erred in not believing the evidence of the investigation
officer who drew the spot panchnama. The learned Additional
Sessions Judge disbelieved the evidence of ASI on a technical ground
of having no signature of the medical officer on the statement of the
injured. It was not the prosecution case that the petitioner was
suffering from serious injuries that he was unable to give the
statement due to his health. The learned Additional Sessions Judge
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without any cogent reason branded the complainant and the
witnesses as not law abiding persons. Wrong findings were recorded
that the injured and witnesses may go to any extent to lie for their
own benefit. He would submit that the appreciation of the evidence
by the learned Additional Sessions Judge is contrary to the facts of the
case and probability of the incident. The judgment and order of
conviction of the Magistrate was legal and proper but it has been
erroneously quashed and set aside.
9. Learned counsel for the accused has vehemently argued
that the witnesses as regards the incident were inconsistent. The
learned Additional Sessions Judge was correct in holding that it was
impossible to fall unconscious. There was no recovery of the weapon
under Section 27 of the Indian Evidence Act. The spot of the incident
was doubtful. The conduct of the witnesses was also unnatural. The
learned Additional Sessions Judge has correctly observed that Section
341 of the Indian Penal Code was not added. Therefore, the charges
were defective. There were material and significant contradictions
and omissions in the evidence of the witnesses. The signature of the
medical officer on the statement of the complainant reduced into
writing in the hospital was essential to believe its veracity. The
previous enmity was correctly believed. The absence of documentary
proof of hand loan was the important aspect to establish the cause of
the assault. The motive has not been proved. The presence of PW-2
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on the spot of incident was doubtful. Though the prosecution had a
case that many persons were gathered on the spot of the incident, not
a single independent witness was examined. Therefore, the learned
Additional Sessions Judge has correctly raised the doubt on the
veracity of the complainant. The complainant was not even consistent
about the injuries caused to him. The documents are prepared
antedated. The findings of the learned Additional Sessions Judge
were based on the appreciation of evidence. The Revisional Court
cannot re-appreciate the evidence and convert the judgment of the
acquittal into conviction if the view of the Trial Court is possible. To
bolster his argument, he relied on the case of Vimal Singh Vs. Khumar
Singh and Another, (1998) 7 SCC 223 . Both judgments were read
before this Court. A serious objection as regards the appreciation of
evidence by the learned Additional Sessions Judge has been raised.
The learned Additional Sessions Judge, this Court has not erred in
recording the finding that there were contradictions in the statements
of the witnesses.
10. Firstly the Court would deal with the issue whether not
adding a Section or not framing the charge of such offence vitiates the
trial.
11. The charges are framed against the accused as provided
in Section 211 of the Code of Criminal procedure ('Code' for short).
The purpose of charge is to tell an accused as precisely and concisely
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as possible of the matter with which he is charged and must convey to
him with sufficient clearness and certainty what the prosecution
intends to prove against him. Section 215 of the Code speaks of the
effect of errors in framing the charge. As per this Section error in
stating either the Section of the offence or the provision of the Section
is not material. The charge if any not framed and the offence for the
which the charge is not framed and the trial went on even then it
could not be said that the trial vitiates. The Purpose is to make the
accused know what offence he has committed and he has to refute the
credibility of the prosecution case by putting an appropriate and
relevant defence. In this case one of the Section was not applied and
charge for that offence was also not framed. The injured or
prosecution did not complain about it. For the first time the learned
first appellate Court find it and recorded it a ground to disbelieve the
prosecution. The findings of the learned Additional Session Judge that
the not framing a charge of the offence under Section 341 of I.P.C. is a
ground to raise the doubt in the prosecution witnesses is an apparent
error.
12. Not believing the injured witness and law on
corroboration also need discussion.
13. To appreciate the evidence of the injured witness, the
Court should bear in mind: (1) Their presence at the time and place
of occurrence cannot be doubted.(2) They do not have any reason to
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omit the real culprits and falsely implicate the accused. Appreciation
of evidence is the process through which a Judge knows, understands
and realizes the facts to record the conclusion. Marshaling and
appreciation of the evidence in correct perception are the souls of the
Judgment the Judge writes. Proper appreciation of the evidence
avoids the incorrect conclusion. If the evidence is to be appreciated to
believe the existence of the things that happen in the daily life of a
human being. Appropriate appreciation of the evidence appeals to the
mind of the prudent man to believe that such a thing exists or does
not exist. The evidence of the injured witness cannot be discarded in
toto on the ground of inimical disposition towards the accused when
the evidence is tested in the light of broad probabilities.
14. The law is well settled that the injured is the best
witness; he cannot substitute the wrong person for his actual assailant
and should not be disbelieved for the minor discrepancies.
15. The assailants are the close relatives of the injured.
Hence, there is no question to doubt their identification. The
evidence of such a witness could not be thrown for the minor
discrepancy in the spot of the incident when otherwise the spot of the
incident was proved by the inured and the Investigation Officer. In
such circumstances not supporting the witnesses on the spot
panchanama would not make the prosecution case doubtful. The
evidence should be appreciated as a whole. The law also well settled
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that the evidence of the Investigation Officer cannot be thrown at
thrash hold only being a Police Officer. He is the witness who visits
the spot of the incident, looks at it, searches for the incriminating
evidence, collects other circumstantial evidence from the spot of
occurrence and understands the situation by his senses. Unless his
evidence raises serious doubt about his conduct and is improbable,
the evidence of the Investigation Officer cannot be ignored for
appreciating the facts which were in his knowledge regarding the
crime.
16. Section 162 of the Criminal Procedure Code provides for
the effect of the contradictory statements of the witnesses. In its
explanation clause it has been provided that an omission to state a
fact or circumstances in the statement referred to in sub-section (1)
may amount to contradiction if the same appears to be significant and
otherwise relevant having regard to the context in which such
omission occurs and whether any omission amounts to a contradiction
in the particular context shall be a question of fact.
17. Section 145 of the Evidence Act is another provision that
speaks of the cross-examination as to previous statements in writing.
The section provides the previous statement of the witness in writing
or reduced to writing. The previous statement of the witness shall be
shown to the witness while proving the contradictions and omissions
in his/ her previous statement. The opposite side has a right either to
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prove the extraneous material brought on record of which he/she was
not made aware and those are the significant contradictions and
omissions. It is normally done to impeach the credibility of the
witness. The term 'witness' in this Section is in the context of a person
who made a statement of facts relevant to the facts in issue, which is
reduced in writing under Section 161 of the Code in criminal cases
during the investigation and before filing a charge sheet.
18. It is explicit that the statement of the witnesses earlier
recorded under Section 161 is evidence to bring the facts first-hand.
The deposition or leading the evidence before the Court of law is
substantial evidence. The veracity of each witness is tested by
considering his/her previous statement. Reading the above provisions,
it can be said that it restricts to the witness and his statement
recorded previously and not the evidence led before the Court in the
course of the trial. The evidence of one witness recorded in the Court
can not be contradicted by the evidence of another evidence recorded
in the Court during the trial.
19. Many times, there is confusion about contraction,
omission and corroboration of the evidence. Corroborative evidence is
evidence that strengthens or confirms already existing evidence. In
Courts, it is used to support the testimony of the witness. It
strengthens or makes the prosecution evidence already produced
more certain.
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20. Section 134 of the Evidence Act speaks of the number of
witnesses to be examined. It provides that no particular number of
witnesses shall in any case be required for the proof of any fact.
Neither the number of witnesses nor the quantity of evidence is
required. There should be a quality evidence. The law is well settled
that corroboration is not a rule of law but one of the cautions and
may resorted to as an assurance.
21. The Hon'ble Supreme Court in Kunju @ Balachandran vs
State Of Tamil Nadu, AIR 2008 SC 1381 held that a conviction could
be based on the testimony of a sole eyewitness. The test is whether
the evidence has a ring of truth and it is cogent, credible and
trustworthy or otherwise; corroboration would be required only if the
witness is neither wholly reliable or wholly unreliable.
22. The Court, appreciating the evidence of an injured person
corroborated with medical evidence, should record the specific
finding negating or discarding the injured, who is the first witness to
the incident. The testimony of an injured witness could not be
doubted outrightly if the weapons were recovered at the instance of
the accused and unless his evidence does not inspire the confidence
that the injuries are not possible. The Court should bear in mind the
tendency of the accused to hide, disappear or eliminate the evidence
soon after committing a crime. The recovery of a weapon at the
instance of accused is normally done after his arrest. Nowadays, the
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persons particularly the accused are well aware of the procedural law
and the legal flaws. The legal services are available at the doorsteps.
In a few cases, the accused are arrested immediately after the
incident. They get an opportunity to prepare with the defence from
the date of the commission of the offence and their arrest. The
recovery of the weapon under Section 27 of the Evidence Act is
corroborative evidence. If we follow the pronouncement of the
Hon'ble Supreme Court in Kunju (Supra), the probability of causing
no injuries by the recovered weapons at the instance of the accused
under Section 27 of the Evidence Act, particularly on its size without
any material from the Medical Officer, the testimony of the injured
could not be disbelievable, and brushed aside.
23. Bare enmity, even if proved, cannot be a ground to
discard the evidence of a witness if it inspires confidence. It is also
well settled principle of law that enmity is a double-edged weapon. It
can be a ground for false implication or for assault. Therefore, it is to
be examined with caution and diligence.
24. In normal life, the hand loan transactions between
persons are done on acquaintance, trust and faith. Taking a hand loan
from relatives is very common in India. Family relations are valued
more than creating evidence of such transactions. The learned
Additional Sessions Judge based upon no written proof of hand loan
transaction, disbelieved the injured. He also recorded the reasoning
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that the motive is not proved. The question arises for consideration
whether motive is an absolute requirement to prove the guilt.
25. Section 8 of the Evidence Act is relevant to the question
that has fallen for consideration. It speaks of the motive, preparation
and previous or subsequent conduct of the accused. It provides that
any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact. The question needs
to be dealt with in the context of a crime committed by the accused
and when the prosecution is burdened to prove a motive of the
accused. Normally, the criminal trials are based on direct or ocular
evidence or the circumstantial evidence. In the cases based upon the
circumstantial evidence require proof of a complete chain of
circumstances to infer the guilt of the accused. The direct evidence of
motive is seldom. The motive and intention of the accused are locked
in the mind of the accused. It is to be gathered from the conduct of
the accused and the circumstances of the case.
26. The Hon'ble Supreme Court in Shivaji Genu Mohite Vs.
State of Maharashtra, AIR 1973 SC 55 held that in case the
prosecution is not able to discover an impelling motive, that could not
reflect upon the credibility of a witness proved to be reliable
eyewitness. Evidence as to motive would, no doubt, go a long way in
cases wholly dependent on circumstantial evidence. Such evidence
would form one of the links in the chain of circumstantial evidence in
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such a case. But that would not be so in cases where there are
eyewitnesses of credibility, though even in such cases if a motive is
properly proved, such proof would strengthen the prosecution case
and fortify the Court in its ultimate conclusion. But that does not
mean that if motive is not established, the evidence of an eyewitness
is rendered untrustworthy.
27. The Hon'ble Supreme Court in Amitava Banerjee @ Amit
@ Bappa Banerjee vs State Of West Bengal, (2011) 12 SCC 554 held
that motive for the commission of an offence no doubt assumes
greater importance in cases resting on circumstantial evidence than
those in which direct evidence regarding the commission of the
offence is available.
28. The Court has to appreciate the evidence as a whole to
arrive at the conclusion that whether, in the given circumstances, the
incident was possible. The long and previous enmity is also not the
ground to disbelieve the witnesses if their evidence inspires
confidence. A small discrepancy or omission to mention any
landmark on the spot of the incident is also not the ground to throw
the evidence of the injured. In the absence of any cogent and reliable
evidence, the Court cannot brand a person speaks lie, and he is
troublesome. The mere conviction of one of the family members is
also not an acceptable reason to disbelieve the veracity of the
witnesses, particularly the injured. It is not essential in each case to
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have corroborative evidence. The Court is of the view that the
discrepancy in the period of the incident is also not the ground to
throw the evidence of the witnesses. The Court cannot imagine why a
particular person/witness did not act in a particular way. The primary
rule of appreciating the evidence is to evaluate the evidence produced
by the prosecution. What the prosecution ought to have done has no
relevance to the appreciation of the evidence.
29. The law on the legal issue raised, and examining the
judgment and reasoning of the learned Additional Sessions Judge,
Udgir, the Court is of the view that his findings are contrary to the law
of appreciation of the evidence. The learned Additional Sessions
Judge did not follow the doctrine of appreciation of evidence
properly. Not applying a particular section on the charge creates
doubt is also erroneous and illegal.
30. The Court is aware that the revisional Court cannot re-
appreciate the evidence. But, it does not prohibit the Court as a rule.
If any glaring feature is brought to the notice of the High Court which
would otherwise is testamount to miscarriage of justice, the High
Court may re-appreciate the evidence. However, in this case, the
reasoning recorded by the two Courts has been examined, which
speaks about the role attributed to each of the witnesses. As
mentioned above, the Court is not satisfied with the reasoning of the
learned Additional Sessions Judge. Therefore, this Court is of the view
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that the revision application deserves to be allowed and case is to be
remitted to the Additional Sessions Judge, Udgir to rewriting the
judgment by giving an opportunity to both the sides. Hence, the
following order :
ORDER
(i) Criminal Revision Application is allowed.
(ii) The impugned judgment and order of the learned Additional
Sessions Judge, Udgir passed in Criminal Appeal No.1 of 2003 dated
30.08.2005 is quashed and set aside.
(iii) The case is remitted to the Additional Sessions Judge, Udgir, for
rewriting the judgment after giving an opportunity to the petitioner
as well as to the respondents.
(iv) Since the matter is pretty old, the Court expects the Additional
Sessions Judge, Udgir, to prioritise this case and endeavour to dispose
of the case within two months from the receipt of this order.
(v) The record and proceeding be returned to the learned
Additional Sessions Judge, Udgir.
(vi) Rule is made absolute in the above terms.
(vii) After disposal of the matter, learned counsel Mr. Bondar for the
petitioner appeared and requested to call back the order dated
02.09.2024. Learned counsel for the petitioner requests that cost may
not be imposed. In fact, it was a condition precedent to argue the
matter. The Court was to literally force his junior to argue the matter.
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Thereafter, he argued the petition. However, to avoid the blame on
the lawyer, this Court asked Mr. Bondar how he would like to pay the
cost. He said that he would donate it to an institution for orphans.
Therefore, the order imposing the cost of Rs. 5,000/- is modified as
follows:-
A) Instead of the word 'cost', it be read as a donation of
Rs. 5,000/- to be paid to the orphanage institution of the
choice of learned counsel Mr. Bondar.
(S.G. MEHARE, J.)
Mujaheed//
