[Cites 17, Cited by 0]
Bombay High Court
State Of Maharashtra Thr. Pso Ps ... vs Ravindra S/O Budhajinatke And Anor. on 8 December, 2025
2025:BHC-NAG:13911-DB
J-cri.apeal429.06 final.odt 1/26
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.429 OF 2006
State of Maharashtra,
through Police Station Officer,
Kurkheda, Distt. Gadchiroli. : APPELLANT
...VERSUS...
1. Ravindra s/o. Budhaji Netke,
Aged about 26 years,
Occu. Agriculturist,
R/o. Charbhatti, Tq. Kurkheda,
Distt. Gadchiroli.
2. Baliram s/o. Manguram Usendi,
Aged about 25 years,
Occu. Agriculturist,
R/o. Wagdhara, Tah. Kurkheda,
Distt. Gadchiroli. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mr. Nikhil Joshi, Additional Public Prosecutor for Appellant.
Mr. Anil Mardikar, Senior Advocate for Respondent No.2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 26th NOVEMBER, 2025.
PRONOUNCED ON : 08th DECEMBER , 2025.
JUDGMENT :
(Per : Nandesh S. Deshpande, J.)
1. The present appeal takes exception to the judgment
dated 3rd May, 2006, passed by the Sessions Judge, Gadchiroli in
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Sessions Case No.93/2002. The accused Nos.1 to 5 i.e. respondent
Nos.1 to 5 herein were prosecuted for the offences punishable
under Section 302 read with Section 34 of the Indian Penal Code as
also under Sections 3 and 25 of the Indian Arms Act.
2. The case of the prosecution in short is as under :
The complainant-Shital is the daughter of one Dasaru
Sukhaji Tulavi, resident of Salangtola belonging to Gond caste. The
deceased her husband, namely, Krushna Sakhare was belonging to
Mahar caste. Both of them were married in the year 2002. Prior to
their marriage deceased Krushna was residing as a tenant in the
house of one Prabhakar Tulavi at Salangtola, who is uncle of the
complainant Shital. During his stay as a tenant, the deceased
Krushna and the complainant Shital got acquainted with each other
and ultimately fell in love, resulting in their marriage in the year
2002. They got their marriage registered at Gadchiroli which was
without the consent of the father and other relatives of the
complainant Shital (PW 1). After their marriage both of them
started residing as a tenant at the house of one Hiraman Gawde at
village Khairi, wherein the deceased Krushna started a small
grocery shop in the front room of the premises. As the deceased
Krushna was an intelligent person, he progressed in the grocery
J-cri.apeal429.06 final.odt 3/26
business and subsequently shifted his residence to the house of one
Sonu Puram of Khaikri. Thereafter, also he continued his grocery
shop at the house of Hiraman Gawade, wherein it was originally
started. Thereafter, deceased Krushna also purchased a plot for
residential plot for his shop and made construction thereon.
3. It is further stated by the prosecution that accused No.3
Haridas Kolhe was then Sarpanch of Gram Panchayat Khairi and
was having good relations with deceased Krushna since beginning.
However, one year prior to the incident i.e. on 9.7.2002, the
deceased Krushna started purchasing paddy at his grocery shop.
The accused No.3 Haridas Kolhe offered him to join such business,
but deceased Krushna refused and told him that he may purchase
paddy separately. The accused No.3, therefore, was jealous of
deceased Krushna due to progress made by him and was having a
grudge against him. It is further alleged by the prosecution that
deceased Krushna refused to give powder for playing a game of
Carrom to a boy sent by accused No.1 Haridas and, therefore, they
both had quarreled over the said issue. There was also a quarrel
regarding work of repairs of lake of the village which was done
under the supervision of the accused No.3 as a Sarpanch of village
Gram Panchayat. Furthermore, the accused No.3 was also not
allowing the plot purchased by deceased Krushna to be mutated in
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his name and was pressurizing his landlord i.e. Hiraman Gawde not
to allow deceased Krushna to continue to run grocery shop at his
house. It is further alleged by the prosecution that the accused
No.4 Govinda and the accused No.5 Umaji are close friends of
accused No.3 Haridas. The accused No.1 Ravindra Natke, resident
of Charbhatti is nearest relative of accused No.5 Umaji, while
accused No.2 is the friend of accused No.1 Ravindra. It is,
therefore, alleged by the prosecution that the accused No.3 Haridas,
accused No.4 Govinda and accused No.5 Umaji conspired together
and eliminated deceased Krushna with the help of accused No.1
Ravindra and the accused No.2 Baliram Usendi.
4. It is further alleged by the prosecution that on 9.7.2002
the accused No.1 Ravidra and accused No.2 Baliram went to the
house of accused No.5 Umaji Pardhi at Khairi at about 10.00 p.m.
and called Vishwanath Meshram (PW 2) from the grocery shop of
one Gopal of village Khairi and asked about the present situation of
the grocery shop of deceased Krushna. He was further asked to
accompany them. Thus, Vishwanath (PW 2) took the accused No.1
Ravindra and accused No.2 Baliram in front of the house where
deceased Krushna with complainant Shital were residing and gave a
call to Sonu Puram(PW 3), the landlord of deceased Krushna and
asked him to awake deceased Krushna Sakhare. On that, the said
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landlord Sonu Puram (PW 3) gave a call to deceased Krushna and
told him that some persons have come to meet him. On receiving
the call, complainant Shital (PW1) followed by deceased Krushna
came to front door of their house wherein she saw one unknown
person with Vishwanath outside the house and one third unknown
person was standing at a far distance. The said unknown person
who came near the door of the house asked deceased Krushna to
come with them and also asked the complainant Shital to give rope
and an axe. However, PW 1 Shital showed her inability to do so.
Thereafter, the deceased accompanied by PW 2 Vishwanath and the
said two unknown persons i.e. accused No.1 Ravindra, accused
No.2 Baliram went away. Thereafter, those accused i.e. accused
Nos.1 and accused No.2 took rope and axe from the house of one
Someshwar Meshram (PW 4) and also asked him to accompany
them.
5. It is further stated by the prosecution that thereafter
the accused No.1 Ravindra and accused No.2 Baliram took
deceased Krushna, Vishwanath (PW 2) and Someshwar Meshram
(PW 4) outside the village with them on the pretext of working of
fixing of bamboos. The accused Nos.1 and 2 asked the two others
to wait when they reached at the field of Naktu Gaikwad. On
reaching said field, the accused Nos.1 and 2 told deceased Krushna
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that he has spoiled a girl of Gond community and, therefore, caught
both hands of deceased Krushna, tied a rope to his upper arms and
then tied him to a Sag (teak) tree. Deceased Krushna was pleading
with them that he has committed a mistake but he should not be
killed and should be excused. However, accused No.1 Ravindra
and accused No.2 Baliram tied the rope to the neck of deceased
Krushna and then tied the said rope to the Sag (teak) tree.
Thereafter one of the accused No.1 Ravindra and accused No.2
Baliram assaulted deceased Krushna with axe on his right eye and
due to such axe stroke, the said axe got stuck into the right eye of
deceased Krushna resulting in his death. Thereafter, one of the
accused i.e. accused No.1 Ravindra made a fire with gun and then
both of them ran away towards the tar road. On hearing the gun
fire, PW 2 Vishwanath and PW 4 Someshwar Meshram also ran to
their own houses in the village. The complainant Shital (PW 1) also
heard the sound of fire after the accused No.1 Ravindra and
accused No.2 Baliram took away the deceased with him. However,
due to fear, she could not go to the side from which she heard the
said sound to verify about the death of her husband.
6. It is further alleged by the prosecution that on the next
day morning, complainant Shital asked Vishwanath about her
husband. On that he told that her husband was taken away by her
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relatives. On search by Shital and others, the deceased was found
tied to a Sag (teak) tree in the field of Naktu Gaikwad with an axe
sticked into his eye and in a dead condition.
7. The complainant Shital, therefore, went to Police
Station Kurkheda and lodged report of the above incident and the
same was recorded as per Exh.-49 by Shri Bhale, Police Sub-
Inspector (PW 16) and Crime bearing No.16/2002 for the offence
punishable under Section 302, read with 34 of the Indian Penal
Code was registered against the accused. The offence punishable
under Section 302 of the Indian Penal Code being exclusively
triable by the Sessions Judge, the concerned Magistrate committed
the same to the Sessions Court for trial and it was registered as
Sessions Case No.93/2002. The 1st Ad-hoc Additional Sessions
Judge, Gadchiroli framed charge (Exh.-4) for the offence
punishable under Section 302 read with 34 of the Indian Penal
Code along with Sections 3 and 25 of the Indian Arms Act. Both
accused Nos.1 and 2 recorded their pleas and pleaded not guilty
and claimed to be tried. The prosecution examined as many as 17
witnesses to prove their case and the statements of the accused
persons were recorded as per Section 313 of the Criminal Procedure
Code.
8. The trial Court after scanning the evidence and the
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documents on record was pleased to acquit the accused for want of
clinching evidence vide judgment dated 3.5.2006. It is this
judgment which is impugned in the present appeal by the
prosecution and the various grounds as stated in the appeal.
9. We have heard Mr. Nikhil Joshi, learned Additional
Public Prosecutor for the appellant/State and Mr. Anil Mardikar
learned Senior Advocate for the respondents.
10. Learned Additional Public Prosecutor for the appellant/
State submits that the judgment of the trial Court is perverse
inasmuch as there was enough material on record to show the
involvement of the accused persons in the crime. He further
submits that the prosecution was successful in establishing the case
beyond reasonable doubt so as to warrant conviction of the accused
persons. He further submits that the trial Court has gravely erred
in appreciating the evidence on record and, therefore, the judgment
of the trial Court is liable to be interfered with by this Court.
11. Mr. Anil Mardikar, learned Senior Advocate appearing
for the respondents by submitting that the scope of appeal against
acquittal is very narrow states that even if second view is possible,
the appellate Court should not interfere in the appeal against
acquittal. To buttress his submission, the learned Senior Counsel
places reliance on the judgment of the Hon'ble Apex court in the
J-cri.apeal429.06 final.odt 9/26
Criminal Appeal No.985/2010, Babu Sahebagouda Rudragoudar
and others Vs. State of Karnataka, dated 19th April, 2024 and more
particularly para 36 onwards thereof. He submits that now it is
settled principle of law that the Appellate Court while adjudicating
an appeal against acquittal has powers to re-appreciate the
evidence but even if second view is possible, the Appellate Court
would not interfere in the findings of the acquittal.
12. Before appreciating the controversy involved in the
present appeal, it would be apropos to refer to the scope of
interference by the High Court in an appeal filed by the State for
challenging acquittal. As relied by the learned Senior Advocate for
the respondents in Criminal Appeal No.985/2010, we are
reproducing para Nos.37,38,39 and 40 as under :
37. This Court in the case of Rajesh Prasad
v. State of Bihar and Another1 encapsulated the
legal position covering the field after considering
various earlier judgments and held as below: -
"29. After referring to a catena of
judgments, this Court culled out the following
general principles regarding the powers of the
appellate court while dealing with an appeal
against an order of acquittal in the following
words: (Chandrappa case [Chandrappa v. State
of Karnataka, (2007) 4 SCC 415]
"42. From the above decisions, in our
considered view, the following general principles
regarding powers of the appellate court while
dealing with an appeal against an order of
acquittal emerge:
J-cri.apeal429.06 final.odt 10/26
(1) An appellate court has full power to
review, reappreciate and reconsider the evidence
upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate court on
the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as,
"substantial and compelling reasons", "good and
sufficient grounds", "very strong circumstances",
"distorted conclusions", "glaring mistakes", etc.
are not intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
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 his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate court should not disturb the finding
of acquittal recorded by the trial court."
38. Further, in the case of H.D. Sundara &
Ors. v. State of Karnataka2 this Court
summarized the principles governing the exercise
of appellate jurisdiction while dealing with an
appeal against acquittal under Section 378 of
CrPC as follows: -
J-cri.apeal429.06 final.odt 11/26
"8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing
an appeal against acquittal, is entitled to
reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding
an appeal against acquittal, after reappreciating
the evidence, is required to consider whether the
view taken by the trial court is a possible view
which could have been taken on the basis of the
evidence on record;
8.4. If the view taken is a possible view,
the appellate court cannot overturn the order of
acquittal on the ground that another view was
also possible; and
8.5. The appellate court can interfere
with the order of acquittal only if it comes to a
finding that the only conclusion which can be
recorded on the basis of the evidence on record
was that the guilt of the accused was proved
beyond a reasonable doubt and no other
conclusion was possible."
39. Thus, it is beyond the pale of doubt that
the scope of interference by an appellate Court
for reversing the judgment of acquittal recorded
by the trial Court in favour of the accused has to
be exercised within the four corners of the
following principles:-
(a) That the judgment of acquittal
suffers from patent perversity;
(b) That the same is based on a
misreading/omission to consider material
evidence on record;
(c) That no two reasonable views are possible
and only the view consistent with the guilt of the
accused is possible from the evidence available on
record.
40. The appellate Court, in order to interfere
with the judgment of acquittal would have to
record pertinent findings on the above factors if it
is inclined to reverse the judgment of acquittal
rendered by the trial Court."
J-cri.apeal429.06 final.odt 12/26
13. In the conspectus of the settled principle of law as
enunciated by the Hon'ble Supreme Court stated supra the
controversy in the present matter has to be decided.
14. To prove its case, the prosecution has examined as
many as 17 witnesses. As far as death of deceased Krushna being a
homicidal one, it has come on record through the evidence of Shri
Bhale (PW 16) at Exh.-95 and Medical Officer Ramteke (PW 9) at
Exh.-66 read with post mortem report at Exh.-68, that autopsy was
done by the said doctor on the dead body of the deceased Krushna
on 11.7.2002 in between 12.30 to 2.00 p.m. and at that time some
external and internal injuries were found on the said body. As far
as external injuries are concerned there was nylon rope marks
around the neck and there was iron axe with wooden rod
penetrated in the right eye. The axe was removed and penetrated
injury measuring about three inches in length, one inch in breadth
and about 4.5 inches deep/direction resulting in fracture of frontal
bone of right side was found. As far as internal injury is concerned,
the skull was fractured and injury to frontal lobe of the brain was
present. The evidence of Doctor Ramteke further shows that the
said injuries were anti mortem in nature and were sufficient to
cause death in ordinary course of nature and the cause of death was
J-cri.apeal429.06 final.odt 13/26
due to hemorrhagic shock and injury to brain. Thus, it is clear that
the death of the deceased Krushna was a homicidal one.
15. The evidence led by the prosecution can be broadly
divided in four parts;
(a) the evidence of Antakala Bansod (PW 6) which is
to the effect that she saw the accused No.1 Ravindra and accused
No.2 Baliram coming towards to village Khairi and then going to
the house of accused No.5 Umaji on 9.7.2002 during day time and
thereafter going away from the village Khairi on the next day
morning i.e. on 10.7.2002.
(b) The evidence of complainant Shital (PW 1) and the
alleged eye witnesses, namely, Vishwanath Meshram (PW 2) and
Someshwar Meshram (PW 4) and the evidence of Sonu Puram
(PW 3);
(c) The evidence of complainant Shital (PW 1)
accompanied with Dattatraya (PW 5), Ramkrushna Pada (PW 7)
and Yadav Raut (PW 8) regarding the relations between deceased
Krushna Sakhare, accused No.3 Haridas, accused No.4 Govinda and
accused No.5 Umaj and;
(d) Identification parade held on 27.9.2002.
16. Antakala Bansod, resident of Khairi, states that she saw
the deceased, accused No.1 Ravindra and accused No.2 Baliram
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coming towards village Khairi and then going towards the house of
accused No.5 Umaji on 9.7.2002 and thereafter seeing them leaving
the village on the next day morning i.e. 10.7.2002 Her evidence is
not challenged by the defence. Furthermore, the accused No.1,
accused No.2 and accused No.5 in their statements have admitted
the said fact. Therefore, it can safely be said and as has been done
by the trial Court that it is established that the accused No.1
Ravindra and accused No.2 Baliram had come to the house of
accused No.5 Umaji on 9.7.2002 during day time and then on the
next day i.e. on 10.7.2002 they left the village Khairi.
17. The complainant Shital (PW 1) has deposed that
Exh.-48 that during the night of 9.7.2002 at about 10.30 p.m. while
she herself and her husband were sleeping at their house,
Vishwanath Meshram (PW 2), Someshwar Meshram (PW 4),
accused No.1 Ravindra and accused No.2 Baliram took away her
husband. She has further deposed that when the above referred
persons came to call her husband, they first awoke the landlord,
who in turn gave a call to the deceased husband and said some
persons have come to meet him. She has further deposed that said
persons who took away her husband were wearing normal dresses
and she has seen said persons while they took away her husband.
She further states in her evidence that after some time she heard
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sound of firing from the side of Paroli road. However, since their
was dark and she was frightened, she did not go to the said side to
verify it. On the next day morning she went to house of Vishwanath
and inquired about her husband, who told her that her relatives had
taken away her husband but said Vishwanath told her that he is not
aware about who those relatives were. She further deposed that
she took search of her husband in the village but he was not found.
The search was continued in area outside the village wherein
deceased Krushna was found tied to a teak tree in the field of Naktu
Gaikwad. She, therefore, lodged a report resulting in the
investigation. She also identified the accused No.1 Ravindra and
accused No.2 Baliram before the Court as the same persons, who
took away her husband at the time of said incident.
18. In the cross-examination of PW 1 she maintained the
fact that Someshwar Meshram, accused No.1 Ravindra and accused
No.2 Baliram were amongst the persons who called and took her
husband and said fact was stated by her while lodging the report at
Exh.-49 and in the supplementary statement recorded on
11.7.2002. However, when she was asked about the omissions of
the said facts in her report and the supplementary statement she
has stated that she has not stated the names of the said persons at
that time due to fear. In our view, the omission is material and it is
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difficult to accept the explanation tendered by the witness during
her cross examination. It is noteworthy to mention that said
witness i.e. PW 1 has admitted about she knowing the accused No.1
Ravindra prior to the incident and, therefore, what was normally
expected that she should have at least named said accused No.1 in
her report at Exh.-49 and also in further statement recorded by the
Police. Thus, it is clear that PW 1 has given much improved version
before the Court naming accused No.1 Ravindra and accused No.2
Baliram in place of two unknown persons as stated by her while
lodging report at Exh.-49 immediately after the incident and also in
her supplementary statement recorded on the next day of incident
i.e. 11.7.2002. Her version that PW 4 Someshwar was with others
when the said persons took away her husband is not even
supported by all other relevant witnesses i.e. PW 2 Vishwanath,
PW 3 Sonu and PW 4 Someshwar.
19. PW 2 Vishwanath Meshram has stated in his deposition
that the accused No.1 Ravindra, accused No.2 Baliram called him
from the concerned shop at about 9.15 p.m and deposed that said
accused subsequently asked him to show the shop of deceased
Krushna and took Krushna with them. He also stated in his
examination-in-chief about the further story of the accused No.2
taking deceased Krushna and himself along with PW 4 Someshwar
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to the field of Naktu Gaikwad wherein the accused Nos.1 and 2 tied
the deceased Krushna to a teak tree with a nylon rope and then
assaulted deceased Krushna with an axe and accused No.2 Baliram
holding gun and firing in air after deceased Krushna assaulted. In
his cross-examination the said witness has stated that the sister of
father of accused No.1 Ravindra has married with accused No.5
Umaji and their marriage took place about 8 to 10 years back. It is,
however, noteworthy to mention that in his statement before the
Police this witness did not name accused No.1 Ravindra and
accused No.2 Baliram specifically as the persons, who took away
deceased Krushna and ultimately assaulted with an axe after tying
him to a teak tree with a nylon rope. He only states that both said
persons who assaulted deceased Krushna were having black
complexion but he denied the portion marked 'A' in his statement
before the Police to that effect. The said portion marked 'A' is
proved at Exh.-117. His version in the statement before the Police
goes against the description of accused No.1 Ravindra as he is tall
and having fair complexion. He also admits in his
cross-examination that the concerned persons were wearing khaki
dress of greenish color which fact is specifically denied by PW 1. In
his cross-examination it is also noteworthy to mention that this
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witness PW 2 Vishwanath admits that the Police have beaten him
during the investigation. Further suggestion regarding the
depositions being made under pressure of the Police is however,
denied. However, this is a relevant fact which needs to be taken
into consideration.
20. PW 3 Sonu in his deposition has supported the
prosecution about PW 4 awakening him and asking him in turn to
away Krishna Sakhare. However, he further states in his
examination-in-chief itself that he has not seen the said persons
who were with PW 2 Vishwanath Meshram at that time. Therefore,
the evidence is not trustworthy.
21. PW 4 Someshwar Meshram, who has deposed at
Exh.-57 stated that during the concerned night at about 10.00 p.m.
his mother told him that somebody was unwinding the rope of their
bullock-cart. Thereafter, he came out of the house and the said
persons were Krushna accompanied by two unknown persons, one
of whom was of small height and he was having a gun with him
and the said other unknown persons were having axe and rope with
him. The said two unknown persons asking the witness to
accompany them. All of them went upto the field of Naktu
Gaikwad and thereafter the said two unknown persons asked them
to stop there and warned them not to run away. Thereafter, one
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unknown person having good height caught hold of Krushna and
tied him to a teak tree with rope. The said Krushna was pleading
with them to excuse him, however, one of the said unknown
persons, who was having gun stated that since he has cheated the
girl of Gond, therefore, they will not excuse him. It is further stated
by the witness that the said unknown person who was having good
height and was having axe with him gave stroke of axe on chest of
Krushna and on his head and the same persons gave one blow with
blade portion on the right eye of Krushna. Thereafter, said
unknown persons having good height ran away. He has identified
the said unknown person accused No.2 before the Court as the said
unknown person with short height who was having a gun and the
accused No.1 Ravindra before the Court as the same unknown
person with good height who was holding the axe.
22. This witness in his cross-examination admitted that the
sister of father of the accused No.1 Ravindra is the wife of accused
No.5 Umaji, resident of Khairi. It is thus clear that accused No.1
Ravindra prior to the incident was known to the witness and,
therefore, it was expected of him to name the said accused at least
in his Police statement recorded by the Police on 11.7.2002.
However in his statement he has not done so and stated that two
unknown persons took away Krushna Sakhare and then one of
J-cri.apeal429.06 final.odt 20/26
them has assaulted him with an axe. This fact creats doubt as to
veracity of the statement of this witness and his alleged presence at
the time of the said incident. It is further admitted in his cross-
examination that after the said incident Police have interrogated
him, PW 2 Vishwanath, PW 1 Shital and the accused persons at the
Police Station by calling them at about 9-10 times upto 25.7.2002.
If it was so, he must have seen the accused No.1 Ravindra and
accused No.2 Baliram while Police interrogated them in the Police
Station and, therefore, identification of the said accused persons by
this witness in the identification parade held on 27.9.2002 i.e.
about two and half months after the incident is of no use. The
samething can be said in respect of alleged identification of accused
No.1 Ravindra and accused No.2 Baliram by complainant Shital and
Vishwanath (PW2) in the said identification parade held on
27.9.2002. It is also pertinent to mention that both the accused
Vishwanath Meshram (PW 2) and Someshwar Meshram (PW 4) has
admitted in the cross-examination that they were beaten by the
Police while they were being called to the Police Station for
interrogation. This fact also creates a doubt about the veracity
regarding the truthfulness of the statements made by these
witnesses.
23. As far as role of the other accused is concerned, the
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complainant Shital (PW 1), who deposed at Exh.-48 in respect of
accused No.3 Haridas stated that he was not paying wages of one
day to the deceased Krishna for the work of digging clay of tank.
He was asking proprietor of the shop not to sell kerosene to
deceased Krushna; quarreling with and stating him that he should
not reside in the said village after her husband did not give powder
to a person sent by him for playing carrom. However, all these
facts are omissions in her report at Exh.-49 and statement recorded
on 11.7.2002. The other witnesses i.e. PW 5, PW 7 and PW 8, who
are the witnesses in respect of alleged enmity between accused
No.3 Haridas and deceased Krushna have not fully supported the
prosecution and, therefore, were declared hostile. In their cross-
examination even though these witnesses have admitted about the
enmity, such dispute was not of such volume as to encourage a
person to conspire and execute a plan to murder a person.
24. PW 1 Shital admitted that her relatives were opposed
to the marriage with deceased Krushna, he being of other caste.
She has, however, denied the suggestion to the effect that she was
suspecting that her relatives took revenge of her marriage by
committing murder of her husband. It is also pertinent to note that
as per the version of PW 1 Shital on the next day when she went to
Vishwanath (PW 2) to inquire about her husband, the said
J-cri.apeal429.06 final.odt 22/26
Vishwanath (PW 2) told her that her relatives have taken away her
husband. However, curiously no explanation has come on record
from Vishwanath (PW 2) as to why he has stated so to complainant
at that time. If such evidence, read with various suggestions is
considered together it creates a doubt regarding the evidence of
complainant (PW 1), Vishwanath (PW 2), Someshwar Meshram
(PW 4) about the identity of the accused No.1 Ravindra and
accused No.2 Baliram at the time of said incident. The appearances
as stated by these witnesses the clothes/dresses which they were
wearing at the time of the alleged incident are contradictory in
nature and are not corroborative. Therefore, in our view
reasonable doubt arises showing possibility of the concerned
persons being the relatives of complainant Shital and as also the
identity of the accused Nos.1 and 2. In that view the accused
persons are entitled for benefit of doubt. It has come in the
evidence of PW 1 Shital in her cross-examination at Exh.-48 that
the Police persons were present in the said place when the accused
were made to stand in line. Thus, apart from the delay, the test
identification parade lacks in reliability.
25. In that view of the matter the alleged identification of
the accused No.1 Ravindra and accused No.2 Baliram by the
complainant Shital, Vishwanath and Someshwar Meshram is of no
J-cri.apeal429.06 final.odt 23/26
use to the prosecution. The law regarding test identification parade
is explained in detail by the Hon'ble Apex Court in Criminal Appeal
No.1864-1865 of 2010, Gireesan Nair and others etc. Vs. State of
Kerala. Taking review of the entire case law in the subject, the
Hon'ble Apex Court in para 46 and 47 observed as under :
46. Re: Delay in conducting the TIP: Undue delay in
conducting a TIP has a serious bearing on the credibility
of the identification process. Though there is no fixed
timeline within which the TIP must be conducted and the
consequence of the delay would depend upon the facts
and circumstances of the case, it is imperative to hold the
TIP at the earliest. The possibility of the TIP witnesses
seeing the accused is sufficient to cast doubt about their
credibility. The following decisions of this Court on the
consequence of delay in conducting TIP have emphasised
that the possibility of witnesses seeing the accused by
itself can be a decisive factor for rejecting the TIP. In
Suresh Chandra Bahri Vs. State of Bihar, it was held that:
"It is a matter of great importance both for
the investigating agency and for the accused
and a fortiori for the proper administration of
justice that such identification is held without
avoidable and unreasonable delay after the
arrest of the accused and that all the necessary
precautions and safeguards were effectively
taken so that the investigation proceeds on
correct lines for punishing the real culprit. It is
in adopting this course alone that justice and
fair play can be assured both to the accused as
well as to the prosecution. But the position
may be different when the accused or a culprit
who stands trial had been seen not once but
for quite a number of times at different point
of time and places which fact may do away
with the necessity of a TIP."
47. In Budhsen & Anr. Vs. State of UP, this Court set
aside the conviction imposed on the appellant therein,
J-cri.apeal429.06 final.odt 24/26
on the ground that no conviction can be based by solely
relying on the identification made in a TIP. While
holding that a 14-day delay by itself in conducting the
TIP may not cause prejudice to the accused, it observed
that there is a high chance of accused being seen by the
identifying witnesses outside the jail premises. In Subash
and Shiv Shankar v. State of U.P., this Court acquitted
an accused on the ground that the TIP was held three
weeks after the arrest was made. This Court suspected
that the delay in holding the TIP could have enabled the
identifying witnesses to see the accused therein in the
police lockup or in the jail premises. In State of A.P. v.
Dr M.V. Ramana Reddy and Ors., this Court acquitted
respondent nos. 2 and 3 therein on the ground that
there was a delay of 10 days in conducting the TIP, and
in those 10 days, there was a high likelihood of their
photographs being shown to the witnesses. In Rajesh
Govind Jagesha v. State of Maharashtra, a delay of
about one month was viewed seriously by this Court
since there was a possibility of the accused being shown
to the witnesses."
26. Furthermore, as far as identification parade is
concerned, admittedly it was held after about two and half months
after the incident. During such period the accused No.1 Ravindra
and and accused No.2 Baliram were being interrogated by the
Police along with other witnesses who identified the said accused in
the identification period after about 8 to 10 days after the incident.
Moreover, it can be seen that though the accused No.1 Ravindra is a
person having good height and fair complexion and accused No.2
Baliram is a short person with a black complexion, both of them
were made to stand in one identification parade and this fact also
J-cri.apeal429.06 final.odt 25/26
vitiates the said parade.
27. Furthermore, as regards recording of statement of
material witnesses by the Magistrate under Section 164 is
concerned, the prosecution has not examined concerned Magistrate
and PW 2 and PW 4 have admitted in their cross-examination that
it was the clerk who recorded such statements. Thus, the evidence
led by the prosecution in our view was not reliable and trustworthy
so as to point to the guilt of the accused.
28. As stated supra, the scope of interference in appeal
against acquittal is very narrow and the acquittal of the accused by
the trial Court strengthens the presumption of innocence which is in
their favour. Even though the Appellate Court is entitled to
re-appreciate the oral and documentary evidence, the said Court
can interfere only when the findings reached by the trial Court are
not possible to be reached by a prudent person on the basis of the
evidence taken on record. It is only in such situation the Appellate
Court can interfere in the appellate jurisdiction. Even if as per the
Appellate Court another view is possible that can not be an aspect
for the Appellate Court to overturn the order of acquittal. It is only
when the Appellate Court reaches to a finding that the sole
conclusion which can be recorded on the basis of the evidence on
record was that the guilt of the accused was proved beyond
J-cri.apeal429.06 final.odt 26/26
reasonable doubt and no other conclusions possible, then only
interference can be done by the Appellate Court.
29. As stated supra, the view taken by the Appellate court
is a plausible and possible view and it is the only view which could
have been taken by the Court on the basis of evidence material on
record. Even, in our opinion as discussed above, the evidence led in
support of the case of the prosecution is not sufficient to point to
the guilt of the accused.
30. In that view of the matter, we pass the following order.
ORDER
The appeal is dismissed.
(Nandesh S. Deshpande, J.) (Urmila Joshi-Phalke, J.)
wadode
Signed by: Mr. Devendra Wadode
Designation: PS To Honourable Judge
Date: 10/12/2025 10:40:13
