Bombay High Court
State Of Mah. Thr. P.S.O., P.S. Wani vs Raju Wamanrao Duf And 2 Oths on 25 September, 2025
2025:BHC-NAG:9760-DB
1 CRI.APPEAL.51-2020.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 51 OF 2010
State of Maharashtra,
Thr. Police Station Officer, Police
Station Wani, District Yavatmal. APPELLANT
Versus
1. Raju Wamanrao Duf,
Aged about 30 years,
2. Manish Wamanrao Duf,
Aged about 24 years,
3. Amol Wamanrao Duf,
Aged about 21 years,
All R/o. Wani, District Yavatmal. RESPONDENTS
-----------------------------------------------
Mrs. H.N. Prabhu, APP for the Appellant/State.
Mr. M.I. Dhatrak, Advocate for the Respondents.
-----------------------------------------------
CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 09th SEPTEMBER, 2025.
PRONOUNCED ON : 25th SEPTEMBER, 2025.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
2 CRI.APPEAL.51-2020.JUDGMENT.odt
1. The present Appeal is preferred by the State
challenging the judgment and order of acquittal passed by the
Additional Sessions Judge, Pandharkawada (Kelapur), District
Yavatmal in Sessions Trial No. 407/2002 dated 15.05.2009.
2. Brief facts of the prosecution case are as under:
2(i). On 13.01.2002, the assistant of the deceased who
was working on his vehicle Traks No. MH-29/C-514 parked his
vehicle in front of the vehicle of accused No.2/Manish. On
account of the said parking accused No. 2/Manish slapped him
and there was exchange of words between deceased and Manish
as to why he beat his assistant and deceased beat the accused
Manish. Thereafter, the deceased and his assistant namely
Ganpant Dethe went to Warora with the passengers and at
about 09.00 p.m. they have parked their vehicle at Tilak Chowk,
Wani. There was quarrel between deceased Mohammad Tayyab
and accused Raju, Manish and their brother Amol. Accused Raju
brought sword and gave a blow of said sword to the deceased.
Accused Manish beat the deceased by iron pipe and caused the
death of the deceased. On the basis of the said report Police
have registered the crime against the Respondents/accused.
3 CRI.APPEAL.51-2020.JUDGMENT.odt
2(ii). After registration of the crime, the Investigating
Officer has recorded the relevant statements of witnesses and
drawn the spot panchnama. The weapons were seized at the
instance of the accused as per their statements. The
incriminating articles were forwarded to CA. Post Mortem and
CA reports were collected and after completion of the
investigation, the charge-sheet was submitted. Being the offence
punishable under Section 320 of Indian Penal Code, which is
exclusively triable by the Court of Sessions and the case was
committed to the Sessions Judge.
2(iii). The learned Sessions Judge framed the charge vide
Exh. 41. The accused pleaded not guilty and claimed to be tried.
In support of the prosecution case, the prosecution has
examined in all 12 witnesses as follows.
(i) PW-1 Ganpat Udaram Exh.58 Informant and the
Dethe eyewitness.
(ii) PW-2 Sudhakar Krishnaji Exh.59 .....
Pachare
(iii) PW-3 Dilip Vithal Jivne Exh.60 .....
(iv) PW-4 Manoj Devidas Exh.61 Panch on memorandum
Shende statement and discovery
panchnama.
4 CRI.APPEAL.51-2020.JUDGMENT.odt
(v) PW-5 Abdul Shafat Abdul Exh.62 Panch on spot.
Sheikh
(vi) PW-6 Sayeed Moinuddin Exh.63 Panch on inquest
Sheikh panchanama.
(vii) PW-7 Mohd. Irfan Exh.69 Panch on seizure memos.
Riyazuddin,
(viii) PW-8 Shahid Khan Exh.72 .....
Shamsher Khan,
(ix) PW-9 Mohammad Sayyed Exh.73 .....
Abdul Hai
(x) PW-10 Vishwanath Bhikaji Exh.74 .....
Chavan
(xi) PW-11 Abdul Hai Abdul Exh.89 Father of the deceased
Mannan
(xii) PW-12 Dr. Nandkishor Exh.91 Medical Officer
Mulchandji Tugnayat
2(iv). Besides oral evidence prosecution placed reliance on
Requisitions to Medical Officer at Exhs. 46 and 48, Medical
Certificate of Md. Tayyab at Exh. 92, Inquest panchnama at
Exh. 64, Seizure memos at Exhs. 70 and 71, Oral report at
Exh.75, FIR at Exh.76, Spot panchnama at Exh.77, Recovery
panchnama at Exh. 78, Seizure memos at Exhs. 79 to 81,
Requisition to CA at Exh. 82, Requisition to Magistrate at
Exh. 83, Dying declaration at Exh.84, CA reports Exhs. 53 to 55
and 57.
5 CRI.APPEAL.51-2020.JUDGMENT.odt
2(v). On the basis of the said oral as well as documentary
evidence prosecution has proved its case beyond reasonable
doubt. All the incriminating evidence is put to the accused in
order to obtain their explanation regarding the evidence
appearing against them.
2(vi). On appreciating the evidence, the learned Trial
Court come to the conclusion that the prosecution fails to prove
the charges and acquitted the accused. Being aggrieved and
dissatisfied with the same, the present Appeal is preferred by
the State on the ground that, the learned Trial Court failed to
appreciate that, besides the evidence of eyewitness the material
evidence on which prosecution relied upon is the dying
declaration, which is not shattered during the cross-examination
and corroborated by the CA reports, which shows that the blood
stains of blood Group "A" which is of the deceased are on the
clothes of accused Manish. Thus, there is sufficient material to
connect the accused with the alleged offence.
3. Heard learned APP for the Appellant/State, who
submitted that though the material eyewitnesses turned hostile
and not supported the prosecution case but the circumstantial
6 CRI.APPEAL.51-2020.JUDGMENT.odt
evidence i.e the dying declaration which is recorded by the
Police and the another circumstance i.e. the blood stained
clothes of accused Manish on which Blood Group "A" ascertained
is established by the prosecution and no explanation is put forth
by the accused regarding the said circumstances.
4. She submitted that, the Police Officer has recorded
the dying declaration after satisfying himself that the deceased
was in a fit condition to give statement. In support of her
contention, she placed reliance on Laxman Vs. State of
Maharashtra, reported in (2002) 6 SCC 710.
5. Per contra, learned Counsel for the
Respondents/accused submitted that PW-1/Ganpat Dethe who
is the eyewitness of the said incident as well as PW-2/Sudhakar
and PW-3/Dilip have not supported the prosecution case. The
Panch witnesses in presence of whom the accused made a
memorandum statement and discovery of weapons was at the
instance of the accused, have also not supported the prosecution
case. In absence of the direct evidence, prosecution placed
reliance on the evidence of dying declaration. Though
PW-10/Vishwanath Chavan who recorded the dying declaration
7 CRI.APPEAL.51-2020.JUDGMENT.odt
deposed before the Court that, he made the Medical Officer to
ascertain that the deceased (at the relevant time injured) was in
a fit condition to give a statement but there is neither
endorsement of the Medical Officer on report nor his evidence
shows that the statement was recorded in his presence. Thus,
neither the eyewitnesses have supported the prosecution case
nor PW-10/Vishwanath Chavan has recorded the dying
declaration as per the law. In view of that, the judgment of the
Trial Court acquitting the accused sustains and no interference
is called for.
6. After hearing both the sides and on perusal of the
evidence questions before this Court is whether in absence of
the evidence of eyewitness who has not supported the
prosecution case, the evidence of PW-10/Vishwanath Chavan
would be sufficient to prove the guilt of the accused.
7. As per the prosecution case, death of the deceased is
homicidal one. To prove the homicidal death prosecution placed
reliance on PW-12/Dr. Nandkishor Tugnayat examined vide
Exh. 91, who testified that, on 13.01.2002 when he was on
duty, the injured Mohammad Tayyab Abdul Hair was brought to
8 CRI.APPEAL.51-2020.JUDGMENT.odt
the Hospital for medical examination by Police Constable of
Wani Police Station. On examination he found following injuries
on his person, which are as under:
i) Incised wound posterior survical region, oblique,
size 10 cm. x 2 cm. by muscle deep.
ii) Incised wound central prital region 20 cm. x 2 cm.
by bonny deep.
iii) Incised wound left hand 16 cm. x 2 cm. by boony
deep.
iv) Incised wound left hand, posterior, 8 cm. x 2 cm.
by boony deep.
v) Incised wound left arm, laterally, 2 cm. x 1 cm.
vi) Incised wound right wrist, posterior, oblique, 10
cm. x 2 cm. by bonny deep.
vii) Incised wound left fore arm 4 cm. x 2 cm. by
muscle deep.
viii) Incised wound left elbow, posterior 1 cm. x 1½
cm. by muscle deep, active bleeding present.
ix) Incised wound right scapular region, 2 cm. x 1 cm.
x) Contusions left arm, 4 in numbers, lateral, parallel
to each other, horizontal, 6 cm. x 2 cm.
xi) Abrasions, 5 in numbers, oblique 10 cm. x ¼ cm. in
right scapular region.
xii) Abrasion right shoulder 4 cm. x ¼ cm.
8. As per his evidence all above injuries were fresh and
9 CRI.APPEAL.51-2020.JUDGMENT.odt
injuries Nos. 1 to 9 are caused by sharp object. Injury No. 10
caused by hard and blunt object and injury Nos.11 and 12 are
caused by friction with hard object. For further management
patient was referred to District Hospital, Yavatmal. The Medical
Certificate is at Exh. 92. His further evidence shows that he was
requested by Police to give opinion whether patient was fit to
give statement and he issued the Certificate that patient is
conscious and his statement can be recorded. The said
Certificate is at Exh. 93.
9. His cross-examination shows that, history was given
by the patient himself as to the assault by someone half an hour
before the examination. He admits that, he has not written that
injuries were before 6 hours from the time of examination.
Patient was critical and serious and immediately referred to
Government Hospital, Yavatmal for further treatment.
10. Admittedly, the Medical Officer who has conducted
the Post Mortem examination is not examined by the
prosecution. The Post Mortem report which is at Exh.94
admitted by the defence shows that, the death of the deceased
is due to the injury to the brain with aspiration pneumonia. The
10 CRI.APPEAL.51-2020.JUDGMENT.odt
inquest panchnama is at Exh.64 which also states about the
injuries on the person of the deceased. Thus, the evidence
sufficiently shows that, the death is due to the injuries to the
brain of the deceased. Hence, the death is caused due to the
assault and it is a homicidal death.
11. To prove the charge against the accused,
prosecution placed reliance on the direct evidence of the
witnesses of PW-1/Ganpat Dethe, PW-2/Sudhakar Pachare and
PW-3/Dilip Jivne who are the eyewitnesses of the incident.
During trial, they have not supported the prosecution case and
left loyalty towards the prosecution. Besides the oral evidence of
these witnesses, prosecution placed reliance on the evidence of
PW-10/Vishwanath Chavan who is the Investigating Officer as
well as the Officer who recorded the dying declaration of the
deceased when he was admitted in the Hospital.
12. Evidence of PW-10/Vishwanath Chavan shows that
on 13.01.2002 he was attached to Wani Police Station. At about
09.00 p.m. in the night Mohd. Tayyab was admitted in the
Hospital in injured condition. Immediately, he rushed to the
Hospital and requested the Medical Officer to certify whether
11 CRI.APPEAL.51-2020.JUDGMENT.odt
patient is in a fit condition to give statement. Medical Officer
informed that, the patient in a condition to give statement.
Thereafter he called two panchas and recorded statement.
Deceased narrated that there was a quarrel on account of
parking of the vehicle and Respondents assaulted him by sword
and iron rod and caused injuries to him. He recorded the said
statement. The cross-examination of this witness shows that,
after receiving the information he straightaway went to the
Rural Hospital Wani. He admitted Oral report/Exh.75 does not
show that he requested the Doctor and the Medical Officer
allowed to record statement of injured. There is no signature of
Medical Officer on Exh.75. He has not confirmed from the
Medical Officer as to whether patient can sign or give thumb
impression. He further states that, he do not remember whether
he has taken the entry to the station diary when he went to
Rural Hospital. Exh.93 is the requisition and on that requisition
the endorsement of the Medical Officer is there stating that
patient is conscious and the statement can be recorded.
13. Besides the evidence of dying declaration
prosecution further placed reliance on the other circumstance
i.e. the seizure of the weapons and various panchnamas. PW-4/
12 CRI.APPEAL.51-2020.JUDGMENT.odt
Manoj Shende who acted as a Panch on memorandum
statement of the accused Raju at whose instance the weapons of
the incident are seized has not supported the prosecution case.
14. PW-5/Abdul Shafat who acted as a Panch on spot
panchnama has also not supported the prosecution case.
PW-6/Sayeed Sheikh who acted as a Panch on inquest
panchnama and PW-7/Mohd. Irfan who acted as a Panch on
seizure memos have also not supported the prosecution case. As
far as the evidence of PW-7/Mohd. Irfan is concerned, he
admitted during cross-examination by APP that, he was called
by the Police on 14.01.2002. Accused Raju was in the custody of
the Police, who has confessed to show the sword and his
statement was recorded and thereafter went to the Government
godown and the accused Raju produced the sword. He
identified the sword. His cross-examination shows that, he was
well acquainted with deceased Mohd. Tayyab. He cannot read
and write Marathi.
15. The evidence of PW-8/Shahid Khan shows that, the
incident took place before 7 years. He came to know about the
incident. He immediately rushed to the spot and injured was
13 CRI.APPEAL.51-2020.JUDGMENT.odt
lying in the pool of blood. He gave statement before the Doctor
in his presence and disclosed that quarrel took place on account
of parking of the vehicle and he was assaulted by the
Respondents. His cross-examination shows that, he reached the
spot after the incident and took the injured to the Hospital.
16. PW-9/Mohammad Sayyed is the brother of the
deceased. His evidence is only to the extent that when he saw
the deceased, the deceased was in the Hospital. Thus, as to the
incident he has not narrated anything. PW-11/Abdul Hai is the
another witness who is the father of the deceased and who is
also not the eyewitness to the incident.
17. As the Panch witnesses who are examined by the
prosecution has not supported the prosecution case. Prosecution
examined PW-10/Investigating Officer to prove the recovery of
weapons, spot panchnama and seizure of blood stained clothes.
His evidence shows that, he arrested the accused Raju and
seized iron rod from the accused No.2 by drawing seizure
panchnama. He has also seized the sword from accused Raju
and drawn seizure panchnama vide Exh.71. He has also seized
the clothes of accused and deceased by drawing panchnama
14 CRI.APPEAL.51-2020.JUDGMENT.odt
vide Exhs. 79, 80 and 81. He forwarded articles to CA vide
Exh. 82.
18. On perusal of the evidence of PW-10/Investigating
Officer, he nowhere stated that the accused Raju gave a
voluntary statement and in perusal of the said statement he led
them to the spot of incident and shown the place where he
concealed the weapons of the offence. His evidence is only to
the extent that, the weapons and the clothes of the accused are
seized from the accused No.2.
19. Admittedly, one of the circumstance relied upon by
the prosecution is the dying declaration recorded by
PW-10/Investigating Officer. The evidence of PW-12/Medical
Officer shows that, PW-10/Investigating Officer approached to
him and enquired with him whether the patient is in a position
to give statement or not. The evidence of Medical Officer
nowhere states that, on enquiry by PW-10/Investigating Officer
he examined the patient and satisfied himself as to the physical
as well as mental condition of the injured and thereafter gave
an endorsement. The evidence of PW-10/Investigating Officer
also silent as to whether he satisfied himself as to the physical
15 CRI.APPEAL.51-2020.JUDGMENT.odt
and mental condition of the injured before recording the
statement of the injured which is to be treated as dying
declaration after his death.
20. The Hon'ble Apex Court in the case of Laxman Vs.
State of Maharashtra, 2002 ALL MR (Cri) 2259 SC , held that
normally, therefore, the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the eye
witnesses state that the deceased was in a fit and conscious
state to make the declaration, the medical opinion will not
prevail, nor can it be said that since there is no certification of
the doctor as to the fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying declaration can be
oral or in writing and in any adequate method of
communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. It is
further held that, what evidential value or weight has to be
attached to such statement necessarily depends upon the facts
and circumstances of each particular case. What is essentially
required is that the person who records dying declaration must
16 CRI.APPEAL.51-2020.JUDGMENT.odt
be satisfied that the deceased was in a fit state of mind. Where
it is proved by the testimony of the Magistrate that the declarant
was fit to make the statement even without examination by the
doctor, the declaration can be acted upon provided the court
ultimately holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of caution
therefore the voluntary and truthful nature of the declaration
can be established otherwise.
21. In the case of Krishan and Ors. Vs. State of Haryana,
2013 ALL MR (Cri.) 727, the Hon'ble Apex Court has held that
where the dying declaration is true and correct, the attended
circumstances show it to be reliable and it has been recorded in
accordance with law, the deceased made the dying declaration
of her own accord and upon due certification by the doctor with
regard to the state of mind and body, then it may not be
necessary for the court to look for corroboration. In such cases,
the dying declaration alone can form the basis for the conviction
of the accused. But where the dying declaration itself is
attended by suspicious circumstances, has not been recorded in
accordance with law and settled procedures and practices, then
17 CRI.APPEAL.51-2020.JUDGMENT.odt
it may be necessary for the Court to look for corroboration of
the same.
22. In Uttam Vs. State of Maharashtra, (2022) 8 SCC
576, wherein the Hon'ble Apex Court laid down the principles
which needs to be kept in mind while considering the dying
declaration, which is reproduced as under;
"(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration.
(iii) The Supreme Court has to scrutinise the dying
declaration carefully and must ensure that the declaration
is not the result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it
is to be rejected.
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth.
(ix) Normally the court in order to satisfy whether
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eyewitness has said that the deceased was in a fit and
conscious state to make this dying declaration, the medical
18 CRI.APPEAL.51-2020.JUDGMENT.odt
opinion cannot prevail.
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said dying
declaration cannot be acted upon."
23. Thus, it is a settled law that the statement made by
the deceased by way of a declaration is admissible in evidence
under Section 32(1) of the Evidence Act. It is not in dispute
that, her statement relates to the cause of her death. In that
event, it qualifies the criteria mentioned in Section 32(1) of the
Evidence Act. There is no particular form or procedure
prescribed for recording a dying declaration nor it is required to
be recorded only by Magistrate. As a general rule, it is advisable
to get the evidence of the declarant certified from the Doctor. In
appropriate cases, the satisfaction of the person recording the
statement regarding the state of mind of the deceased would
also be sufficient to hold that the deceased was in a position to
make a statement. It is settled law that, if the prosecution solely
depends upon the dying declaration, the normal rule is that the
Court must exercise due care and caution to ensure genuineness
of the dying declaration, keeping in mind that the accused had
no opportunity to test the veracity of the statement of the
deceased by cross-examination.
19 CRI.APPEAL.51-2020.JUDGMENT.odt
24. The law does not insist upon the corroboration of
the dying declaration before it can be accepted. The insistence
of the corroboration to a dying declaration is only a rule of
prudence. When the Court is satisfied that the dying declaration
is voluntary not tainted by tutoring or animosity, and is not a
product of the imagination of the declarant, in that event, there
is no impediment in convicting the accused on the basis of such
dying declaration.
25. In the present case, the prosecution has laid the
evidence of PW-10/Vishwanath Chawhan who is the
Investigating Officer, who recorded the dying declaration and
whose evidence is to the extent that he enquired with the
Medical Officer and Medical Officer has given him the
endorsement that the injured was in a fit condition to give a
statement. Admittedly, the medical endorsement is not the
requirement but requirement is that the person who records the
dying declaration has to satisfy himself as to the physical as well
as mental condition. Admittedly, the evidence of PW-12/Medical
Officer nowhere shows that he has examined the patient and
thereafter gave endorsement. The evidence of
20 CRI.APPEAL.51-2020.JUDGMENT.odt
PW-10/Investigating Officer, also nowhere shows that he has
satisfied himself as to the physical and mental fitness of the
deceased to give a statement. The evidence as to the presence of
the Medical Officer throughout the statement, is absent.
26. The another circumstance on which the prosecution
has relied upon is the memorandum statement of the accused
Raju and recovery of the weapons at his instance. The evidence
of PW-7/Mohd. Irfan shows that, he was called by the Police to
act as a Panch and accused Raju confessed before him to show
the sword. The statement of the accused was recorded and
thereafter sword was produced by accused Raju from one
godown which was seized. The said discovery was in presence
of PW-10/Vishwantha Chawan Investigating Officer. The
evidence of PW-10/Investigating Officer nowhere shows that
accused shown is willingness to make a voluntary statement.
Thereafter, Panchas were called and in presence of the Panchas
accused made a statement.
27. The requirement under Section 27 of the Indian
Evidence Act is founded on the principle that if any fact is
discovered, after search is carried out, on the search of any
21 CRI.APPEAL.51-2020.JUDGMENT.odt
information obtained from the prisoner, such discovery is
guaranteed that the information supplied by the prisoner is true.
It goes without saying and, therefore, that recovery of articles at
the instance of the accused has to be proved by the independent
witness. Section 27 of the Indian Evidence Act is interpreted by
the Hon'ble Apex Court in the case of Subramanya Vs. State of
Karnataka, reported in 2022 LiveLaw (SC) 887 and held that
the conditions necessary for the applicability of Section 27 of
the Act are broadly discussed as under:
"(1) Discovery of facts in consequence of an information
received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctively to
the fact thereby discovered is admissible."
28. Thus, what is admissible is the information, the
same has to be proved and not the opinion formed on it by the
Police Officer. In other words, the information given by the
accused while in custody which led to recovery of articles has to
be proved. It is, therefore, necessary that benefit of both the
accused and the prosecution that the information given should
be recorded and proved and if not so recorded, the exact
22 CRI.APPEAL.51-2020.JUDGMENT.odt
information must be adduced through the evidence. The basic
idea behind Section 27 of the Indian Evidence Act is that, the
doctrine of confirmation by subsequent events. The doctrine is
founded on the principle that if any fact is discovered as a
search made on the strength of any information obtained from
prisoner such a discovery is made on the strength of any
information obtained from a prisoner, such discovery is
guaranteed that the information supplied by the prisoner is true.
29. In the light of the above said legal position, if the
evidence of PW-7/Mohd. Irfan and PW-10/Investigating Officer
is considered, it nowhere shows that the statement was a
voluntary statement and the accused led them towards the place
where the articles were concealed. The evidence of Investigating
Officer is to the extent that, the articles were seized from the
accused No.2/Raju. Therefore, mere recovery is not sufficient to
infer authorship of concealment by the person who discovered
the articles. Therefore, the evidence of PW-7/Mohd. Irfan and
PW-10/Investigating Officer are not sufficient to prove the
discovery panchnama.
30. As observed earlier, that the prosecution placed
23 CRI.APPEAL.51-2020.JUDGMENT.odt
reliance on the direct evidence of the eyewitnesses who have
not supported the prosecution case. The second circumstance on
which the prosecution relied upon the dying declaration which
is not cogent and trustworthy and not recorded by the
Investigating Officer as per the requirement, and therefore,
corroboration was required. The third circumstance on which
the prosecution has relied upon is the evidence of PW-7/Mohd.
Irfan and PW-10/Investigating Officer as to the recovery, which
is also not acceptable in the light that, PW-10/Investigating
Officer nowhere states that the statement of accused was
voluntary and accused led them towards the spot where the
articles were concealed. Evidence of PW-7/Mohd. Irfan is also
not sufficient to show that in perusal of the voluntary statement,
the accused led them and there was a discovery of place where
the articles were seized. The CA reports Exhs. 53, 54, 55 and 57
are on record. As per Exh.53, Blood Group of deceased is "A". As
per Exh.57, blood stains of Blood Group "A" was found on the
shirt of the accused Manish. The Panch on the seizure
panchnama i.e. PW-7/Mohd. Irfan has not supported the
prosecution case as far as seizure of clothes are concerned. The
evidence of the PW-10/Investigating Officer has also not proved
24 CRI.APPEAL.51-2020.JUDGMENT.odt
the Seizure memos as to the clothes of the accused Manish.
31. Learned Trial Court has rightly appreciated the
evidence and rightly observed that, the evidence of dying
declaration is the solemn document made by the deceased and
there is no opportunity for the accused to cross-examine
because the victim is already dead and in such circumstances
the dying declaration should inspire the confidence. The Trial
Court has further considered that, the evidence as to the
recovery of the weapons is also not proved by the prosecution
and benefit of doubt goes to the accused.
32. Present Appeal is preferred by the State against the
acquittal. It is settled law that, acquittal of an accused cannot be
set aside merely because there is a different view. Though the
Appellate Court has full power to review the evidence upon
which the acquittal is founded. The principles are laid down are
that;
i) An appeal of acquittal, the High Court possess all the
powers, and nothing less than powers it possesses
while hearing an appeal against an order of conviction.
ii) The Court has the power to reconsider the whole
25 CRI.APPEAL.51-2020.JUDGMENT.odt
issue reappraise the evidence and come to its own
conclusion and finding in place of the findings
recorded by the Trial Court, if the said findings are
against the weight of the evidence on record, or in
other words perverse.
iii) Before reversing of finding of acquittal, the Court
has to consider each ground on which the order of
acquittal was based and to record its own reason for
not accepting those grounds.
iv) The Court has also to keep in mind that the Trial
Court had the advantage of looking at the demeanor of
witnesses and observing their conduct in the Court
especially in the witness box.
v) The Court has also to keep in mind that even at that
stage the accused was entitled to benefit of doubt. The
doubt should be such as a reasonable person would
honestly and consciously entertain as to the guilt of the
accused.
33. The Hon'ble Apex Court in the case of Chandrappa
& Ors. Vs. State of Karnataka, reported in (2007) 4 SCC 415
highlighted that there is one significance difference in exercising
power while hearing appeal against acquittal by the Appellate
Court the Appellate Court would not interfere where the
judgment impugned is based on evidence and the view taken
26 CRI.APPEAL.51-2020.JUDGMENT.odt
was reasonable and plausible. This is because the Appellate
Court would determine that there is presumption in favour of
the accused and the accused is entitled to get the benefit of
doubt but if it decides to interfere it should assign reasons for
differing with the decision of the acquittal.
34. Thus, it is well settled that, while exercising
appellate powers, especially while dealing with appeal against
acquittals, cardinal principle to be kept in mind is that, there is
presumption of innocence in favour of accused unless the
accused is proved guilty. The presumption continues and finally
culminates into a fact when the case ends in acquittal. The
possibility of two views in criminal cases is not an extraordinary
phenomenon while considering appeals against acquittal. A fact
cannot lose sight of the same. The Trial Court has appreciated
the entire evidence and reversal of the order of acquittal is not
to be based on mere existence of different views or mere
difference of opinion. Normally, while exercising the appellate
jurisdiction, it is the duty of the Appellate Court to see, whether
the decision is correct or incorrect on law or facts. While dealing
with the appeals against acquittal, the Court cannot examined
27 CRI.APPEAL.51-2020.JUDGMENT.odt
the impugned judgment only to find out whether the view was
taken correct or incorrect. After reappreciating the oral and
document evidence, the Appellate Court must first decide
whether the Trial Court's view was a possible view. The
Appellate Court cannot overturn acquittal only on the ground
that after reappreciating evidence, it is of the view that the guilt
of the accused was established beyond a reasonable doubt.
35. After appreciating the evidence on record, we do not
find any error committed by the learned Judge of the Trial
Court. The appreciation of the evidence is on the basis of sifting
and weighing the material facts and on that ground, the Appeal
of the State deserves to be dismissed. The judgment impugned
in the Appeal appears to be legal and correct and nothing is on
record to arrive at a finding to show that the judgment
impugned is perverse or illegal. The view taken by the learned
Judge of the Trial Court is a possible view, and therefore, no
interference in the judgment passed by the learned Judge of the
Trial Court is called for.
36. In the light of above, the Appeal deserves to be
dismissed being devoid of merits.
28 CRI.APPEAL.51-2020.JUDGMENT.odt
37. Pending application/s, if any, shall stand disposed of
accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 25/09/2025 18:44:34
