Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
CRIMINAL APPEAL NO. 457 OF 1993
The State of Maharashtra,
(through P.S.O. Badnera) ... APPELLANT
...VERSUS...
1. Shrikant @ Balya s/o Gulabrao Shinde,
aged about 17 years,
2. Rajesh s/o Gulabrao Shinde,
aged about 22 years,
3. Gulabrao s/o Vyankatrao Shinde,
aged about 55 years,
(Appeal against R. No. 3 abated as per
Court's order dated 2.7.2007)
4. Pradeep s/o Gulabrao Shinde,
aged about 27 years,
All r/o Yeshodanagar, Amravati,
Tq. & Distt. Amravati. ...RESPONDENTS
Accused
=================================
Shri. N.S.Khubalkar, A.P.P. for Appellant – State.
Shri R.M. Patwardhan, Advocate, for Respondent Nos. 1, 2 & 4
=================================
CORAM :- K.J.ROHEE & S. R. DONGAONKAR, JJ.
RESERVED FOR JUDGMENT ON : 04.O8.2007
::: Downloaded on - 02/06/2024 02:59:11 :::
2
JUDGMENT PRONOUNCED ON : 17.08.2007
JUDGMENT (per S.R.DONGAONKAR, J.)
1. The appellant State has preferred this appeal to
challenge the acquittal of the respondents in Sessions Trial No.
188/92, recorded by Additional Sessions Judge, Amravati, by
his judgment dated 13.9.1993, for the offence under Section
302 r/w Section 34 of Indian Penal Code.
2. The brief facts leading to the prosecution of the
respondents are that,-
Respondent No. 1 Shrikant @ Balya, Respondent No. 2
Rajesh and Respondent No. 4 Pradeep who are sons of
Respondent No. 3 Gulabrao (now deceased) were living at
Yeshodanagar, Amravati. One Rajan s/o Netram Vijaywargi was
residing at Navi Wasti, Badnera. On the day of incident i.e. on
13.7.1992 at about 3.30 – 4.00 p.m., Rajan was proceeding
from his house by the side of Mahavir Jain Dharmashala. It is
alleged that this Rajan had an evil eye over the daughter of
::: Downloaded on - 02/06/2024 02:59:11 :::
3
respondent No. 3 - Gulab. On that day when he was proceeding
by the road, all these accused persons came across the said
Rajan near Mahavir Jain Dharmashala, Badnera. They
obstructed and assaulted him by knife. He suffered injuries on
his chest and stomach. PW-1 Bablu Jayant Mishra and PW-3
Chandresh Pandya had witnessed the whole of the incident i.e.
they had seen the actual assault by the accused persons on the
deceased Rajan and the manner thereof. The deceased was
taken by these P.Ws, one Ajay and other persons in auto to the
Police Station Badnera. He was so taken in the autorickshaw of
one Gaffar. Thereafter, considering his seriousness of injuries,
he was taken to General Hospital, Amravati. In the Hospital,
the dying declaration of the deceased came to be recorded.
The same was recorded by PW-6 Madhukar Sonone, Special
Judicial Magistrate of Amravati (Exh.32). It was recorded after
obtaining the certificate of the Medical Officer regarding fitness
of deceased Rajan to make a statement. This fitness
certificate was issued by PW-4 Dr. Sau. Nalaini Shinde. It may
be stated that at the time of admission of deceased in the
::: Downloaded on - 02/06/2024 02:59:11 :::
4
Hospital, PW-5 Dr. Kalpana Chandrashekhar had examined him
and had issued certificate of his injuries, which is at Exh. 34.
According to her, the injuries were sufficient to cause death of
the deceased in the ordinary course.
3. During the course of investigation, when the knife was
seized at the instance of accused no. 1, the same was referred
to Dr. Kalpana Chandrashekhar for medical opinion and she had
stated that the said injuries on the person of deceased Rajan
could have been caused by this knife. This Rajan expired in the
Hospital. The inquest panchanama was prepared and autopsy
on the dead body was conducted. PW-2 Dr. Kiran Wathodkar
prepared post mortem report, which is at Exh. 27. He had
opined that there was incised wound in the lung which was vital
organ and that the deceased had died due to shock due to
injury to vital organ and extensive haemorrhage. The offence
which was registered earlier for the offence under Section 307
r/w Section 34 of Indian Penal Code vide Crime No. 164/92 on
the basis of the said dying declaration, was later on converted
::: Downloaded on - 02/06/2024 02:59:11 :::
5
into one under Section 302 of Indian Penal Code because of the
death of deceased. API Barbade (PW-8) carried out the
investigation. He prepared spot panchanama (Exh.13). He
seized clothes of the injured (deceased) as per Exh. 12. He had
arrested the accused persons on 14.7.1992. On intimation of
the death of Rajan on 15.7.1992, he had registered the offence
under Section 302 of Indian Penal Code. During the
investigation, he had sent the seized articles and blood sample
etc., for Chemical Analyzer's report, so also, he had seized the
knife from accused No. 1 Shrikant. He submitted the charge-
sheet for the relevant offence against Respondents.
4. On committal of the case, learned Additional Sessions
Judge, Amravati, framed the charge against the respondents.
When the same was explained to the respondents, they pleaded
not guilty. According to all of them, they did not commit the
offence and they were at different places at the relevant time.
Respondent No. 1 Shrikant in defence has claimed that PW-1
Bablu and PW-3 Chandresh are companions of the deceased
::: Downloaded on - 02/06/2024 02:59:11 :::
6
and they are deposing false. They had also beaten respondent
Rajesh. Respondent No. 2 Rajesh has contended that at the
relevant time he was appearing for B.A.M.S. Course and he was
in the college, attending lecture. Respondent No. 3 Gulab
raised a defence that he was doing his duty of watchman at the
relevant time in his M.S.E.B. Office. Respondent No. 4 Pradeep
claimed that at the relevant time he was at Surat. Thus, all of
them denied to have assaulted the deceased and also their
presence on the spot.
5. The prosecution has examined the above mentioned
witnesses to prove the case. Prosecution has specifically relied
on the evidence of PW-1 Bablu and PW-3 Chandresh, who
claimed to be the eye-witnesses to the incident. It has also
relied on the evidence of PW-6 Madhukar Sonone, Special
Judicial Magistrate, to prove the dying declaration of deceased
Rajan. Apart from this, the prosecution has relied on the
evidence of PW-2 Dr. Kiran Wathodkar to prove the P.M.Report
and PW-5 Dr. Kalpana Chandrashekhar to show what injuries
::: Downloaded on - 02/06/2024 02:59:11 :::
7
were on the person of deceased Rajan when he was admitted in
the hospital. PW-4 Dr. Nalini Shinde, as stated above, is the
witness to certify the fitness of the deceased to make dying
declaration. PW-7, PSI Thakur and PW-8, API Barbade are
I.Os.
6. The defence has also led evidence of 5 witnesses.
DW-1 Suresh Devoolkar has been examined by the defence to
show that on 13.07.1992 i.e. on the date of incident,
respondent Gulab was on duty of watchman from 3 p.m. to 11
p.m. i.e. the time during which the offence is alleged to have
been committed. Said witness has produced the copy of the
register of the 'handing over and taking over of daily charge of
the watchmen' of his office Vidyut Bhawan as per Exh.64. He
has deposed that respondent Gulab had taken charge from one
Tayade at 3 p.m. He has also stated that Vidyut Bhawan is
situated in the Camp Area, Shivaji Nagar, Amravati, which is
about 11-12 Kms., from Badnera i.e. the spot of incident. DW-2
Dr. Vijay Desai is the Principal of Vidarbha Ayurved
::: Downloaded on - 02/06/2024 02:59:11 :::
8
Mahavidyalaya and DW-3 Dr. Udhao Chore, is the Professor in
the said Vidyalaya who have come to state that R.G.Shinde,
nd
Respondent No. 2 was 2 year student of the said college at the
relevant time and Dr. Udhao Chore had while taking roll-call of
his class marked his presence and he had engaged the period
from 3.15 to 4 p.m. on 13.7.1992. This was in order to show
that at the relevant time respondent no. 2 R.G Shinde was in
the college. DW-4 ASI Pundlik has been examined by the
defence to establish that respondent No. 2 Rajesh had lodged
report against PW-1 Bablu regarding assault on him by razor as
he had taken objection on his keeping evil eye on his sister.
DW-5 Shakil Raheman of Surat has been examined by the
defence to show that since January 1992 Respondent No. 4
Pradeep was employed by him on daily basis in his workshop
i.e. Everest Fabrication Works. He was being paid the wages of
th
Rs.35/- per day. On the day of incident i.e. on 13 July, 1992,
respondent No. 4 Pradeep and other workers were working in
his workshop at Surat and therefore, it is contended by the
defence that it was impossible for Respondent No. 4 Pradeep to
::: Downloaded on - 02/06/2024 02:59:11 :::
9
commit the alleged offence. One DW-6 Gaffar is also examined
by the defence. He had carried P.Ws. & deceased in his
authorickshaw. Thus, the defence wanted to show that it was
impossible for the accused as they were at different places to
come together to commit this offence at Badnera.
7. On considering the evidence and submissions of the
learned counsel for the parties, learned Trial Judge found that
the defence story is probable, and it was established that
Respondent NO. 2 Rajesh was in the College, Respondent No. 3
Gulab was working as watchman in Vidyut Bhawan at the
relevant time and Respondent No. 4 Pradeep was working at
Surat on the day of incident. The learned trial Judge did not
accept the contention of the prosecution that all the defence
witnesses are engineered witnesses to prove the 'alibi'. He has
found that unless there was pre-plan by the respondents, they
could not have come suddenly on the spot of incident, unless
they were knowing the movements of deceased Rajan. Three
respondents were far away from the spot of incident and
::: Downloaded on - 02/06/2024 02:59:11 :::
10
therefore, they could not have gathered as to when deceased
Rajan would have come to the spot of incident and thereby
facilitating the assault by knife by all of them. He has also found
that the prosecution witnesses PW-1 Bablu and PW-3 Chandresh
are highly interested witnesses and their evidence is
contradictory to the dying declaration made by deceased Rajan.
He has found that P.Ws who had allegedly seen the assault did
not implicate respondent No. 3 Gulab for the alleged offence,
whereas in the dying declaration deceased Rajan had implicated
all the accused. He has found that the defence evidence
appears to be cogent & sound and as such the the presence of
Respondent No.2 Rajesh, Respondent No.3 Gulab and
Respondent No. 4 Pradeep on the spot has not been established
and they are falsely implicated. As such he discarded the
evidence of the alleged eye witnesses PW-1 Babul and PW-3
Chandresh as unreliable, so also the dying declaration and
acquitted the respondents by giving benefit of doubt.
8. This judgment of acquittal of the accused is challenged
::: Downloaded on - 02/06/2024 02:59:11 :::
11
by the State in this appeal.
9. Learned A.P.P. Mr. N.S.Khubalkar, for appellant State
has contended that deceased Rajan had died of homicidal
death. The fatal injuries on his person are clearly established
by the post mortem report as well as by the evidence of Medical
Officer. He has contended that there is no sufficient reason to
discard the evidence of PW-1 Bablu and PW-3 Chandresh who
are alleged eye-witnesses and whose evidence is supporting the
dying declaration made by deceased Rajan to PW-6, Special
Judicial Magistrate – Madhukar Sonone. He has contended that
the maxim falsus in uno falsus in omnibus is not applicable
in India, atleast 3 of the accused can be found guilty on the
basis of evidence led by the prosecution. He has further
submitted that the evidence led by the defence is totally
untrustworthy and in fact the same is fabricated. In any case, as
the said evidence is discrepant, the plea of alibi of the
respondent Nos. 2 to 4 is not established. He has specifically
submitted that the evidence of DW-2 Dr. Vijay and DW-3 Dr.
::: Downloaded on - 02/06/2024 02:59:11 :::
12
Udhao does not show that Respondent No.2 Rajesh had in fact
attended the college at the relevant time. It is also his
submission that the evidence of DW-1 Suresh, Administrative
Officer of Vidyut Bhawan does not show that Respondent No. 3
Gulab was present in the office at the time of the alleged
incident. He had made signature later to make out his presence
at the time of incident in the office. He has also submitted that
evidence of DW-5 Shakil, the factory owner, does not
conclusively show that Respondent No.4 Pradeep was working
at his fabrication factory at the relevant time. Needless to state
that he has submitted that the relevant documents produced by
the defence witnesses i.e. the Watchman Duty Register of
Vidyut Bhawan by DW-1 Suresh; Certificate & Roll Call Register
produced by DW-2 Dr. Vijay & DW-3 Dr. Udhao and Attendance
Register of the Workmen produced by DW-5 Shakil are
fabricated documents. According to him, even if they are held
as not fabricated documents, they are not sufficient to establish
the plea of 'alibi' raised by defence. He has relied on some
authorities to contend that the maxim falsus in uno falsus in
::: Downloaded on - 02/06/2024 02:59:11 :::
13
omnibus is not applicable in India (2006) 10 SCC 499 [Major
Sing vs. State of Punjab]; (2003) 12 SCC 449 [ Gorle S.
Naidu v. State of A.P.]; (2004) 10 SCC 120 [ Gubbala
Venugopalkaswamy vs. State of A.P].
10. Mr. R.M.Patwardhan, learned counsel for the
respondents has supported the order of the lower court for the
reasons mentioned in the judgment. It is submitted that the
defence has clearly established the fact that Respondent Nos. 2,
3 & 4 were at the different places as stated by them and
defence evidence clearly proves the same. It is also his
contention that PW-1 Bablu and PW-3 Chandresh are totally
unreliable witnesses as their evidence is contradicted by the
material evidence of dying declaration. The theory of assault as
alleged by these alleged eye witnesses i.e. respondent No. 4
Pradeep catching hold of the deceased at the time of the
assault is clearly negatived and therefore, it is proved to be
false. Further, dying declaration implicating Respondent No. 3
Gulab is false, inasmuch as PW-1 Bablu and PW-3 Chandresh did
::: Downloaded on - 02/06/2024 02:59:11 :::
14
not state anything about the same. According to them, as the
prosecution evidence is materially contradictory to each other
i.e. evidence of eye-witnesses and dying declaration, they need
to be disbelieved totally as the truth and the falsehood cannot
be separated from each other. According to him, the view
taken by the learned trial Judge in acquitting the respondents
cannot be said to be perverse or even untenable and as such,
this being an appeal against the acquittal, the same cannot be
reversed.
11. In order to appreciate the rival contentions of the
parties, it is necessary to note the scope of consideration of the
judgment of acquittal passed by the trial Judge in appeal is
considered in following the observations of the Apex Court in
2007 (2) Crimes 103 SC [Chandrappa & ors. vs. State of
Karnataka] wherein it has been observed
“35. From the above decisions, in our considered view,
the following general principles regarding powers of
appellate Court while dealing with an appeal against an
order of acquittal emerge;
::: Downloaded on - 02/06/2024 02:59:11 :::
15
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence
upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 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 emphasize 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
available to him under the fundamental
principle of criminal jurisprudence that every
person has to 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.
::: Downloaded on - 02/06/2024 02:59:11 :::
16
(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
.
12. Therefore, even if, the other view of guilt of the
respondents is possible, unless the judgment of the trial Judge
of acquittal is shown to be perverse to the record or unless
there are some compelling reasons to overturn the same, the
same cannot be interfered with.
13. Here is the case where bold defence has been taken by
the defence by leading the evidence of 6 witnesses. Their main
contention seems to be that Respondent Nos. 2 to 4 were at
different places where they could have been in the natural
course. The spot of incident is far away from the residence of
Respondent No.1 and therefore, all of them could not have
come together as they could not have been in a knowledge of
the movements of deceased Rajan, to assault him. Therefore, it
is necessary to appreciate the evidence of eye-witnesses &
::: Downloaded on - 02/06/2024 02:59:11 :::
17
dying declaration vis-a-vis the impact of the defence evidence.
14. It would be seen from the prosecution evidence
particularly PW-1 Bablu and PW-3 Chandresh that their case is
that at the relevant time, they had seen respondent No.1 Rajesh
and Respondent no.2 Bala with knife. They and Respondent
No. 4 Pradeep came running through lane of Jakhade Sahab. At
that time deceased Rajan was coming from Manna Sharma's
house and this Bablu & Chandresh saw this deceased Rajan
being held by Respondent No. 4 Pradeep and giving knife blows
to him by Respondent No. 1 Bala and Respondent No. 2 Rajesh.
Both of them did not say anything regarding the presence or
any overt act, by Respondent No. 3 - Gulab. PW-1 Bablu also
says that they called auto and took Rajan to Police Station
Badnera and one Ajay Joshi & Vilas also accompanied them.
Thereafter Rajan was taken to General Hospital, Amravati, from
the Police Station. As regard this evidence, both of them are
together.
::: Downloaded on - 02/06/2024 02:59:11 :::
18
15. In cross examination, PW-1 Bablu has stated about
some omissions in his statement. He has also stated in the cross
examination that accused Gulab i.e. Respondent No.3 Gulab is
working in Electrical Department at Amravati; Respondent No.4
Pradeep is working at Surat. He also stated in cross
examination that Respondent no. 2 Rajesh is taking education in
Ayurved College. He admitted that deceased Rajan was
prosecuted in Joshi's murder case and there are many
prosecutions pending against him. He has pleaded ignorance
as to whether deceased Rajan had beaten Respondent No. 3
Rajesh. He has further stated that there were no differences
between Rajan and accused persons i.e. respondents, meaning
thereby that there was no reason or motive for any assault.
16. PW-3 Chandresh has supported the prosecution case in
this regard. He also specifically stated that Respondent No. 4
Pradip had held deceased Rajan across the neck and the other
respondents assaulted him by knife. In cross examination, he
stated that he had friendship with deceased Rajan since
::: Downloaded on - 02/06/2024 02:59:11 :::
19
childhood. Therefore, it is clear from their evidence that they
are closely associated with deceased Rajan. His evidence is
also riddled with the improvements.
17. Thus, it would be seen that both these witnesses
clearly excluded Respondent No. 3 Gulab from the list of alleged
assailants. They also clearly stated that Respondent No. 4
Pradeep had held the deceased at the time of assault. It is also
apparent that they are interested witnesses.
18. The incident is of broad day light. Considering the
spot of incident, there is every possibility of there being the
independent witnesses noticing this incident, but none of them
has been examined.
19. The death of the deceased because of the injuries
mentioned in P.M. notes is not disputed. PW-2 Dr. Kiran has
deposed about the same. He stated that death was due to
shock due to injury to vital organ i.e. Lung and extensive
::: Downloaded on - 02/06/2024 02:59:11 :::
20
hemorrhage. He has also opined that the knife shown to him
could have caused the injuries.
20. As such, it clearly appears that the deceased had died
due to assault by knife in the incident, but the crucial question
is whether it is established that all these respondents or any of
them are responsible for the same.
21. This takes us to consider the evidence of dying
declaration of the deceased. PW-6 Madhukar Sonone has
stated that he had recorded the dying declaration after getting
the fitness certificate from the Medical Officer. This dying
declaration clearly shows that deceased had made a statement
that all the respondents had assaulted him. In his words, he has
named all these respondents as an assailant. It is important to
note what he stated to, two of the questions, particularly “what
happened to you” and “who admitted you in the Government
Hospital this day”. The answers are;
Answer : This day 13.7.92 at 3 O'clock in the afternoon when I
::: Downloaded on - 02/06/2024 02:59:11 :::
21
was coming from the house the persons namely Rajesh
Shinde, resident of Badnera, who is from Electric office,
Bala Shinde, resident of Badnera, and Pradeep Shinde,
these three Brothers and their father Gulabrao Shinde
(caught me) near Mahavir Dharamshala, Badnera, and
assaulted me with knife. I sustained injuries on my
chest and abdomen.
Answer : After I was assaulted, I went to Badnera Police Station
where I lodged report and thereafter the Police from
Badnera Police Station admitted me in the Government
Hospital, Amravati.
It will clearly show that deceased had named all the
respondents as an assailants and he specifically named
respondent no. 3 Gulab of having assaulted him by knife. He
also stated that after he was assaulted, he came to Badnera
Police Station and lodged report and thereafter Badnera Police
had sent him to Amravati Government Hospital. No authority is
needed to say that this dying declaration is in material
contradiction with the evidence of the eye witnesses as regards
assault by Respondent No. 3 Gulab & taking him to P.S.
Badnera.
22. At this stage, it is necessary to consider the defence
::: Downloaded on - 02/06/2024 02:59:11 :::
22
evidence. As regards Respondent No. 4 Pradeep, the defence
has examined DW-5 Shakil, who is resident of Surat, who has
stated that he runs “Everest Fabrication Works” at Surat and he
had engaged the services of Respondent No. 4 Pradeep Shinde
since January, 1992. He produced the muster of his workers in
which he marked presence by letter 'P' and absence by 'X'. He
has produced zerox copy of the relevant muster, which showed
th
that respondent No.4 Pradeep was there on 13 July, 1992 i.e.
the day of incident. He also states that he had paid the wages
th
on 26 July, 1992. He further stated that on 1.8.1992 the
policemen had come and asked about Respondent No. 4
Pradeep and he told about the presence of Respondent No. 4
Pradeep on the relevant day. The zerox copy of the Muster Roll
produced by him, also shows the names of other workers to
whom he had paid wages and their signatures on the same. It
also seems that he used to mark 'P' for presence and 'X' for
absence. He has produced the muster of earlier months also.
There is nothing on record to infer that the same might have
been fabricated. It is true that this witness in cross examination
::: Downloaded on - 02/06/2024 02:59:11 :::
23
has admitted that such muster rolls are available in market and
he did not inform the presence of his workers to the concerned
Labour Officer, but then this fact by itself would not cast doubts
on the zerox copies of the muster roll which showed the
maintenance of the same in his regular course of business,
even for earlier months. Nothing has been pointed out as to
why it should be held that this witness has any reason to
fabricate the muster roll in such a fashion to save Respondent
No. 4 Pradeep. It is obvious that, had he been fabricating the
evidence of muster roll only to save Respondent No.4 Pradeep,
he would not have prepared the muster rolls of earlier months
mentioning the names of this respondent no. 4 Pradeep and
other workers. Even the material brought in the cross
examination does not exclude the possibility of respondent no.
4 Pradeep being present at his workshop on the day of incident.
This would clearly mean that the theory of the eye-witnesses
and the dying declaration as regards implicating respondent no.
4 Pradeep in the said assault is not trustworthy.
::: Downloaded on - 02/06/2024 02:59:11 :::
24
23. This takes us to consider the defence evidence
regarding Respondent No. 3 Gulab. DW-1 Suresh, who is
working as Administrative Officer in Vidyut Bhawan Circle,
Amravati, has been examined. He deposed regarding the
presence of respondent no.3 Gulab on duty from 3 p.m. to 11
p.m. on 13..7.1992. He has produced the relevant extract of
watchman register which shows 'giving & taking charge' and its
time. Register shows the presence of watchmen mentioned in
the said register upto 16.7.1992. His office had also issued
letter to respondent no. 3 Gulab to call explanation of his
absence from 14.7.1992. There is nothing in his cross
examination to show that he has any reason to prepare false
record to save respondent no. 3 Gulab. As already pointed out
above, PW-1 Bablu and PW-3 Chandresh also did not implicate
him, but only dying declaration of deceased Rajan shows that
he was one of the assailant. This clearly tends to show that the
dying declaration of deceased Rajan is far from trushworthiness.
24. Adverting to the evidence of other defence witnesses
::: Downloaded on - 02/06/2024 02:59:11 :::
25
DW-2 Dr.Vijay Desai and DW-3 Dr. Udhao Choure, it would be
seen that respondent Rajesh was studying in B.A.M.S. Part II in
the relevant year and his presence was shown for the lecture of
DW-3 Dr. Udhao Choure during the period from 3.15 p.m. to 4
p.m. on the day of incident. This witness has no doubt admitted
that he concentrates upon the subject and does not tally the
number of the person present with the register, but that fact by
itself will not discredit his evidence and that of DW-2 Dr. Vijay.
It is pertinent to note that though it is true that any student can
make out the presence of other student possibly by proxy; it is
not possible to say in this case that respondent no. 2 Rajesh did
the same thing to make a show of his presence in the college,
though he had taken part in the assault on the deceased. It is
necessary to bear in mind that mere possibility of his presence
being marked by other student, cannot lead to that conclusion
unless there is some other material on record to make out that
possibility, a reality. In our opinion, in such a case,
Respondent No.2 Rajesh would not have taken a risk of
examining his lecturer and principal to prove his “alibi”. It is
::: Downloaded on - 02/06/2024 02:59:11 :::
26
difficult to say that Respondent No.2 Rajesh had done all these
things to prove his alibi after taking part in the incident and
even that the witnesses of such status would have later on
helped respondent no. 2 Rajesh to save him; from the liability
of serious offence.
25. Therefore, the evidence led by the defence clearly
rules out the probability that Respondent Nos. 2 to 4 must have
taken part in the said incident of fatal assault on deceased.
26. The question then would be, whether on the strength
of the prosecution evidence, respondent no. 1 Shrikant can be
held guilty of the offence charged.
27. We are aware that even if some part of the evidence of
the witnesses is found to be unreliable, the other part can be
relied upon and the maxim falsus in uno falsus in omnibus is
not applicable in India. But then reliable evidence need to be
capable for separation from unreliable evidence i.e. it should be
::: Downloaded on - 02/06/2024 02:59:11 :::
27
possible to sift grain from chaff. There cannot be pick & choose
in evidence for having conviction.
28. At this stage, therefore, it is necessary to see the
dying declaration. Deceased has stated that he had been to
Badnera Police Station. He did not refer to PW-1 Bablu and
PW-3 Chandresh or any other witnesses, while answering the
question. The tenor or his answer in the dying declaration to
the relevant question would show that he alone had been to
Badnera Police Station. This inconsistency is not explained by
the learned prosecutor. Apart from this, it would be seen from
the evidence of DW-6 Gaffar Beig, although he was declared
hostile by the defence, has stated that at the relevant time one
boy came to him and asked him if auto rickshaw is available.
He said 'no'. Thereafter Rajan and one Bablya came to him. He
took them to Police Station Badnera. He does not refer to other
persons including PW-3 Chandresh. Although in cross-
examination by learned A.P.P., he stated that the first boy who
came to him was Chandresh. His evidence clearly shakes the
::: Downloaded on - 02/06/2024 02:59:11 :::
28
prosecution case. No doubt, he has not fully supported the
defence, but the fact remains that he was also cited by the
prosecution as prosecution witness and it did not examine him.
Therefore, his evidence, clearly negatives the statement made
by the deceased in the dying declaration.
29. As already pointed out above, deceased Rajan has
been admitted to have faced one murder charge and he was
facing some criminal cases. The possibility, therefore, of others
having assaulted him cannot be overruled. No doubt, in the
circumstances of the case, there is suspicion, atleast against
Respondent No. 1 Shrikant, but then that suspicion cannot take
a place of proof. The conviction has to be based on legally
admissible evidence and the same has to be found trustworthy
and should not be susceptible of admitting any doubt. In this
view of the matter, authorities referred by the learned A.P.P. are
not attracted.
30. The learned trial Judge after considering the evidence
::: Downloaded on - 02/06/2024 02:59:11 :::
29
on record has come to the conclusion that the defence raised by
Respondent Nos. 2 to 4 has clearly proved their case and the
prosecution case as alleged is, therefore, improbable. He has
also found that the presence of PW-1 Bablu and PW-3
Chadnresh on the spot is doubtful. The reasons recorded by
him, to reach the judgment of acquittal, cannot be said to be
perverse to the record. As already pointed out above, merely
because the view that the respondent no. 1 can be guilty of the
offence alleged is possible, it is not sufficient to reverse the
judgment of acquittal. As such appeal needs to be dismissed.
The same is dismissed.
JUDGE JUDGE
Rvjalit
::: Downloaded on - 02/06/2024 02:59:11 :::
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
CRIMINAL APPEAL NO. 457 OF 1993
The State of Maharashtra,
(through P.S.O. Badnera) ... APPELLANT
...VERSUS...
1. Shrikant @ Balya s/o Gulabrao Shinde,
aged about 17 years,
2. Rajesh s/o Gulabrao Shinde,
aged about 22 years,
3. Gulabrao s/o Vyankatrao Shinde,
aged about 55 years,
(Appeal against R. No. 3 abated as per
Court's order dated 2.7.2007)
4. Pradeep s/o Gulabrao Shinde,
aged about 27 years,
All r/o Yeshodanagar, Amravati,
Tq. & Distt. Amravati. ...RESPONDENTS
Accused
=================================
Shri. N.S.Khubalkar, A.P.P. for Appellant – State.
Shri R.M. Patwardhan, Advocate, for Respondent Nos. 1, 2 & 4
=================================
CORAM :- K.J.ROHEE & S. R. DONGAONKAR, JJ.
RESERVED FOR JUDGMENT ON : 04.O8.2007
::: Downloaded on - 02/06/2024 02:59:11 :::
2
JUDGMENT PRONOUNCED ON : 17.08.2007
JUDGMENT (per S.R.DONGAONKAR, J.)
1. The appellant State has preferred this appeal to
challenge the acquittal of the respondents in Sessions Trial No.
188/92, recorded by Additional Sessions Judge, Amravati, by
his judgment dated 13.9.1993, for the offence under Section
302 r/w Section 34 of Indian Penal Code.
2. The brief facts leading to the prosecution of the
respondents are that,-
Respondent No. 1 Shrikant @ Balya, Respondent No. 2
Rajesh and Respondent No. 4 Pradeep who are sons of
Respondent No. 3 Gulabrao (now deceased) were living at
Yeshodanagar, Amravati. One Rajan s/o Netram Vijaywargi was
residing at Navi Wasti, Badnera. On the day of incident i.e. on
13.7.1992 at about 3.30 – 4.00 p.m., Rajan was proceeding
from his house by the side of Mahavir Jain Dharmashala. It is
alleged that this Rajan had an evil eye over the daughter of
::: Downloaded on - 02/06/2024 02:59:11 :::
3
respondent No. 3 - Gulab. On that day when he was proceeding
by the road, all these accused persons came across the said
Rajan near Mahavir Jain Dharmashala, Badnera. They
obstructed and assaulted him by knife. He suffered injuries on
his chest and stomach. PW-1 Bablu Jayant Mishra and PW-3
Chandresh Pandya had witnessed the whole of the incident i.e.
they had seen the actual assault by the accused persons on the
deceased Rajan and the manner thereof. The deceased was
taken by these P.Ws, one Ajay and other persons in auto to the
Police Station Badnera. He was so taken in the autorickshaw of
one Gaffar. Thereafter, considering his seriousness of injuries,
he was taken to General Hospital, Amravati. In the Hospital,
the dying declaration of the deceased came to be recorded.
The same was recorded by PW-6 Madhukar Sonone, Special
Judicial Magistrate of Amravati (Exh.32). It was recorded after
obtaining the certificate of the Medical Officer regarding fitness
of deceased Rajan to make a statement. This fitness
certificate was issued by PW-4 Dr. Sau. Nalaini Shinde. It may
be stated that at the time of admission of deceased in the
::: Downloaded on - 02/06/2024 02:59:11 :::
4
Hospital, PW-5 Dr. Kalpana Chandrashekhar had examined him
and had issued certificate of his injuries, which is at Exh. 34.
According to her, the injuries were sufficient to cause death of
the deceased in the ordinary course.
3. During the course of investigation, when the knife was
seized at the instance of accused no. 1, the same was referred
to Dr. Kalpana Chandrashekhar for medical opinion and she had
stated that the said injuries on the person of deceased Rajan
could have been caused by this knife. This Rajan expired in the
Hospital. The inquest panchanama was prepared and autopsy
on the dead body was conducted. PW-2 Dr. Kiran Wathodkar
prepared post mortem report, which is at Exh. 27. He had
opined that there was incised wound in the lung which was vital
organ and that the deceased had died due to shock due to
injury to vital organ and extensive haemorrhage. The offence
which was registered earlier for the offence under Section 307
r/w Section 34 of Indian Penal Code vide Crime No. 164/92 on
the basis of the said dying declaration, was later on converted
::: Downloaded on - 02/06/2024 02:59:11 :::
5
into one under Section 302 of Indian Penal Code because of the
death of deceased. API Barbade (PW-8) carried out the
investigation. He prepared spot panchanama (Exh.13). He
seized clothes of the injured (deceased) as per Exh. 12. He had
arrested the accused persons on 14.7.1992. On intimation of
the death of Rajan on 15.7.1992, he had registered the offence
under Section 302 of Indian Penal Code. During the
investigation, he had sent the seized articles and blood sample
etc., for Chemical Analyzer's report, so also, he had seized the
knife from accused No. 1 Shrikant. He submitted the charge-
sheet for the relevant offence against Respondents.
4. On committal of the case, learned Additional Sessions
Judge, Amravati, framed the charge against the respondents.
When the same was explained to the respondents, they pleaded
not guilty. According to all of them, they did not commit the
offence and they were at different places at the relevant time.
Respondent No. 1 Shrikant in defence has claimed that PW-1
Bablu and PW-3 Chandresh are companions of the deceased
::: Downloaded on - 02/06/2024 02:59:11 :::
6
and they are deposing false. They had also beaten respondent
Rajesh. Respondent No. 2 Rajesh has contended that at the
relevant time he was appearing for B.A.M.S. Course and he was
in the college, attending lecture. Respondent No. 3 Gulab
raised a defence that he was doing his duty of watchman at the
relevant time in his M.S.E.B. Office. Respondent No. 4 Pradeep
claimed that at the relevant time he was at Surat. Thus, all of
them denied to have assaulted the deceased and also their
presence on the spot.
5. The prosecution has examined the above mentioned
witnesses to prove the case. Prosecution has specifically relied
on the evidence of PW-1 Bablu and PW-3 Chandresh, who
claimed to be the eye-witnesses to the incident. It has also
relied on the evidence of PW-6 Madhukar Sonone, Special
Judicial Magistrate, to prove the dying declaration of deceased
Rajan. Apart from this, the prosecution has relied on the
evidence of PW-2 Dr. Kiran Wathodkar to prove the P.M.Report
and PW-5 Dr. Kalpana Chandrashekhar to show what injuries
::: Downloaded on - 02/06/2024 02:59:11 :::
7
were on the person of deceased Rajan when he was admitted in
the hospital. PW-4 Dr. Nalini Shinde, as stated above, is the
witness to certify the fitness of the deceased to make dying
declaration. PW-7, PSI Thakur and PW-8, API Barbade are
I.Os.
6. The defence has also led evidence of 5 witnesses.
DW-1 Suresh Devoolkar has been examined by the defence to
show that on 13.07.1992 i.e. on the date of incident,
respondent Gulab was on duty of watchman from 3 p.m. to 11
p.m. i.e. the time during which the offence is alleged to have
been committed. Said witness has produced the copy of the
register of the 'handing over and taking over of daily charge of
the watchmen' of his office Vidyut Bhawan as per Exh.64. He
has deposed that respondent Gulab had taken charge from one
Tayade at 3 p.m. He has also stated that Vidyut Bhawan is
situated in the Camp Area, Shivaji Nagar, Amravati, which is
about 11-12 Kms., from Badnera i.e. the spot of incident. DW-2
Dr. Vijay Desai is the Principal of Vidarbha Ayurved
::: Downloaded on - 02/06/2024 02:59:11 :::
8
Mahavidyalaya and DW-3 Dr. Udhao Chore, is the Professor in
the said Vidyalaya who have come to state that R.G.Shinde,
nd
Respondent No. 2 was 2 year student of the said college at the
relevant time and Dr. Udhao Chore had while taking roll-call of
his class marked his presence and he had engaged the period
from 3.15 to 4 p.m. on 13.7.1992. This was in order to show
that at the relevant time respondent no. 2 R.G Shinde was in
the college. DW-4 ASI Pundlik has been examined by the
defence to establish that respondent No. 2 Rajesh had lodged
report against PW-1 Bablu regarding assault on him by razor as
he had taken objection on his keeping evil eye on his sister.
DW-5 Shakil Raheman of Surat has been examined by the
defence to show that since January 1992 Respondent No. 4
Pradeep was employed by him on daily basis in his workshop
i.e. Everest Fabrication Works. He was being paid the wages of
th
Rs.35/- per day. On the day of incident i.e. on 13 July, 1992,
respondent No. 4 Pradeep and other workers were working in
his workshop at Surat and therefore, it is contended by the
defence that it was impossible for Respondent No. 4 Pradeep to
::: Downloaded on - 02/06/2024 02:59:11 :::
9
commit the alleged offence. One DW-6 Gaffar is also examined
by the defence. He had carried P.Ws. & deceased in his
authorickshaw. Thus, the defence wanted to show that it was
impossible for the accused as they were at different places to
come together to commit this offence at Badnera.
7. On considering the evidence and submissions of the
learned counsel for the parties, learned Trial Judge found that
the defence story is probable, and it was established that
Respondent NO. 2 Rajesh was in the College, Respondent No. 3
Gulab was working as watchman in Vidyut Bhawan at the
relevant time and Respondent No. 4 Pradeep was working at
Surat on the day of incident. The learned trial Judge did not
accept the contention of the prosecution that all the defence
witnesses are engineered witnesses to prove the 'alibi'. He has
found that unless there was pre-plan by the respondents, they
could not have come suddenly on the spot of incident, unless
they were knowing the movements of deceased Rajan. Three
respondents were far away from the spot of incident and
::: Downloaded on - 02/06/2024 02:59:11 :::
10
therefore, they could not have gathered as to when deceased
Rajan would have come to the spot of incident and thereby
facilitating the assault by knife by all of them. He has also found
that the prosecution witnesses PW-1 Bablu and PW-3 Chandresh
are highly interested witnesses and their evidence is
contradictory to the dying declaration made by deceased Rajan.
He has found that P.Ws who had allegedly seen the assault did
not implicate respondent No. 3 Gulab for the alleged offence,
whereas in the dying declaration deceased Rajan had implicated
all the accused. He has found that the defence evidence
appears to be cogent & sound and as such the the presence of
Respondent No.2 Rajesh, Respondent No.3 Gulab and
Respondent No. 4 Pradeep on the spot has not been established
and they are falsely implicated. As such he discarded the
evidence of the alleged eye witnesses PW-1 Babul and PW-3
Chandresh as unreliable, so also the dying declaration and
acquitted the respondents by giving benefit of doubt.
8. This judgment of acquittal of the accused is challenged
::: Downloaded on - 02/06/2024 02:59:11 :::
11
by the State in this appeal.
9. Learned A.P.P. Mr. N.S.Khubalkar, for appellant State
has contended that deceased Rajan had died of homicidal
death. The fatal injuries on his person are clearly established
by the post mortem report as well as by the evidence of Medical
Officer. He has contended that there is no sufficient reason to
discard the evidence of PW-1 Bablu and PW-3 Chandresh who
are alleged eye-witnesses and whose evidence is supporting the
dying declaration made by deceased Rajan to PW-6, Special
Judicial Magistrate – Madhukar Sonone. He has contended that
the maxim falsus in uno falsus in omnibus is not applicable
in India, atleast 3 of the accused can be found guilty on the
basis of evidence led by the prosecution. He has further
submitted that the evidence led by the defence is totally
untrustworthy and in fact the same is fabricated. In any case, as
the said evidence is discrepant, the plea of alibi of the
respondent Nos. 2 to 4 is not established. He has specifically
submitted that the evidence of DW-2 Dr. Vijay and DW-3 Dr.
::: Downloaded on - 02/06/2024 02:59:11 :::
12
Udhao does not show that Respondent No.2 Rajesh had in fact
attended the college at the relevant time. It is also his
submission that the evidence of DW-1 Suresh, Administrative
Officer of Vidyut Bhawan does not show that Respondent No. 3
Gulab was present in the office at the time of the alleged
incident. He had made signature later to make out his presence
at the time of incident in the office. He has also submitted that
evidence of DW-5 Shakil, the factory owner, does not
conclusively show that Respondent No.4 Pradeep was working
at his fabrication factory at the relevant time. Needless to state
that he has submitted that the relevant documents produced by
the defence witnesses i.e. the Watchman Duty Register of
Vidyut Bhawan by DW-1 Suresh; Certificate & Roll Call Register
produced by DW-2 Dr. Vijay & DW-3 Dr. Udhao and Attendance
Register of the Workmen produced by DW-5 Shakil are
fabricated documents. According to him, even if they are held
as not fabricated documents, they are not sufficient to establish
the plea of 'alibi' raised by defence. He has relied on some
authorities to contend that the maxim falsus in uno falsus in
::: Downloaded on - 02/06/2024 02:59:11 :::
13
omnibus is not applicable in India (2006) 10 SCC 499 [Major
Sing vs. State of Punjab]; (2003) 12 SCC 449 [ Gorle S.
Naidu v. State of A.P.]; (2004) 10 SCC 120 [ Gubbala
Venugopalkaswamy vs. State of A.P].
10. Mr. R.M.Patwardhan, learned counsel for the
respondents has supported the order of the lower court for the
reasons mentioned in the judgment. It is submitted that the
defence has clearly established the fact that Respondent Nos. 2,
3 & 4 were at the different places as stated by them and
defence evidence clearly proves the same. It is also his
contention that PW-1 Bablu and PW-3 Chandresh are totally
unreliable witnesses as their evidence is contradicted by the
material evidence of dying declaration. The theory of assault as
alleged by these alleged eye witnesses i.e. respondent No. 4
Pradeep catching hold of the deceased at the time of the
assault is clearly negatived and therefore, it is proved to be
false. Further, dying declaration implicating Respondent No. 3
Gulab is false, inasmuch as PW-1 Bablu and PW-3 Chandresh did
::: Downloaded on - 02/06/2024 02:59:11 :::
14
not state anything about the same. According to them, as the
prosecution evidence is materially contradictory to each other
i.e. evidence of eye-witnesses and dying declaration, they need
to be disbelieved totally as the truth and the falsehood cannot
be separated from each other. According to him, the view
taken by the learned trial Judge in acquitting the respondents
cannot be said to be perverse or even untenable and as such,
this being an appeal against the acquittal, the same cannot be
reversed.
11. In order to appreciate the rival contentions of the
parties, it is necessary to note the scope of consideration of the
judgment of acquittal passed by the trial Judge in appeal is
considered in following the observations of the Apex Court in
2007 (2) Crimes 103 SC [Chandrappa & ors. vs. State of
Karnataka] wherein it has been observed
“35. From the above decisions, in our considered view,
the following general principles regarding powers of
appellate Court while dealing with an appeal against an
order of acquittal emerge;
::: Downloaded on - 02/06/2024 02:59:11 :::
15
(1) An appellate Court has full power to review,
reappreciate and reconsider the evidence
upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 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 emphasize 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
available to him under the fundamental
principle of criminal jurisprudence that every
person has to 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.
::: Downloaded on - 02/06/2024 02:59:11 :::
16
(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
.
12. Therefore, even if, the other view of guilt of the
respondents is possible, unless the judgment of the trial Judge
of acquittal is shown to be perverse to the record or unless
there are some compelling reasons to overturn the same, the
same cannot be interfered with.
13. Here is the case where bold defence has been taken by
the defence by leading the evidence of 6 witnesses. Their main
contention seems to be that Respondent Nos. 2 to 4 were at
different places where they could have been in the natural
course. The spot of incident is far away from the residence of
Respondent No.1 and therefore, all of them could not have
come together as they could not have been in a knowledge of
the movements of deceased Rajan, to assault him. Therefore, it
is necessary to appreciate the evidence of eye-witnesses &
::: Downloaded on - 02/06/2024 02:59:11 :::
17
dying declaration vis-a-vis the impact of the defence evidence.
14. It would be seen from the prosecution evidence
particularly PW-1 Bablu and PW-3 Chandresh that their case is
that at the relevant time, they had seen respondent No.1 Rajesh
and Respondent no.2 Bala with knife. They and Respondent
No. 4 Pradeep came running through lane of Jakhade Sahab. At
that time deceased Rajan was coming from Manna Sharma's
house and this Bablu & Chandresh saw this deceased Rajan
being held by Respondent No. 4 Pradeep and giving knife blows
to him by Respondent No. 1 Bala and Respondent No. 2 Rajesh.
Both of them did not say anything regarding the presence or
any overt act, by Respondent No. 3 - Gulab. PW-1 Bablu also
says that they called auto and took Rajan to Police Station
Badnera and one Ajay Joshi & Vilas also accompanied them.
Thereafter Rajan was taken to General Hospital, Amravati, from
the Police Station. As regard this evidence, both of them are
together.
::: Downloaded on - 02/06/2024 02:59:11 :::
18
15. In cross examination, PW-1 Bablu has stated about
some omissions in his statement. He has also stated in the cross
examination that accused Gulab i.e. Respondent No.3 Gulab is
working in Electrical Department at Amravati; Respondent No.4
Pradeep is working at Surat. He also stated in cross
examination that Respondent no. 2 Rajesh is taking education in
Ayurved College. He admitted that deceased Rajan was
prosecuted in Joshi's murder case and there are many
prosecutions pending against him. He has pleaded ignorance
as to whether deceased Rajan had beaten Respondent No. 3
Rajesh. He has further stated that there were no differences
between Rajan and accused persons i.e. respondents, meaning
thereby that there was no reason or motive for any assault.
16. PW-3 Chandresh has supported the prosecution case in
this regard. He also specifically stated that Respondent No. 4
Pradip had held deceased Rajan across the neck and the other
respondents assaulted him by knife. In cross examination, he
stated that he had friendship with deceased Rajan since
::: Downloaded on - 02/06/2024 02:59:11 :::
19
childhood. Therefore, it is clear from their evidence that they
are closely associated with deceased Rajan. His evidence is
also riddled with the improvements.
17. Thus, it would be seen that both these witnesses
clearly excluded Respondent No. 3 Gulab from the list of alleged
assailants. They also clearly stated that Respondent No. 4
Pradeep had held the deceased at the time of assault. It is also
apparent that they are interested witnesses.
18. The incident is of broad day light. Considering the
spot of incident, there is every possibility of there being the
independent witnesses noticing this incident, but none of them
has been examined.
19. The death of the deceased because of the injuries
mentioned in P.M. notes is not disputed. PW-2 Dr. Kiran has
deposed about the same. He stated that death was due to
shock due to injury to vital organ i.e. Lung and extensive
::: Downloaded on - 02/06/2024 02:59:11 :::
20
hemorrhage. He has also opined that the knife shown to him
could have caused the injuries.
20. As such, it clearly appears that the deceased had died
due to assault by knife in the incident, but the crucial question
is whether it is established that all these respondents or any of
them are responsible for the same.
21. This takes us to consider the evidence of dying
declaration of the deceased. PW-6 Madhukar Sonone has
stated that he had recorded the dying declaration after getting
the fitness certificate from the Medical Officer. This dying
declaration clearly shows that deceased had made a statement
that all the respondents had assaulted him. In his words, he has
named all these respondents as an assailant. It is important to
note what he stated to, two of the questions, particularly “what
happened to you” and “who admitted you in the Government
Hospital this day”. The answers are;
Answer : This day 13.7.92 at 3 O'clock in the afternoon when I
::: Downloaded on - 02/06/2024 02:59:11 :::
21
was coming from the house the persons namely Rajesh
Shinde, resident of Badnera, who is from Electric office,
Bala Shinde, resident of Badnera, and Pradeep Shinde,
these three Brothers and their father Gulabrao Shinde
(caught me) near Mahavir Dharamshala, Badnera, and
assaulted me with knife. I sustained injuries on my
chest and abdomen.
Answer : After I was assaulted, I went to Badnera Police Station
where I lodged report and thereafter the Police from
Badnera Police Station admitted me in the Government
Hospital, Amravati.
It will clearly show that deceased had named all the
respondents as an assailants and he specifically named
respondent no. 3 Gulab of having assaulted him by knife. He
also stated that after he was assaulted, he came to Badnera
Police Station and lodged report and thereafter Badnera Police
had sent him to Amravati Government Hospital. No authority is
needed to say that this dying declaration is in material
contradiction with the evidence of the eye witnesses as regards
assault by Respondent No. 3 Gulab & taking him to P.S.
Badnera.
22. At this stage, it is necessary to consider the defence
::: Downloaded on - 02/06/2024 02:59:11 :::
22
evidence. As regards Respondent No. 4 Pradeep, the defence
has examined DW-5 Shakil, who is resident of Surat, who has
stated that he runs “Everest Fabrication Works” at Surat and he
had engaged the services of Respondent No. 4 Pradeep Shinde
since January, 1992. He produced the muster of his workers in
which he marked presence by letter 'P' and absence by 'X'. He
has produced zerox copy of the relevant muster, which showed
th
that respondent No.4 Pradeep was there on 13 July, 1992 i.e.
the day of incident. He also states that he had paid the wages
th
on 26 July, 1992. He further stated that on 1.8.1992 the
policemen had come and asked about Respondent No. 4
Pradeep and he told about the presence of Respondent No. 4
Pradeep on the relevant day. The zerox copy of the Muster Roll
produced by him, also shows the names of other workers to
whom he had paid wages and their signatures on the same. It
also seems that he used to mark 'P' for presence and 'X' for
absence. He has produced the muster of earlier months also.
There is nothing on record to infer that the same might have
been fabricated. It is true that this witness in cross examination
::: Downloaded on - 02/06/2024 02:59:11 :::
23
has admitted that such muster rolls are available in market and
he did not inform the presence of his workers to the concerned
Labour Officer, but then this fact by itself would not cast doubts
on the zerox copies of the muster roll which showed the
maintenance of the same in his regular course of business,
even for earlier months. Nothing has been pointed out as to
why it should be held that this witness has any reason to
fabricate the muster roll in such a fashion to save Respondent
No. 4 Pradeep. It is obvious that, had he been fabricating the
evidence of muster roll only to save Respondent No.4 Pradeep,
he would not have prepared the muster rolls of earlier months
mentioning the names of this respondent no. 4 Pradeep and
other workers. Even the material brought in the cross
examination does not exclude the possibility of respondent no.
4 Pradeep being present at his workshop on the day of incident.
This would clearly mean that the theory of the eye-witnesses
and the dying declaration as regards implicating respondent no.
4 Pradeep in the said assault is not trustworthy.
::: Downloaded on - 02/06/2024 02:59:11 :::
24
23. This takes us to consider the defence evidence
regarding Respondent No. 3 Gulab. DW-1 Suresh, who is
working as Administrative Officer in Vidyut Bhawan Circle,
Amravati, has been examined. He deposed regarding the
presence of respondent no.3 Gulab on duty from 3 p.m. to 11
p.m. on 13..7.1992. He has produced the relevant extract of
watchman register which shows 'giving & taking charge' and its
time. Register shows the presence of watchmen mentioned in
the said register upto 16.7.1992. His office had also issued
letter to respondent no. 3 Gulab to call explanation of his
absence from 14.7.1992. There is nothing in his cross
examination to show that he has any reason to prepare false
record to save respondent no. 3 Gulab. As already pointed out
above, PW-1 Bablu and PW-3 Chandresh also did not implicate
him, but only dying declaration of deceased Rajan shows that
he was one of the assailant. This clearly tends to show that the
dying declaration of deceased Rajan is far from trushworthiness.
24. Adverting to the evidence of other defence witnesses
::: Downloaded on - 02/06/2024 02:59:11 :::
25
DW-2 Dr.Vijay Desai and DW-3 Dr. Udhao Choure, it would be
seen that respondent Rajesh was studying in B.A.M.S. Part II in
the relevant year and his presence was shown for the lecture of
DW-3 Dr. Udhao Choure during the period from 3.15 p.m. to 4
p.m. on the day of incident. This witness has no doubt admitted
that he concentrates upon the subject and does not tally the
number of the person present with the register, but that fact by
itself will not discredit his evidence and that of DW-2 Dr. Vijay.
It is pertinent to note that though it is true that any student can
make out the presence of other student possibly by proxy; it is
not possible to say in this case that respondent no. 2 Rajesh did
the same thing to make a show of his presence in the college,
though he had taken part in the assault on the deceased. It is
necessary to bear in mind that mere possibility of his presence
being marked by other student, cannot lead to that conclusion
unless there is some other material on record to make out that
possibility, a reality. In our opinion, in such a case,
Respondent No.2 Rajesh would not have taken a risk of
examining his lecturer and principal to prove his “alibi”. It is
::: Downloaded on - 02/06/2024 02:59:11 :::
26
difficult to say that Respondent No.2 Rajesh had done all these
things to prove his alibi after taking part in the incident and
even that the witnesses of such status would have later on
helped respondent no. 2 Rajesh to save him; from the liability
of serious offence.
25. Therefore, the evidence led by the defence clearly
rules out the probability that Respondent Nos. 2 to 4 must have
taken part in the said incident of fatal assault on deceased.
26. The question then would be, whether on the strength
of the prosecution evidence, respondent no. 1 Shrikant can be
held guilty of the offence charged.
27. We are aware that even if some part of the evidence of
the witnesses is found to be unreliable, the other part can be
relied upon and the maxim falsus in uno falsus in omnibus is
not applicable in India. But then reliable evidence need to be
capable for separation from unreliable evidence i.e. it should be
::: Downloaded on - 02/06/2024 02:59:11 :::
27
possible to sift grain from chaff. There cannot be pick & choose
in evidence for having conviction.
28. At this stage, therefore, it is necessary to see the
dying declaration. Deceased has stated that he had been to
Badnera Police Station. He did not refer to PW-1 Bablu and
PW-3 Chandresh or any other witnesses, while answering the
question. The tenor or his answer in the dying declaration to
the relevant question would show that he alone had been to
Badnera Police Station. This inconsistency is not explained by
the learned prosecutor. Apart from this, it would be seen from
the evidence of DW-6 Gaffar Beig, although he was declared
hostile by the defence, has stated that at the relevant time one
boy came to him and asked him if auto rickshaw is available.
He said 'no'. Thereafter Rajan and one Bablya came to him. He
took them to Police Station Badnera. He does not refer to other
persons including PW-3 Chandresh. Although in cross-
examination by learned A.P.P., he stated that the first boy who
came to him was Chandresh. His evidence clearly shakes the
::: Downloaded on - 02/06/2024 02:59:11 :::
28
prosecution case. No doubt, he has not fully supported the
defence, but the fact remains that he was also cited by the
prosecution as prosecution witness and it did not examine him.
Therefore, his evidence, clearly negatives the statement made
by the deceased in the dying declaration.
29. As already pointed out above, deceased Rajan has
been admitted to have faced one murder charge and he was
facing some criminal cases. The possibility, therefore, of others
having assaulted him cannot be overruled. No doubt, in the
circumstances of the case, there is suspicion, atleast against
Respondent No. 1 Shrikant, but then that suspicion cannot take
a place of proof. The conviction has to be based on legally
admissible evidence and the same has to be found trustworthy
and should not be susceptible of admitting any doubt. In this
view of the matter, authorities referred by the learned A.P.P. are
not attracted.
30. The learned trial Judge after considering the evidence
::: Downloaded on - 02/06/2024 02:59:11 :::
29
on record has come to the conclusion that the defence raised by
Respondent Nos. 2 to 4 has clearly proved their case and the
prosecution case as alleged is, therefore, improbable. He has
also found that the presence of PW-1 Bablu and PW-3
Chadnresh on the spot is doubtful. The reasons recorded by
him, to reach the judgment of acquittal, cannot be said to be
perverse to the record. As already pointed out above, merely
because the view that the respondent no. 1 can be guilty of the
offence alleged is possible, it is not sufficient to reverse the
judgment of acquittal. As such appeal needs to be dismissed.
The same is dismissed.
JUDGE JUDGE
Rvjalit
::: Downloaded on - 02/06/2024 02:59:11 :::