Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 408 OF 2014
BHASKARRAO & ORS. APPELLANTS
VERSUS
STATE OF MAHARASHTRA RESPONDENT
WITH
CRIMINAL APPEAL NO. 520 OF 2014
DILIP UTTAMRAO MANKAR & ANR. APPELLANTS
VERSUS
STATE OF MAHARASHTRA RESPONDENT
CRIMINAL APPEAL NO. 1328 OF 2014
LAXMAN BHAURAO BHAGAT APPELLANT
Signature Not Verified
Digitally signed by
BALA PARVATHI
Date: 2018.04.26
17:06:49 IST
Reason:
VERSUS
STATE OF MAHARASHTRA RESPONDENT
2
CRIMINAL APPEAL NO. 1228 OF 2014
BABARAO LAXMANRAO ADHAO APPELLANT
VERSUS
STATE OF MAHARASHTRA RESPONDENT
CRIMINAL APPEAL NO. 1223 OF 2014
PRABHAKAR APPELLANT
VERSUS
STATE OF MAHARASHTRA RESPONDENT
CRIMINAL APPEAL NO. 1229 OF 2014
MAROTI MAHADEORAO KOSARE APPELLANT
VERSUS
STATE OF MAHARASHTRA RESPONDENT
CRIMINAL APPEAL NO. 1330 OF 2014
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RAVINDRA & ANR. APPELLANTS
VERSUS
STATE OF MAHARASHTRA RESPONDENT
CRIMINAL APPEAL NO. 1578 OF 2014
VISHNU BHARAO BHAGAT & ANR. APPELLANTS
VERSUS
STATE OF MAHARASHTRA RESPONDENT
JUDGMENT
N.V. RAMANA, J.
1 . These appeals arise out of the common judgment and
st
order, dated 21 December, 2013, passed by the High Court of
Judicature at Bombay, Bench at Nagpur, in Criminal Appeal No.
290 of 1998 whereby the High Court reversed the order of acquittal
passed by the Additional Sessions Judge, Amravati in Sessions Trial
No. 40 of 1995 and convicted all the accused/appellants herein
except accused no. 6 (since dead) for the offence punishable under
4
Sections 147, 148, 452 read with Section 149, Section 302 read
with Section 149 and Section 506 of the Indian Penal Code (IPC).
th
The prosecution story in short is that, on 19 June, 1995
2.
at about 7 pm, in the village Jalka Shahapur an altercation had
taken place between two villagers, namely Shamrao (deceased) and
Balya (Accused No. 4) on the road near a grocery shop over
repayment of Rs.50/. It was alleged that Shamrao (deceased) had
slapped Balya (Accused No. 4) during the scuffle. After sometime,
all the sixteen accused persons armed with weapons, while entering
the house of Shamrao hurling abuses, dragged him out of the
house, assaulted on his hands and legs. They are alleged to have
continuously assaulted Shamrao while simultaneously dragging
him to a field where they finally cut his right palm and left the
place. During the course of assault by the accused, Chanda (PW1)
[ wife of Shamrao ] followed them pleading not to hurt her husband
and out of fear she took shelter in some cattle shed. Later on she
went to the house of one Harshawardhan Bhalekar and informed
him about the incident. Then Harshawardhan Bhalekar along with
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PW1 proceeded to Amravati and informed about the occurrence to
the family members of Shamrao. After that they went to the office of
Superintendent of Police, Amravati where they were advised to lodge
a complaint at Nandgaon Peth police station. Accordingly, a
th
complaint (Ext. 55) was lodged on 20 June, 1995 being crime case
No. 72 of 1995. It may be relevant to reduce a part of the FIR as
under
| Name and<br>addresses of<br>accused, if any | : 1. Gajanan Chincholkar<br>2. Balya Bhagat<br>3. Pramod Khedkar<br>4. Raju Mohol<br>+20 to 25 persons |
|---|---|
| Names and<br>addresses of<br>suspects | : |
| Nature of offence<br>with penal<br>section. Give<br>short<br>descriptions of<br>stolen property<br>with its value if<br>any. | : |
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| for investigation. |
|---|
3. Dattatray Kulkarni, A.P.I. (PW17) took up the
investigation and carried a search for missing Shamrao in the Jalka
st
Shahapur village and ultimately on 21 June, 1995 on the
information of one Ananda Bhurbhure, PW1 and PW17 found the
dead body of Shamrao, in the fields of one Yeshwant Thawale,
without his right palm which they traced at some distance. After
conducting the panchanama of scene of occurrence, inquest report
was drawn, clothes of the deceased were seized, statements of some
witnesses were recorded and the dead body was sent to the Civil
Surgeon at Amravati for postmortem. All the accused, except
accused no. 16 who was stated to be absconding, were arrested and
at their instance, alleged weapons used for the crime were
recovered, disclosure statements recorded, seizure panchanama
recorded and the accused were got medically examined. After
completion of investigation, charges were framed against accused
nos. 1 to 15 to which the accused pleaded not guilty and claimed
trial.
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4. In its effort to prove the guilt of the accused, prosecution
has examined as many as 19 witnesses. Learned trial Judge after
conducting a full fledged trial, came to the conclusion that the
prosecution has failed to establish the guilt of the accused beyond
reasonable doubt, therefore, all the accused, against whom trial
was conducted (accused nos. 1 to 15), were acquitted of the offences
they were charged with. Accused No. 16, who was absconding,
came to be arrested at the end of trial. Hence, the trial court
directed separate trial against him.
5. Aggrieved by the order of acquittal passed by the trial
court, the State of Maharashtra went in appeal before the High
Court. During the pendency of the appeal, before the High Court,
Accused No. 6 expired. The High Court found fault with the
acquittal order passed by the trial court and by its judgment which
is impugned herein, convicted all the accused before it except
accused No. 6, for the offence punishable under Sections 147, 148,
452 read with Section 149, Section 302 read with Section 149 and
Section 506, IPC. They were sentenced to undergo imprisonment for
8
a period of two years for the offence punishable under Sections 147,
148 and 452, IPC. Whereas for the offence punishable under
Section 302 read with Section 149, IPC they were sentenced to
suffer imprisonment for life and to pay a fine of Rs.5,000/ each, in
default, to further suffer imprisonment for one year. They were also
sentenced to suffer imprisonment for a period of six months and to
pay a fine of Rs.500/ each, in default, to further suffer a period of
one month imprisonment for the offence under Section 506, IPC.
However, all the sentences were directed to run concurrently.
Dissatisfied with the judgment of the High Court in
6.
reversing the order of acquittal, the Accused Nos. 1 to 5 and 7 to 14
are before us in these appeals assailing the judgment of the High
Court. It appears that Accused No. 15, Gajanan Pandurang
Chincholkar, has not preferred an appeal against the judgment of
the High Court.
7. It may be beneficial to note that the accused Nos. 1
(Motiram) and 3 (Ravindra) have filed Criminal Appeal No. 1330 of
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2014, Accused Nos. 2 (Bhaskarrao), 9 (Maroti Bhaskarrao Bhagat)
and 10 (Bhagwat Bhaurao Bhagat) have filed Criminal Appeal No.
408 of 2014, Accused Nos. 4 (Balya) and 5 (Vishnu Bharao Bhagat)
have filed Criminal Appeal No. 1578 of 2014, Accused No. 7 (Maroti
Mahadeorao Kosare) has filed Criminal Appeal No. 1229 of 2014,
Accused No. 8 (Laxman Bhaurao Bhagat) has filed Criminal Appeal
1328 of 2014, Accused No. 11 (Prabhakar Narsaji Bhagat) has filed
Criminal Appeal No. 1223 of 2014, Accused No. 12 (Babarao
Laxmanrao Adhao) has filed Criminal Appeal No. 1228 of 2014 and
Accused Nos. 13 (Dilip Uttamrao Mankur) and 14 (Pramod Devidas
Khedkar) have filed Criminal Appeal No. 520 of 2014.
8. On behalf of Accused No. 8, the arguments were
advanced by Mr. V.V.S. Rao, learned senior counsel. Ms. Anagha S.
Desai, learned counsel has argued on behalf of Accused Nos. 2, 7, 9
and 10 to 14, while Mr. Dharmendra Kumar Sinha, learned counsel
made submissions in respect of Accused Nos. 1, 3, 4 and 5. Having
heard the arguments advanced by the respective counsel, as the
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order impugned is one and the same, we proceed to deal with all
these appeals by a common judgment.
It is the case of the appellants—accused that the entire
9.
prosecution story has been concocted to falsely implicate the
innocent appellants and is not based on the true facts and
circumstances. That there were several lapses in the prosecution
theory. That the dead body of the deceased was found in a field
which is about two kms away from the house of the deceased, and
there is no eyewitness to the factum of accused committing the
murder of deceased. His amputated palm was found at some
distance to his dead body, but there was no evidence on record as
to who cut the palm of the deceased. There were also no bloodstains
on any weapon alleged to have been recovered by the investigating
authorities at the instance of accused. All the prosecution witnesses
are interrelated and there was no independent witness to support
the prosecution case. The trial Court has rightly discarded the
evidence of interested witnesses.
11
10. It is also argued that the prosecution has improvised the
circumstances from the stage of lodging FIR to the conclusion of
trial. In the FIR, there was no mention about the alleged quarrel
that took place between the deceased and Accused No. 4 over a
matter of Rs.50/ near a grocery shop. PW1 (wife of the deceased)
introduced the story later on. The owner of the grocery shop was
not examined as a witness whose evidence would be crucial to prove
that a quarrel has taken place which is the whole basis or
provocation for the incident. It was also alleged that there were two
other witnesses namely Charandas and Anant, but they too were
not examined by the prosecution. In the FIR, the names of accused
were specified as only four persons, but 16 persons have been
dragged into the case as accused. The statements of witnesses
varied as to the presence of the accused at the time of occurrence
and their depositions are quite contradictory to the prosecution
case. There was also no test identification parade conducted and all
the accused persons are not familiar to the witnesses. The evidence
of prosecution witnesses is unbelievable inasmuch as the allegation
was that the deceased was dragged on the ground for about 2 kms
12
from his house to the place where his dead body was found, even
then there were no injury marks on the body of the deceased.
It is further submitted by the learned counsel that the
11.
High Court failed to take into consideration the crucial facts that no
test identification parade was conducted, no motive was
established, no injuries on vital parts of the deceased were noted,
and above all medical evidence did not corroborate with the alleged
ocular evidence. The High Court has also failed to take note of the
fact that the trial Court has not committed any legal error in
appreciating the ocular and medical evidence to reach at the
conclusion that the accused are innocent. The law is well settled by
this Court with regard to fresh appreciation of evidence in an appeal
against acquittal that even if on the basis of evidence, there is a
possibility of taking a different view than that of the trial Court, the
appellate Court should refrain from disturbing the findings and
conclusion recorded by the lower court. In view of the settled law,
the High Court ought not have interfered with the order of acquittal
passed by the trial Court. But by setting aside the order of acquittal
13
passed by the trial Court, the High Court has committed a gross
illegality by convicted the appellants—accused thereby causing
miscarriage of justice which invites interference of this Court. In
support of their arguments learned counsel appearing for the
accused—appellants relied on the judgments of this Court in
Mahavir Singh vs. State of Madhya Pradesh , (2016) 10 SCC 220,
L.L. Kale Vs. State of Maharashtra & Ors. (2000) 1 SCC 295,
Vs. (2010) 15 SCC 407
Joginder Singh & Anr. State of Haryana
and Nankaunoo Vs. State of U.P. (2016) 3 SCC 317.
12. On the other hand, learned counsel appearing for the
State—Mr. Nishant Ramakantrao Katneshwarkar, supported the
impugned judgment and submitted that the learned trial Judge
disbelieved the evidence of prosecution witnesses for no valid and
reasonable cause. The minor discrepancies in the depositions have
been given undue importance to pass the acquittal order against
the accused, who in a brutal manner dragged the deceased to the
fields and assaulted him with sticks, axe and sword. PW1—Chanda,
wife of the deceased, tried her best to save her husband praying at
14
the accused to show mercy, but all the accused in pursuance of
their common object, attacked the deceased indiscriminately
leading to his death. The High Court has correctly assessed the
facts and circumstances of the case and there was no legal error in
the impugned order seeking indulgence of this Court.
13. We have given our consideration to the material placed
before us and the arguments advanced by the learned counsel on
either side.
14. As the trial court and High Court, having appreciated the
evidence on record, has come to diametrically opposite conclusions,
mandating herein to observe certain witness statements which may
have an important bearing in this case. In the processes of
appreciating the evidence at the appellate stage, we need to keep in
mind the views of this court as expressed in Tota Singh and Anr.
v. , 1987 CriLJ 974
State of Punjab
"The High Court has not found in its judgment that
the reasons given by the learned Sessions Judge for
discarding the testimony of PW2 and PW6 were either
15
unreasonable or perverse. What the High Court has
done is to make an independent reappraisal of the
evidence on its own and to set aside the acquittal
merely on the ground that as a result of such re
appreciation, the High Court was inclined to reach a
conclusion different from the one recorded by the
learned Sessions Judge. This Court has repeatedly
pointed out that the mere fact that the Appellate
Court is inclined on a reappreciation of the
evidence to reach a conclusion which is at
variance with the one recorded in the order of
acquittal passed by the Court below will not
constitute a valid and sufficient ground for
setting aside the acquittal. The jurisdiction of the
Appellate Court in dealing with an appeal against an
order of acquittal is circumscribed by the limitation
that no interference is to be made with the order
of acquittal unless the approach made by the
lower Court to the consideration of the evidence
in the case is vitiated by some manifest illegality
or the conclusion recorded by the Court below is
such which could not have been possibly arrived
at by any court acting reasonably and judiciously
and is, therefore, liable to be characterised as
perverse. Where two views are possible on an
appraisal of the evidence adduced in the case and the
court below has taken a view which is plausible one,
the Appellate Court cannot legally interfere with an
order of acquittal even if it is of the opinion that the
view taken by the Court below on its consideration of
the evidence is erroneous."
16
15. In Ramesh Babulal Doshi v. State of Gujarat , 1996
CriLJ 2867, this Court observed:
“This Court has repeatedly laid down that the mere
fact that a view other than the one taken by the trial
Court can be legitimately arrived at by the appellate
Court on reappraisal of the evidence cannot constitute
a valid and sufficient ground to interfere with an order
of acquittal unless it comes to the conclusion that the
entire approach of the trial Court in dealing with the
evidence was patently illegal or the conclusions
arrived at by it were wholly untenable. While sitting in
judgment over an acquittal the appellate Court is first
required to seek an answer to the question whether
the findings of the trial Court are palpably wrong,
manifestly erroneous or demonstrably unsustainable.
If the appellate court answers the above question in
the negative the order of acquittal is not to be
disturbed.”
16 . Keeping the aforesaid observations in mind, we may note
some statements of the witnesses, who have deposed before the trial
court concerning the incident. PW1 [ wife of the deceased ], has
deposed that she came to know about the scuffle, from her
husband, which took place between her deceased husband and
accused no. 4 prior to the occurrence of the incident. She further
stated that while she was cooking the dinner for her husband,
17
accused no. 4, 11, 12, 13, 14, 15 and absconding accused (Raju)
entered her house. The accused dragged her husband outside onto
the courtyard. She states that she saw accused no. 11 was armed
with an axe, accused no. 13 was armed with a sword and accused
no. 16 was holding an iron pipe. She further states that rest of the
accused were armed with sticks and in total there were 15
assailants. Her husband was dragged to the courtyard of Vinayak
Bhalekar, whose house is said to be after three to four houses. At
that spot, they again gave some beating to the deceased. PW1
states that she was continuously requesting the assailants to spare
the life of her husband. At this instant, accused no. 11 is said to
have threatened PW1 so that she may not witness the incident.
Accordingly, she ran to the cattle shed of one Sudha Bhalekar, who
was attacked by accused no. 14 in the meantime, and remained
hidden for about two hours out of fear. Thereafter, PW1 went to the
house of Harshwardhan Balekar, who first accompanied her to the
district headquarters at Amravati, wherein she informed the family
of the deceased (parentsinlaw and the brotherinlaw) and
thereafter went to the Amravati police station. As they were advised
18
to register the case in Nandgaon Police Station, they came back to
Nandgaon police station to register the complaint.
During the crossexamination she avers that PW3, 4 and
17.
5 were closely related to her and the accused were also related inter
. Concerning the relationship between the accused no. 4 and the
se
deceased, she states that the relationship between them were
cordial. Lastly, she could not assign any reason as to why the
earlier scuffle between her deceased husband and accused no. 4
was not written in the FIR registered by her.
18. PW2 avers that on the day of the incident, while he was
watching television from inside the house, he heard some
commotion taking place outside his house. When he went outside
the house, he saw that the accused were beating the deceased with
weapons such as axe, pipe, swords and stick. he states that he saw
accused no. 11 armed with an axe, accused no. 4 armed with a
bamboo stick, accused no. 13 armed with a sword and accused no.
16 was holding an iron pipe. As he was afraid, he did not go behind
19
the assailants. During the cross examination, he avers that there
might have been more than twenty persons.
PW3, states that he saw the accused giving severe
19.
beating to the deceased with sticks, swords, iron pipes and axe. He
states that he saw accused no. 16, 15 and 11 dragging the deceased
towards the school and he did not follow the accused out of the fear
and on the following day, deceased body was found in the field of
one Yeshwant Sawai. During the cross examination, he states that
the deceased died in front of his house, due to severe beating given
by the accused. Moreover, he admits that the deceased is his
relative.
20. It may be noted that PW4 and 5 have deposed to the
same effect, concerning the incident. They have further admitted
that they were related to the deceased. At this point it may be
relevant to notice the witness statement of the doctor, who
conducted the postmortem [PW7]. Concerning the stick blows on
the body of the deceased, she notes as under
20
‘…Contusions and lacerations are possible in case
a person is beaten by sticks or from pipe. I did not
find any lacerated wound or contusion sustained by
the deceased and as such I did not mention such
injury in P.M. Note….’
Concerning the cause of death, PW7 states as under
‘The injury sternum as described in Column No.
20 is possible in case a person fall down on hard
surface. Because of loss of blood due to injury the
deceased went into the shock and which resulted in
his death. The deceased died due to loss of blood.
Because of loss of blood the heart chambers were
found empty and other organs were found pale.
Vital organs were intact. I did not find any injury
to any vital part of the body. Loss of blood is
gradually loss of blood and it may take some
time. In case of timely medical treatment person
may survive . Hands and legs are nonvital part of
the body. Because of the amputation of hand and
because of amputation of leg or both person may
not die. It is not always possible that a person may
die because of incised wounds No. 1, 2 & 5 as
described in Coloum No. 17’ [ sic. ]
[emphasis supplied]
21. PW10 was stationed as the head constable of Nandgaon
police station at the relevant time when PW1 registered the
21
complaint. It may be beneficial for the discussion to observe the
cross examination of the aforesaid witness, as under
…3. The complainant PW1Chanda did not state
in her complaint the fact that Accused No.4
addressed abuses to her husband when her
husband demanded money to Accused No.4. The
PW1Chanda did not state in her complaint the fact
that Accused No.13 and Accused No.15 arrived and
they entered into her house. PW1Chanda did not
state in her complaint the fact that she requested
the assailants not to beat her husband. The PW1
Chanda did not state in her report Exh. 55 the fact
that Accused No.11 was armed with an axe, PW1
Chanda did not state in her report Exh. 55 the fact
that the Accused No.13 was holding sword. The
PW1Chanda did not state in her report Exh.55 the
fact that Accused No. 15 was holding a pipe. The
PW1Chanda did not state in her report Exh.55 the
fact that the rest of the AssailantsAccused were
holding sticks in their hands. PW1Chanda did not
state in her complaint Exh.55 the fact that the
AccusedAssailants had beaten to her husband
shamrao in the courtyard….
From the aforesaid witness, it is clear that the FIR did not consist of
all those facts which were subsequently deposed by PW1 and
others before the court.
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22. It may not be out of context to mention that the formal
witnesses concerning seizure such as PW11 and 13 have not
supported the case of prosecution in entirety.
23. Before we proceed to analysis of the case, we must first
focus on the aspect concerning the standard the High Court has to
apply, while hearing a case against an acquittal order of the trial
court. In the case on hand, the trial court, followed by a fullfledged
trial, comes to the conclusion and by cogent reasoning acquits the
accused. In such a case the appellate Court is further burdened
with the task of reaffirming the innocence of the accused. In such
cases, the appellate Court is expected to be very cautious and its
interference with the order of acquittal is called for only when there
are compelling reasons and substantial grounds. In other words,
the High Court has full power to review the evidence upon which an
order of acquittal is founded, yet the presumption of innocence of
the accused being further reinforced by his acquittal by the trial
Court, the findings of that Court which had the advantage of seeing
the witnesses and hearing their evidence can be reversed only for
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very substantial and compelling reasons [ refer Surajpal Singh &
v. 1952 CriLJ 331].
Ors. The State,
24. From the facts and circumstances of this case, we are
called upon to examine, whether the High Court was justified in
upsetting the findings of the trial court and whether there were
compelling reasons for the High Court to set aside the order of
acquittal and convict the accused appellant of culpable homicide
amounting to murder?
25. We may note that out of eleven circumstances which the
trial court has relied upon to find that the prosecution case was not
proved beyond reasonable doubt, we are of the opinion that we need
to concentrate on four of those circumstance, which may be
sufficient, to portray that the case at hand is not proved beyond
reasonable doubt.
26. There is no dispute as to the fact that the prosecution
relies on the circumstantial evidence to prove the case. It may be
24
noted that, the value of circumstantial evidence rests in its
accumulative effect, that is to say, while a single piece of
circumstantial evidence may only slightly increase the likelihood
that the accused is guilty, several such evidences taken together
may carry enough probative force to justify the conviction, if such
circumstantial evidence forms an unbroken chain of events
resulting in only one hypothesis so canvassed.
27. Coming back to the appreciation of the evidence at hand,
at the outset, our attention is drawn to the fact that the witnesses
were interrelated, and this court should be cautious in accepting
their statements. It would be beneficial to recapitulate the law
concerning the appreciation of evidence of related witness. In Dalip
, (1954) 1 SCR 145, J. Vivian Bose
Singh & Ors. v. State of Punjab
for the bench observed the law as under
A witness is normally to be considered independent
unless he or she springs from sources which are
likely to be tainted and that usually means unless
the witness has cause, such as enmity against the
accused, to wish to implicate him falsely.
25
Ordinarily, a close relative would be the last to
screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high
and there is personal cause for enmity, that here is
a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty,
but foundation must be laid for such a criticism
and the mere fact of relationship far from being a
foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping
generalisation. Each case must be judged on its
own facts. Our observations are only made to
combat what is so often put forward in cases before
us as a general rule of prudence. There is no such
general rule. Each case must be limited to and be
governed by its own facts.
28 . In Masalti v. State of U.P. , (1964) 8 SCR 133, a five
Judge Bench of this Court has categorically observed as under
There is no doubt that when a criminal Court
has to appreciate evidence given by witnesses
who are partisan or interested, it has to be very
careful in weighing such evidence. Whether or
not there are discrepancies in the evidence;
whether or not the evidence strikes the Court
as genuine; whether or not the story disclosed
by the evidence is probable, are all matters
which must be taken into account.
But it would, we think, be unreasonable to
contend that evidence given by witnesses
should be discarded only on the ground that it
is evidence of partisan or interested witnesses.
Often enough, where factions prevail in villages
and murders are committed as a result of
26
enmity between such factions, criminal Courts
have to deal with evidence of a partisan type.
The mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice.
No hard and fast rule can be laid down as to how
much evidence should be appreciated. Judicial
approach has to be cautious in dealing with such
evidence; but the plea that such evidence should
be rejected because it is partisan cannot be
accepted as correct.
( emphasis supplied )
In , (1964) 3
29. Darya Singh and Ors. v. State of Punjab
SCR 397, this Court held that evidence of an eye witness who is a
near relative of the victim, should be closely scrutinized but no
corroboration is necessary for acceptance of his evidence. In
, 2005 CriLJ 2199,
Harbans Kaur & Anr. v. State of Haryana
this Court observed that
There is no proposition in law that relatives are
to be treated as untruthful witnesses. On the
contrary, reason has to be shown when a plea
of partiality is raised to show that the
witnesses had reason to shield actual culprit
and falsely implicate the accused.
27
30. The last case we need to concern ourselves is the case of
, (2007) 14 SCC 150, wherein
Namdeo v. State of Maharashtra
this Court after observing previous precedents has summarized the
law in the following manner
It is clear that a close relative cannot be
characterised as an 'interested' witness. He is a
'natural' witness. His evidence, however, must
be scrutinized carefully. If on such scrutiny,
his evidence is found to be intrinsically
reliable, inherently probable and wholly
trustworthy conviction can be based on the
'sole' testimony of such witness. Close
relationship of witness with the deceased or
victim is no ground to reject his evidence. On
the contrary, close relative of the deceased
would normally be most reluctant to spare the
real culprit and falsely implicate an innocent
one.
31 . From the study of the aforesaid precedents of this court,
we may note that whoever has been a witness before the court of
law, having a strong interest in result, if allowed to be weighed in
the same scales with those who do not have any interest in the
result, would be to open the doors of the court for perverted truth.
This sound rule which remain the bulwark of this system, and
which determines the value of evidence derived from such sources,
28
needs to be cautiously and carefully observed and enforced. There
is no dispute about the fact that the interest of the witness must
affect his testimony is a universal truth. Moreover, under the
influence of bias, a man may not be in a position to judge correctly,
even if they earnestly desire to do so. Similarly, he may not be in a
position to provide evidence in an impartial manner, when it
involves his interest. Under such influences, man will, even though
not consciously, suppress some facts, soften or modify others, and
provide favorable color. These are most controlling considerations in
respect to the credibility of human testimony, and should never to
be overlooked in applying the rules of evidence and determining its
weight in the scale of truth under the facts and circumstances of
each case.
32. The prosecution has heavily relied on the statement of
PW1 that the accused—appellants assaulted her husband with
deadly weapons on his hands and legs while dragging him for about
2 kms from his house to the fields, which led to his death. The
weapons used in the crime were stated to be sword, sticks, axe and
29
pipe. Admittedly, there were no bloodstains found on any of the
weapons allegedly recovered from the accused. The allegation
particularly levelled was that the accused carried the assault on the
deceased at three places i.e., in front of the house of the deceased
and near the house of PW3—Vinayak Bhalekar and at the fields of
Yeshwant Thawale. However, in their depositions PWs 2, 4 and 5
did not mention about such assault on the deceased in front of
Vinayak Bhalekar house. It appears from the material that there are
no eyewitness who had seen the accused attacking the deceased in
the fields of Yashwant Thawale. The statements of PW3—Vinayak
Bhalekar also appears to be not consistent throughout. At one point
of time, he deposed that the deceased had died in front of his
house. Altogether a different statement was given to the
investigating authorities and in the Court. Similar is the case of
PW4—Sudha, who has made improvements as regards to the
assault on the deceased. Also there were varying statements by the
prosecution witnesses as regards PW4—Sudha on the aspect of
receiving the blow.
30
33. The deposition of PW4—Sudha Bhalekar shows that she
had seen the involvement of A1, A4, A11, A13, A14 and A16 in
the crime. Though she stated that she could recognize the
assailants by their face as she does not know their names, yet test
identification parade was not conducted which is fatal to the case of
prosecution. In their depositions PWs 2, 3 and 5 gave contradictory
statements as to the involvement of number of accused persons in
the crime and also about noticing the accused who dragged the
deceased while assaulting him and dragging towards school
whereas PWs 1 and 4 were silent on this aspect. There were also
contradictory statements by prosecution witnesses as regards the
availability of light at the time of occurrence. According to PW3—
Vinayak, husband of PW4—Sudha, whose house is the last in the
mohalla and situated at a distance of four other houses from the
house of deceased, the incident took place at 9 pm. The way behind
his house goes to the school and there is a tamarind tree in front of
his house and the house of Shamrao is not visible by sitting in the
courtyard of his house. In his crossexamination, he denied to have
deposed to police that the house of deceased Shamrao is situated in
31
the rear side of his house. He further stated, there is ‘L’ type turn
from his house to the house of deceased which is not visible from
his courtyard. According to him, deceased Shamrao died in front of
his house and on the next day, he saw the dead body of Shamrao in
the field.
34. Now coming to the facts of the case, PW1 (wife of the
deceased) has not witnessed the chopping of the hand, which
resulted in the ultimate death of her husband. It is prudent for this
Court to not believe in absence of cogent evidence concerning the
culpability of the accused herein, as her evidence is ridden with
apparent internal contradictions and inconsistencies.
35. Due to the nature and quality of evidence involved in this
case, the prosecution relies on the motive to strengthen the case by
bringing in the earlier scuffle, wherein the deceased had slapped
the Accused no. 4. This Court has on number of occasions has
expressed a general disdain towards motive in direct evidence
1
cases . On the other hand this Court has never approved the
1 Hari Shanker Vs. State of U.P. , (1996) 9 SCC 40.
32
2
extreme position as portrayed in some English cases which is best
explained by Jerome Hall, when he stated ‘[h]ardly any part of penal
3
. We may
law is more definitely settled than that motive is irrelevant’
note that the law in India is now well settled that in a case of
4
circumstantial evidence, motive has a role to play , but to dislodge
prosecution’s case solely based on lack of motive would amount to
5
giving credit to this factor, where it is not due. The motive behind
the accused assaulting the deceased was said to be the quarrel
during which the deceased had slapped Accused No. 4 near a
grocery shop in the village. Incidentally, prosecution could also not
prove the same by examining the independent witness present at
the grocery shop, though as many as 19 witnesses were examined
by the prosecution. PW10—Shrikrishna, Head Constable of the PS
Nandgaon Peth who reduced the oral complaint of PW1 into writing,
categorically stated that PW1 had also not mentioned about
previous quarrel at the time of lodging of complaint. There were,
undoubtedly lot of improvements in the statement of PW1 from the
| (2010) 12 SCC 91. |
|---|
33
stage of complaint to her examinationinchief. Moreover, the
evidence of PW1 concerning the quarrel is barred for being hearsay
evidence.
Alternatively, the prosecution has alleged that motive for
36.
the crime was that the accused party belongs to nonSC/ST
community whereas the victim was belonging to SC community.
But, in the opinion of the trial Court, the prosecution could not
prove that the deceased belong to Scheduled Caste and accused
were from nonScheduled Caste or Tribe and the prosecution has
failed to prove any charge against the accused including the charge
under Section 3(i)(x) and 2(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act. As against that
charge, the High Court also confirmed the view taken by the trial
Court, which in other words proved the prosecution version to be
wrong.
37. Now we need to concentrate on the other aspects of the
case such as the contradictions in the evidence of prosecution
34
witnesses as to the number of accused persons involved in the
alleged crime and also in respect of their identification thereby the
very purpose of the prosecution in proving the common object of
unlawful assembly gets defeated to attract the provisions of Section
149, IPC. An accused is, of course, vicariously guilty of the offence
even if he is not directly indulged in the commission of offence but
committed by other accused, in case he is proved to be a member of
unlawful assembly sharing its common object. It is evident that as
per PW1 (wife of the deceased)—complainant, in the FIR (Ext. 55)
the number of persons mentioned by her, who have entered into
their house was four, while about 20 to 25 persons were assembled
outside the house and all of them assaulted the deceased. However,
in the examinationinchief she deposed that there were in all 15
assailants who attacked her husband. Though she failed to name
the assailants in her deposition she made out a point that she knew
all the assailants. According to PW10—Shrikrishna, the author of
complaint, PW1 did not state about entry of accused Nos. 13 and 15
into her house. There was also no mention by her at the time of
lodging of FIR about carrying an axe by A11, a sword by A13, a
35
pipe by A15 and sticks by other accused. Going by the material on
record, it can be said that there was no satisfactory explanation on
the part of PW1 for omissions in the FIR and improvements before
the Court.
38. PW11—Sagar, a panch witness of seizure of bloodstained
clothes of the accused Nos. 1 to 7, did not support the prosecution
case. According to him, police called him to the police station and
obtained his signature. Similarly, the seizure is doubtful in the case
of clothes pertaining to accused No. 11 to which PW13—Gunwant
was witness who stated that he had seen those clothes for the first
time in the village panchayat office and he had signed the paper at
the instance of police without knowing the correctness of its
contents. Going by the material on record, the correctness of
seizure of clothes of other accused persons also do not inspire
confidence.
39. It is also clear from the record that PW6—Sukhdev who
proved the recovery of weapons at the instance of accused—
36
appellants, could not point out his signature on the respective
disclosure statements and seizure panchnamas. He also admitted
that Ext.72 (memorandum) and Ext. 73 (seizure panchnama) does
not bear his signature. PW9—Ananda Ramteke deposed that after
recovering sticks from the houses of accused Nos. 1 to 7, they
returned to the village panchayat office where almost all the papers
were scribed. It is also important to note that based on the
Chemical Analysis report, those sticks cannot be considered to be
incriminating articles as there were no blood stains on those sticks.
In the same way, the sword and axe allegedly recovered from
Accused Nos. 13 and 11 respectively also do not have bloodstains.
In these circumstances, the prosecution cannot be said to have
proved the fact that the palm of the deceased has been amputated
by the accused with those weapons.
40. In the opinion of Dr. Pushpa Sadhawani—PW7, who
conducted postmortem on the body of the deceased, the cause of
the death was due to heavy loss of blood owing to the amputation of
his hand. However, his vital organs were found to be normal and
37
there was no injury to the vital organs. There were incised wounds
over dorsal aspect of right amputated wrist and forearm and lower
part of the leg. PW7 has specifically mentioned that there was no
laceration or contusion sustained by the deceased and opined that
had there been timely medical treatment, the deceased would have
survived. At the same time she made it clear that in case a person
is beaten up with sticks and iron pipe, as alleged by the prosecution
in the present case, contusions and lacerations are possible. In her
crossexamination, the Doctor also revealed that because of
amputation of hand and leg or both, a person may not die. Thus, in
totality, the medical evidence is not corroborating with the
prosecution’s case.
41. It is quite surprising that PW1—Chanda who witnessed
the horrific assault on her husband, remained hidden in the cattle
shed for about two hours and then went to the house of
Harshwardhan Bhalekar to whom she had narrated the incident.
After that, both of them, without searching for the deceased went to
the house of PW1’s inlaws at Amravati. Then they visited the office
38
of Superintendent of Police and then they went to the police station
to lodge the complaint. Ironically, the said Harshwardhan Bhalekar
who could have been a prime witness has not been examined. The
conduct of PW1 and nonexamination of such an important witness
Harshwardhan Bhalekar, weakens the prosecution case. At the
same time, there was no proper explanation forthcoming for what
purpose they visited the office of Superintendent of Police, instead
of searching for the deceased or going to police station to lodge
complaint. As per the evidence of PWs 1, 2 and 3 Laxman Bhalekar,
Bhaurao, Arun Bhalekar and Namdeo Bhalekar are neighbours of
the deceased living in the same vicinity, but none of them was
examined. Another laches in the prosecution case is that in the FIR
it was mentioned that one Dhanjay Sontakke and Janardhan
Alekar had also seen the accused assaulting the deceased, but they
too were not examined. Similarly, one Anant Bhurbhure who first
found the dead body of the deceased in the fields of Yashwantrao,
was also not examined. It is clear that all those persons, especially
neighbours of the deceased, who witnessed the important
circumstances and who could be vital independent witnesses have
39
not been examined by the prosecution. There is no convincing
explanation forthcoming from the prosecution side.
Another facet that creates doubt on the prosecution story
42.
is that PW5—Maroti, the real brother of PW2—Narendra and
nephew of PW4—Sudha, in his crossexamination (Ext.70) differed
with the statement recorded by police and marked ‘A’ that he and
his brother (PW2) saw the deceased lying in front of the door.
According to him he did not say that fact, police arrived in the
village next day morning at 8 am, and he went to the field along
with police at 10 am. PW3—Vinayak husband of PW4—Sudha,
made a statement that he had seen the dead body in the field of
Yashwant Thawale. PW2—Narendra has also stated that at about
9.30 am on 20.6.1995, he along with other villagers found the dead
body of the deceased in the said field. We notice that in the midst of
several contradictory statements among the prosecution witnesses,
there is no proper explanation on record for PW1 and police
searching for the deceased at the wells and nullahs of the village,
instead of searching around the school, as per the prosecution story
40
PWs 2, 3 and 5 were fully aware that the deceased was dragged
towards school. Moreover, looking at the ambiguous narration of
sequences described by the witnesses, the chain of events in the
case cannot be said to have been properly brought on record by the
prosecution. It is always the duty of the Court to separate chaff
from the husk and to dredge the truth from the pandemonium of
Statements. It is but natural for human beings to state variant
statements due to time gap but if such statements go to defeat the
core of the prosecution then such contradictions are material and
the Court has to be mindful of such statements [ See :
Tahsildar
Singh v. State of U.P. , AIR 1959 SC 1012].
We have also found from the impugned judgment that
43.
the High Court has misconstrued certain aspects of the case.
According to PW2—Narendra the incident occurred at about 9 p.m.
on 19.6.1995. In the FIR also the time was mentioned as 9 p.m. But
the High Court in its judgment observed “insofar as the
submissions regarding the availability of light is concerned, we find
that the incident took place at about 7.30 p.m. in the village in the
41
month of June and looking to the availability of light in the month
of June in Vidarbha region, we have no hesitation in holding that
the eyewitnesses had sufficient light to identify the accused
persons”. It is clear from the record that the alleged incident has
occurred at 9 p.m. and not at 7.30 p.m. as assumed by the High
Court, and there were also no eyewitnesses to the alleged
amputation of the hand of deceased and causing his death.
44 . At the conclusion of arguments, it is informed at the Bar
that the trial Court had conducted separate trial in respect of Raju
—Accused No. 16, who was earlier absconding, and acquitted him
of all the charges and the State has not preferred any appeal
against his acquittal. We have also noticed that PWs 1, 2 and 3
have given contrary statements at the subsequent trial in Special
(Atrocities) Case No. 12 of 2008 held against Raju—Accused No. 16,
deviating from what they deposed in the present case.
45. Taking note of the foregoing shortcomings and
discrepancies in the prosecution case coupled with the
42
improvements and contradictions in the statements of prosecution
witnesses, it cannot be said that the accused persons had really
formed into an unlawful assembly and carried out an assault on the
deceased that too with a view to kill him, so as to attract the
provisions of criminal law. In the facts and circumstances of the
case, it is abundantly clear that the guilt of the accused persons
was not proved beyond reasonable doubt. We are of the considered
view that the trial Court had dealt with the case in a foolproof
manner by drawing out 11 important circumstances and delivered a
well reasoned judgment thereby acquitting the accused, with which
the High Court ought not to have interfered. In our view, there are
no compelling reasons and substantial grounds for the High Court
to interfere with the order of acquittal passed by the trial Court.
Added to the above, we are informed that the accused have already
undergone about three years' of imprisonment before they were
enlarged on bail.
Keeping in view the substratum of the prosecution case
46.
and the material available on record, we are of the considered
43
opinion that the prosecution has miserably failed to prove the guilt
of accused beyond reasonable doubt. In the aforementioned
circumstances, we allow these appeals, set aside the impugned
order passed by the High Court and restore the judgment and order
passed by the trial Court in respect of the appellants before us.
Resultantly, their bail bonds stand discharged. Pending
applications, if any, shall also stand disposed of.
…………......................J.
(N.V. RAMANA)
..................................J.
(S. ABDUL NAZEER)
NEW DELHI,
APRIL 26, 2018.