1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 633 OF 2009 The State of Maharashtra ) (Through Palghar Railway Police Station) ).. Appellant Versus Sujay Mangesh Poyarekar ) Age 43 years, Occ.: Printing Press ) R/at Poyarekar Bunglow, Parnaka ) Dahanugaon, Taluka : Dahanu ) District : Thane. ).. Respondent Ms. A.A. Pai, Additional Public Prosecutor, for the Appellant. Mr. Sameer Vaidya for the Respondent. CORAM : SWATANTER KUMAR, C.J. AND S.C. DHARMADHIKARI, J. JUDGMENT RESERVED ON : 1ST JULY 2009 JUDGMENT PRONOUNCED ON : 9TH JULY 2009 JUDGMENT (PER SWATANTER KUMAR, C.J.) The State has preferred this Appeal against the judgment and order of acquittal dated 16th January 2007 passed 2 by the IIIrd Ad hoc Additional Sessions Judge, Palghar, District, Thane, acquitting the Respondent of charge of offence punishable under Sections 307, 504 of the Indian Penal Code. 2. Facts of the case are that complainant-Rajan Mukund Patil is the resident of Chinchani, Bhandar Ali, Taluka Dahanu, District Palghar, Maharashtra. He is a practising Advocate at Dahanu Court. According to the prosecution, on 7th June 2003, complainant had gone to Dahanu Court. In the evening, he went to Vangaon by train and therefrom he was to go to his residence at Chinchani. For that purpose, he went to Dahanu Railway Station at about 6.00 p.m. and boarded Firozpur Janata Train. He reached Vangaon at 6.15. p.m. On platform No.2, he saw Deepa Gajanan Patil who was going to Mumbai. The complainant was knowing her. He, therefore, asked her as to where she was going. She told the complainant that she had come to receive her father. Meanwhile, accused Sujay Mangesh Poyarekar-respondent herein alighted from Virar-Surat shuttle. The accused came near the complainant and asked him why he was standing there and started abusing him. The accused also alleged that the complainant was flirting with 3 his wife. So saying, the accused assaulted the complainant with knife in his stomach, on right shoulder, below left armpit and on back-side. The complainant received bleeding injuries. He immediately went to Station Master’s cabin. In the meanwhile, his sister Charushila and one Hitendra came there and took the complainant to the Vangaon Government Hospital. Later on, police went to the hospital and recorded statement of the complainant. 3. On the basis of the statement, initially C.R. No. 0/2003 was registered in Vangaon Police Station. The said complaint was then forwarded to Palghar Railway Police Station where C.R. No. I-9 of 2003 was registered at 23.00 hours vide Station Diary No.42 of 2003 for offences punishable under Sections 307 and 504 of the Indian Penal Code (IPC). The accused was arrested at about 23.45 hours and was released on bail on 12th June 2003. After usual investigation and recording of statement of witnesses, charge-sheet was filed in the Court of Judicial Magistrate First Class, Railway, Virar. 4 4. Since the offence under Section 307 IPC was exclusively triable by a Court of Session, the Judicial Magistrate (F.C.) by an order dated 27th November 2003 committed the case to Sessions Court, Palghar for trial. It was registered as Sessions Case No.143 of 2003. Necessary charge for offence punishable under Sections 307, 504 of the IPC was framed against the accused at Exh. 14 who pleaded not guilty to the charge and claimed to be tried. 5. The prosecution in order to establish the case against the accused, examined 15 witnesses. It mainly relied upon the testimony of PW1-Rajan (complainant) and PW2- Charushila (real sister of complainant). Deposition of PW12-Dr. D’Souza was recorded to prove injuries sustained by the complainant. Though pancha witnesses did not support prosecution case, the panchanama of spot and seizure of clothes were proved by the Investigating Officer-Dattatray Gaikwad (PW13). After the prosecution evidence, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 wherein he admitted his presence on the Railway Platform on the date of occurrence. He, however, 5 denied to have committed any offence. 6. The learned trial Judge vide judgment dated 16th January 2007 acquitted the accused for the offences with which he was charged. According to the learned Judge, the prosecution failed to establish the case against the accused beyond reasonable doubt. The State being aggrieved by the order of acquittal, filed an application, being Criminal Application No. 1390 of 2007 for leave to appeal in this Court. A Division Bench of this Court vide order dated 12th June 2007 rejected the application observing that the judgment of the trial Court could not be said to be perverse and no interference was called for. The said order reads as under :- “Heard the learned APP. The accused has been acquitted by the trial Court for offence under section 307 r/w 504 of the IPC for assaulting the advocate with a knife causing four injuries. None of these were fatal according to the opinion of the Doctor. The cause behind the assault according to the prosecution was that the advocate was teasing the wife of the accused who was working in the Court. The trial Court has appreciated the evidence properly and has also taken into consideration the number of complaints filed against the said advocate complainant including the apology tendered by the complainant to the President, 6 Bar Association, Dahanu and the action taken by the Bard Council. The trial Court found inherent improbabilities in the case of the complainant and therefore acquitted the accused. The judgment of the trial Court cannot be said to be perverse. No interference is called for. Application rejected.” 7. This order was challenged before the Hon’ble the Supreme Court in Criminal Appeal No. 1492 of 2008 arising out of Special Leave Petition (CRL) No. 7251 of 2007. Vide judgment dated 19th September 2008, the Hon’ble Supreme Court allowed the Appeal and remanded the matter to this Court for fresh disposal in accordance with law. This is how the present Appeal comes up for hearing before this Court. Keeping in mind the judgment of the Supreme Court, we had granted Leave to Appeal and the Appeal was admitted for hearing. 8. The learned Counsel appearing for the State has referred to the evidence on record and has contended that the presence of the accused at the site of offence has been admitted by the accused and the learned trial Court has fallen in error of law as well as in appreciation of the evidence in acquitting the accused. To substantiate this argument, the learned Counsel has 7 referred to the evidence of the Doctor, Melroy D’Souza (PW12), Railway Station Superintendent, Kumar Sharma (PW9) and the Investigating Officer, Dattatray Gaikwad (PW13). 9. On the contrary, it is contended on behalf of the accused that no direct evidence has been produced by the prosecution to prove the charge beyond reasonable doubt. No independent eye-witness had been produced despite the fact that the occurrence took place allegedly at the crowded platform and the accused was first to go to the Station Master (PW9) and complained about the incident. The case being of circumstantial evidence the prosecution has failed to prove the complete chain of the events pointing towards the guilt of the accused in commission of the crime. According to the learned Counsel, this Court should not interfere with the order of acquittal merely because another view was possible and could have been taken by the Court. 10. Another fact that needs to be noticed by the Court is that against the judgment of acquittal, the complaint had also filed a Revision Application in this Court being Criminal 8 Revision Application No. 166 of 2007. This came to be dismissed vide order dated 18th July, 2007 by the learned Single Judge. This order has attained finality. Of course, this by itself is not sufficient ground to acquit the accused, but it is a relevant piece of fact which needs to be kept in mind by the Court while dealing with the present Appeal. 11. Before we discuss evidence on record, it is appropriate to refer to the principles settled by the Hon’ble Supreme Court regarding interference by Appellate Court in case of appeal against acquittal. The Supreme Court in the case of Ghurey Lal vs State of U.P., (2008) 10 SCC 450, observed as under : “72. The following principles emerge from the cases above : 1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law. 9 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong. 74. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court’s acquittal : 1. The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court’s decision. “Very substantial and compelling reasons” exist when : i) The trial court’s conclusion with regard to the facts is palpably wrong; ii) The trial court’s decision was based on an erroneous view of law; iii) The trial court’s judgment is likely to result in “grave miscarriage of justice”; 10 iv) The entire approach of the trial court in dealing with the evidence was patently illegal; v) The trial court’s judgment was manifestly unjust and unreasonable; vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc. vii) This list is intended to be illustrative, not exhaustive. 2. The Appellate Court must always give proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached – one that leads to acquittal, the other to conviction – the High Courts/appellate courts must rule in favour of the accused.” 12. Let us examine the evidence on record in the light of the fact that the accused was present at the place of occurrence and there was a scuffle between the accused and the complainant. Both these facts are undisputed from the evidence of the prosecution as well as statement of the accused recorded under Section 313 of the Code of Criminal Procedure. Question No.18 put to the accused reads as under :- 11 “Q.18. P.W. 9 Nareshkumar Rupdev Sharma deposed that on 07.06.2003, he was on duty as Station Superintendent at Vangaon Railway Station since 2.00 p.m. to 10 p.m. He further deposed that at about 6.15 p.m you accused went running in his cabin and told him that one person is flirting with your wife and that person had also assaulted you. What you have to say ? Ans. It is true.” 13. The injuries on the person of the accused as well as the injured complainant have been proved by the Doctor PW11 and PW12 Mr. Melroy D’souza. Dr.Padmaja Doijode (PW11) has stated:- “.... I examined said Sujay at 1 a.m. On examination, I found injuries. One Abrasion left shoulder anterior aspect, reddish in colour, 1 c.m. X 0.25 cms. Nature of injury is simple caused by hard and blunt object, age of injury within 24 hrs. One abrasion left shoulder anterior aspect, just below 1st injury, reddish, 1 cm x 0.25 c.m simple in nature caused by hard and blunt object, age within 24 hrs. One abrasion right upper limb hand, palmer aspect base of index finger, reddish 2 cm x 0.25 cms. Simple in nature caused by hard and blunt object, age within 24 hrs.......” 12 Whereas Dr.Melroy D’souza (PW12) has noticed following injuries on the person of the complainant :- “1) C.L.W. right shoulder 3 x 1 x 1 cm. Anterior aspect, caused by sharp objection, age within 24 hrs nature simple. 2) C.L.W. on 1 x 3 x 1 x 6 cms. In opigastric (upper part of abdomen) caused by sharp object grievous injury. 3) C.L.W. 1 x 0.5 x 0.5 cm. Left axmilla i.e. arm-pit caused by sharp object, injury is simple. 4) C.L.W. 5 x 1 x 1 cm. Left flank (left side of abdomen) caused by sharp object grievous. 14. From the evidence aforementioned, it is clear that both the Complainant and the Accused were present on the railway platform. It is also clear that the scuffle took place between the parties and background to the scuffle was that the complainant advocate had been teasing and flirting with the wife of the accused even at the railway platform. According to the accused, injuries on his body as recorded in the medical evidence were inflicted by the Complainant and after suffering bleeding injuries, he had left the railway platform and gone to 13 the room of the Station Superintendent. The Station Superintendent was examined as PW 9 who in his statement Exhibit-28 stated that one man had come to him running and informed him that another man was teasing his wife and was trying to outrage her modesty and when he went to save his wife, the said man also had beaten him and after saying this, the man went away. The Station Superintendent told him that he will inform the Police and ask the Police to come. After some time, another man came to this witness i.e. PW 9- Nareshkumar. He had bleeding injuries and the injured complainant told him that he should ring up to his house and he gave him the phone number. Two to three ladies came to him (PW-9) and one of them was the sister of the injured man. Thereafter, people took the injured to the hospital. This witness was not subjected to any cross-examination by any party and in his re-examination he identified the accused as the person who had come to him first. Nareshkumar (PW 9) was the first independent official person at the railway station to whom the complainant and even his sister had met after the incident. There is no explanation from the prosecution as to why the complainant or his sister did not intimate Nareshkumar (PW 9) 14 that the accused was the person who had caused injuries on the person of the complainant. It is important to note that as per the prosecution case complainant was well acquainted with accused since prior to the incident. 15. The sister of the Complainant was examined as PW 2 and she has stated that at around 6.30 p.m. after alighting at the Vangaon Railway Station, she was going to the rickshaw stand and one person named Jitendra told her that her brother was at the Station Master’s cabin and he was injured. So she came there and took her brother to the hospital. PW 2 does not state that she was even told by Jitendra that the accused had caused injuries to her brother. 16. Gajanan Divekar (PW-3) is another important witness of the prosecution who is a Porter at Vangaon Railway Station and was there on duty at the relevant date and time. According to PW 3, there was a scuffle between the woman and the advocate Shri Rajan Patil and according to him nothing else happened in his presence. He also denied the suggestion that the advocate was assaulted by the accused in his presence. This 15 witness was thereupon declared hostile and cross-examined by the public prosecutor. He completely denied the statement made under Section 161 of the Code of Criminal Procedure to the Investigating Officer. In his cross-examination by the accused, he stated that one woman was lying down and advocate was sitting on her person and passengers were trying to rescue the said woman. As the advocate was not leaving the woman, the passengers had beaten the advocate. The cumulative effect of the statement of these witnesses definitely creates uncertainty and doubts in the story of the prosecution. There is no explanation on behalf of the prosecution as to why a single witness much less an eye witness was not produced while admittedly the incident occurred at a platform which was busy with the passengers and where even construction work was going on. It is obligatory on the part of the prosecution, when it claims conviction on the basis of circumstantial evidence, to explain the missing links which, in our opinion, the prosecution has failed. It was obligatory upon the prosecution to prove that the injuries on the person of the complainant were actually caused by the accused and this fact has to be established beyond any reasonable doubt. According to PW 9, the first person who 16 approached him was the accused and thereafter came the injured complainant. If the accused was assaulting party, as a normal behaviour, he would have been caught hold of by the crowd and handed over to the authorities but nothing of this kind happened which is strange. On the contrary, the accused first complained to the Station Superintendent about the incident. Another piece of evidence and the occurrence which creates a doubt in the mind of the Court is that if the Complainant had suffered such serious injuries and was profusely bleeding, how could nobody carry him to cabin of the Station Master and in that serious condition how he could climb the staircases, cross the platform and then walk to the office of the Station Master. Not that it was not absolutely possible but keeping in view the seriousness of the alleged injuries, it appears to be doubtful in the normal circumstances. All this is further supported by the fact that neither the Complainant nor any of the prosecution witnesses either informed PW 9 or even the sister of the Complainant that the injuries were caused by any weapon or otherwise by the accused. It is too difficult for the Court to convict a person on the basis of mere inferences. The burden of proof to establish its case is strictly upon the 17 prosecution and for failure of prosecution, the accused is entitled to benefit of doubt. 17. The Trial Court has properly appreciated the evidence and has summed up its conclusions as follows:- “29. After taking into consideration the over all evidence of the prosecution and considering the defence of the accused, I am of the opinion that the defence counsel successfully established the enmity between the complainant and the accused and on the day of incident i.e. on 7.6.2003 around of 6.15 p.m. there was scuffle between the complainant and the accused on count of wife of accused. However the prosecution failed to prove beyond all reasonable doubts that the accused stabbed him by means of knife on his stomach as well as shoulder and below arm-pit etc. 30. It is worthy to note here that though the spot is a crowded place and there were so many commuters as well as railway staff members and other vendors, the prosecution could not examine a single witness who stated on oath that he had seen the accused while stabbing the complainant by means of knife. On the other hand the testimony of PW-3 Gajanan Divekar reveals that there was scuffle between one woman and Advocate Rajan Patil which supports the defence case. Similarly the testimony of PW-9 Nareshkumar Sharma, the Station Master of Vangaon Railway Station supports the defence case. It came in his version that on 7.6.2003 18 around 6.15 p.m. one man came running to his cabin and said man told him that one man was teasing his wife and outraging her modesty and when he went to save his wife, the said man also bet him by means of briefcase. So also it reveals from the testimony of PW-11 Dr. Padmaja Doijode who examined accused Sujay Mangesh Poyarekar that on 8.6.2003 she had examined one Sujay Mangesh Poyarekar and she found three injuries as mentioned in Exh. 32. Perusal of Exh.32 reveals that Sujay Mangesh Poyarekar was examined on 8.6.2003 around 1.00 a.m. by Medical Officer Rural Hospital, Palghar and the said Medical Officer observed three abrasion injuries on left shoulder and on right upper limb. It is further mentioned in the said injury certificate Exh.32 that the said injuries were within 24 hours and they were caused by hard and blunt object. The findings of the said injuries on the person of the accused support this defence that he was beaten by R.M. Patil by briefcase. The prosecution failed to explain the injuries found on the person of accused.” 18. A Division Bench of this Court in the case of Geeta Keshav Shankar @ Geeta Mukesh Kharwa & Anr. Vs. The State of Maharashtra, in Criminal Appeal No.968 of 2006 decided on 12th February, 2009, observed as under: - “8. It is a settled principle of law that the prosecution should establish its case beyond reasonable doubt and should prove the chain of events which undoubtedly leads towards only one 19 conclusion that is the guilt of the accused. While the Court has to appreciate the evidence led by the prosecution and defence, if any, the circumstances alleged by the prosecution should be fully established. The presumption that accused is not guilty unless proved and the burden of proof to establish guilt of accused is on the prosecution, are principles of law which have remained unchanged in the criminal jurisprudence since times immemorable. 9. In the case of Hanumant Govind Nargundkar & Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343 ), the Supreme Court stated that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. ……… 10. xxx xxx xxx xxx 11. The Court has to examine and keep in mind that the accused “must be” and not merely “may be” guilty of an offence. The mental distance between `may be’ and `must be’ is long and divides vague conjectures from sure conclusions. ( Shivaji Sahebrao Baobade & Anr. V. State of Maharashtra, AIR 1973 SC 2622)”. 20 19. Applying the above principles to the facts of the present case, it is difficult for this Court to hold that the prosecution has been able to prove its case beyond reasonable doubt. 20. Another important aspect of this case is the conduct of the accused and veracity and truthfulness of his statement made under Section 313 of the Code of Criminal Procedure. The accused led no evidence in defence. It is a well settled principle of law that the statement made by an accused under Section 313 of the Code of Criminal Procedure can be used by the Court so far it is in conformity with the case of the prosecution i.e. to substantiate or aid the case of the prosecution which has otherwise been established by the prosecution. Where the prosecution fails to establish its case, there an accused cannot be convicted with reference to or on the sole basis of the statement under Section 313 of the Code of Criminal Procedure. It is also equally true that what an accused states before the Court