1 Cri.Appeal No. 115/91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 115 OF 1991 State of Maharashtra .. Appellant Vs 1.Namdeo Vishnu Hagwane, 2.Datta Vishnu Hagwane, 3.Tanaji Vishnu Hagawane, 4.Shivaji Vishnu Hagawane, 5.Vasant Namdeo Hagawane, All r/o Potal, Tal:Karjat,District- Raigad. .. Respondents (Orig.Accused) Mrs.U.V.Kejariwal,APP, Advocate for the appellant. CORAM : D.B.BHOSALE & R.G.KETKAR,JJ. DATE : 31/08/2010. ORAL JUDGMENT : (PER D.B.BHOSALE,J.) 1. The respondents-accused were charged and tried for the offence punishable under sections 147, 148, 149 and 302 of the Indian Penal Code and had been acquitted by the Judgment and order dated 27.11.1990 rendered by the 2nd Addl.Sessions Judge Railroad, Alibag, in Sessions Case No.123 of 1987. 2. The prosecution case, as unfolded from the evidence of the complainant-Sitaram Shankar Shrikhande (P.W.1), stated briefly, is that on 20.1.1987 there was a quarrel between the son T 2 Cri.Appeal No. 115/91 of accused no.1 and younger brother of the complainant Sitaram and on account of this incident their relations were strained. On 21.1.1987 at about 5.30 am the complainant's brother Bhaskar came out of his house to answer nature's call. At that time, accused nos 1 to 4 came running towards Bhaskar with knife and sticks. Accused nos 2 and 4 held Bhaskar and accused no.1 inflicted a knife blow on his back. Accused no.3 dealt stick blow on Bhaskar's back. As a result of the blow , Bhaskar collapsed and cried for help. This incident was witnessed by Shivaji Dhondu Shrikhande (P.W.3), who, at the relevant time, was brushing his teeth, sitting on the platform (Oti) outside his house. He claims that he saw the whole incident. After the assault the accused fled from the scene of offence. Thereafter, Shivaji Shrikhande, Deepak, Manohar and PW 1- Sitaram lifted Bhaskar and kept him on the platform (Oti). Bhaskar was offered water and then removed to Karjat Primary Health Centre for treatment. The complainant-Sitaram and his father also went to the hospital with Bhaskar. On the advice of the doctor at the Primary Health Centre, the complainant- Sitaram went to the police station, Karjat and lodged an FIR (Exh.24) against all the accused. In the meantime, Bhaskar was removed to Karjat hospital and there he succumbed to the injuries. Investigating Officer, Mr Kulkarni (P.W.10) carried out 3 Cri.Appeal No. 115/91 the investigation and after completing the same submitted chargesheet before the Judicial Magistrate First Class,Karjat. The learned Magistrate thereafter committed the case to the court of Sessions, Raigad at Alibag vide his order dated 20.10.1987. Before the Sessions Court after framing of the charge, all the accused pleaded not guilty to the charge. Their defence was that of total denial. 3. The prosecution case, in order to prove the charge against the accused persons, examined ten witnesses. Out of this, Sitaram Shankar Shrikhande (P.W.1), Shivaji Dhodu Shrikhande (P.W.3) and Maruti Atmaram Ruthe (P.W.7) are the main witnesses on whose evidence the prosecution heavily relied upon to bring home the guilt of the accused. On the other hand, the defence relied upon the evidence of Dr. Ujawala Kulkarni (P.W.8) in order to show that they have absolutely no connection with the murder of Bhaskar. 4. We have heard learned APP and with her assistance gone through the entire evidence on record. Sitaram Shankar Shrikhande (P.W.1) is the brother of Bhaskar. After referring to the quarrel that took place on 21.1.1987, between the son of accused no.1 and his younger brother Manohar, he has stated 4 Cri.Appeal No. 115/91 that on 21.1.1987 at about 6.30 am the incident of assault took place. Since the incident took place in the month of January, there was pitch dark at the time of the incident. The complainant and Shivaji (P.W.3) have admitted so in their evidence. It has also come in their evidence that at the relevant time the deceased Bhaskar had covered his body with bedsheet and he was also wearing sweater. Shivaji (P.W.3), who claims that he had seen the actual assault, has stated that accused no.2 held Bhaskar from the left side and accused no.4 held him from the right side. He also states that Bhaskar and these accused were facing the opposite direction. He has, however, not stated that despite this how he could identify accused nos 2 and 4 as the persons, holding Bhaskar. 5. At this stage before we proceed further, it would be relevant to refer to another aspect of the matter. It has come on record that the house of Bhaskar and the house of the accused are located in the opposite directions in the village. The houses of the deceased and Shivaji as per the map (Exh.27) are on the north side of the village whereas the house of the accused is situated on the south, and there is a dividing main road between their houses. It is not the case of the prosecution that every day Bhaskar, at a particular point of time, used to wake up for 5 Cri.Appeal No. 115/91 answering nature's call. It is in this backdrop, the trial Court has rightly held as to on what basis the prosecution claim that the accused persons were knowing that Bhaskar was to wake up for answering nature's call and they were waiting for him to come out at early hours on the date of the incident. The accused were not staying next door to the deceased and, therefore, it would not be possible to assume, in the absence of any evidence to that effect, that Bhaskar was to wake up early for answering nature's call which the accused were knowing and they were keeping watch and that they attacked the deceased the moment he came out. 6. The complainant (P.W.1) and Shivaji (P.W.3), both, claim that they had seen accused no.1 inflicting knife blow on Bhaksar's back. When the deceased was attacked he was sitting at a particular place and was answering nature's call. Shivaji (P.W.3) in cross-examination, however, has stated that he did not raise hue and cry nor did he shout for help at the relevant time because he was frightened. It is in this backdrop, our attention was invited to the medical evidence. The Post Mortem of Bhaskar was conducted by Dr.Ujawala Kulkarni (P.W.8). Her evidence does not support the ocular evidence at all. On the basis of the post mortem notes she has categorically stated in 6 Cri.Appeal No. 115/91 her evidence that Bhaskar did not have a single external injury on his person. The Post Mortem notes show that Bhaskar had suffered only internal damage to his thorax region. His lung was found ruptured. If version of the eye-witnesses about the assault with the knife was correct the doctor would have noticed stab injury on the back of the deceased. The doctor, however, after perusing the post mortem notes, has clearly stated that the deceased did not sustain any injury on his back. It is true that the evidence of head constable Girme (P.W.9) shows that he had noticed stab injury on the back of the deceased. The evidence of punch witness – Jayram Srikhande (P.W.4) to the inquest panchnama shows that he saw injury on the right hand side on the back of the dead body. However, in the cross he has stated that there was a bandage and, therefore, he could not see the injury. The inquest panchanama was conducted in the hospital after the deceased succumbed to the injuries. The panch witness could not make positive statement regarding stab injury sustained by Bhaskar. In this backdrop, as has been rightly observed by the trial Court, the evidence of the eye-witnesses becomes doubtful and cannot be relied upon to convert the order of acquittal after more than twenty years into conviction. 7. We have also examined the evidence of eye-witnesses in the 7 Cri.Appeal No. 115/91 light of other admitted facts. Bhaskar, as stated earlier, was wearing sweater and he had covered himself with a bedsheet. The sweater and the bedsheet would have been the best pieces of evidence to show that Bhaskar was actually attacked and had sustained stab injury on his back. But the prosecution, for the reasons known to them, failed to attach these articles. As a matter of fact, there was no mention at all to these articles in the inquest panchanama. Insofar as recovery of the weapon at the instance of the accused is concerned, the panch witness Maruti Gaikwad (P.W.6) did not support the prosecution at all and in view thereof his evidence also is of no avail to the prosecution to connect the accused with the alleged incident of murder. 8. We have also examined the evidence led by the prosecution to prove the scene of offence. In order to prove the scene of offence, the prosecution relied upon the spot panchanama and the evidence of Jayram Srikhande (P.W.4). According to the eye-witnesses, the incident occurred at a particular place,i.e. Bathing place to the south -east corner of the courtyard of Bhaskar's house. The trial Court has considered this aspect extensively in paragraphs 17 and 18 of the judgment. It would be relevant to reproduce the 8 Cri.Appeal No. 115/91 observations made by the trial Court in paragraphs 17 and 18 of the judgment which read thus :- “17. In his cross-examination, complainant Sitaram has admitted that there is a bathing place to the south-east corner of the courtyard of Bhaskar's house. It is incidentally the admission of Sitaram that Bhaskar was staying in the house owned by Sitaram's father. In the evidence of Sitaram, it is not mentioned that Bhaskar was passing urines in bathing place. But in the evidence of Shivaji, he mentions that he went to pass urines to the bathing place itself to the south-east corner of the courtyard of Shankar's house i.e complainant's father and which is also admitted by the complainant. Since Shivaji has seen the incident with his own eyes, he must be believed when he says that Bhaskar went to pass urine to the bathing place. Now, if one refers to the map vide Exh.27 the scene of offence is shown to have situated to the north-east corner of Shankar's house. It is the prosecution story that Bhaskar was assaulted on the same place and in same position while he was passing urines. As per panchanama vide Exh.31 and as per map Exh.27, it is seen that the earth near scene of offence had become wet and obviously because of the urines. This means that deceased Bhaskar had gone to the north-east corner of the premises to pass urines. But as stated earlier, Shivaji states that Bhaskar went to pass urine to the bathing place which is situated to the south-east corner. This is exactly contrary to the situation shown in the panchanama and the map. If Shivaji has seen the incident with his own eyes, he should not have made such confusion regarding the scene of offence. It is not the prosecution story that Bhaskar was dragged and then was assaulted near the bathing place. The prosecution is specific about its story that Bhaskar was assaulted in the same position and place where he was passing urine. There is considerable distance between these two corners. They are exactly opposite to each other. Had it been only of some inches or even one foot, it would have been understandable. But the distance between south-east corner and north-east corner is 9 Cri.Appeal No. 115/91 more than 16 feet. In such circumstances, it is not expected of an eye witness to make confusion regarding the spot. Therefore, I am of the view that this piece of evidence also creates doubt in mind whether deceased Bhaskar was assaulted on the same spot as alleged by the prosecution. This strengthens belief that due to the row caused because of the attack and counter attack between the parties, it could not be confirmed who assaulted whom and who were injured and because of whose assault the deceased died. 18. Then as per the evidence of the witnesses Shivaji and Sitaram and from the evidence of Circle Inspector and the panch witness and also from the map, it is clear that the lane through which the accused persons allegedly came to the house of deceased Bhaskar so situated that the persons coming through that lane could be easily seen by any one. So it is impossible again that the accused persons should have chosen that way for going to the house of the deceased when they could have gone straightway by avoiding the lane, to their destination. This is again impossible that when Shivaji was allegedly standing in the verandah of his house accused persons would have dared to proceed to the house of the deceased in the presence of Shivaji with weapons in their hands. So the inconsistency in the evidence of the witnesses and the documents on record regarding the scene of offence and the impossibility of the accused persons to have chosen a particular way to go to the house of deceased creates doubt in my mind as to the truthfulness of the prosecution story.” 9. We do not find any reason to take a view at variance with the one taken in the order of acquittal passed by the trial Court. The conclusions recorded by the trial Court are based on appreciation of oral evidence. Similarly, we do not find that the 10 Cri.Appeal No. 115/91 reasons recorded by the trial Court are perverse or unreasonable. Every accused is entitled to benefit of doubt regarding his guilt and when the trial Court acquits him, he retains the benefit in the appellate Court also. We do not find any substantial or compelling reason as to interfere with the judgment of acquittal passed by the trial Court. 10. The Apex Court in catena of decisions has laid emphasis on the general principles of criminal jurisprudence that the presumption of innocence in favour of the accused further stands strengthened by the acquittal. It is also settled that if 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 is not expected to 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. In other words, unless there is absolute assurance of guilt, the appellate Court is not expected to interfere with the order of acquittal. Keeping in view the aforestated position of law, we have gone through the entire evidence and also the impugned judgment to find out whether it could be characterised as perverse or whether there is manifest illegality and that the conclusion arrived at could not have been 11 Cri.Appeal No. 115/91 possibly arrived by any Court acting reasonably and judiciously. In our opinion, the instant judgment, cannot be characterised as perverse. 11. Thus, we have re-appreciated the entire evidence on record which, in our opinion, definitely, is not sufficient to hold that the prosecution has proved beyond reasonable doubt the involvement of the accused. It cannot be stated that the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously. That apart, the learned APP could not and did not point out either manifest illegality or perversity in the conclusion drawn by the trial Court. In view thereof, we confirm the order of acquittal. The appeal, accordingly, fails and dismissed as such. The bail bonds, if any, stand cancelled. (R.G.KETKAR,J.) (D. B.BHOSALE, J.) 12 Cri.Appeal No. 115/91