1 Cri.Appeal No.843/90 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 843 OF 1990 The State of Maharashtra .. Appellant Vs 1.Tukaram Hindurao Patil 2.Sarjerao Hindurao Patil, 3.Maruti Hindurao Patil, 4.Ananda Maruti Gadade, All residents of Burli, TalTasgaon, Dist: Sangli. .. Respondents (Orig.Accused) Mr. H.J.Dedhia,APP, for the appellant-State. Mr.Nitin V Pradhan,Advocate with Ms S.D.Khot for the respondents. CORAM : D.B.BHOSALE & R.G.KETKAR,JJ. DATE : 30/08/2010. ORAL JUDGEMENT : (PER D.B.BHOSALE,J.) 1. This appeal is directed against the Judgment and order dated 28.8.1990 passed by the learned Sessions Judge, Sangli in Sessions Case No.214 of 1989, by which the respondents, who were charged and tried for the offence punishable under sections 302 and 323 read with section 34 of the Indian Penal Code, have been acquitted. The respondents were prosecuted for committing murder of one Ananda Ramchandra Patil and for T 2 Cri.Appeal No.843/90 causing simple hurt to Ankush Ramchandra Patill; Kusum Ankush Patil and Subhadra Ananda Patil in furtherance of their common intention on 13.7.1989 at village Burli. 2. The prosecution case, as culled out from the evidence, in brief, is that on 12.7.1989 there was a marriage ceremony of accused no.4 – Ananda's son. In the marriage procession there was a quarrel between one Rajendra Sadashiv Patil and Mahadeo Jagannath Patil on account of crackers. The deceased Ananda intervened and slapped both the children. Thereafter, on 13.7.1989 at about 9.30 am there was altercation between the deceased on one hand and accused nos 2 and 4 on the other behind the Bhairoba temple. At that time, accused no.1- Tukaram and accused no.3-Maruti, who were armed with axe and cycle-chain, came running from the house of accused no.4. Accused no.1 Tukaram dealt axe blow on the head of Ananda. As a result of the assault Ananda fell down. P.W.6-Ankush Patil claims that he took Ananda to Kundal police station and lodged a report against the accused for the alleged crime. On his complaint, the police registered crime against all the four accused for the offence punishable under sections 323 and 326 read with section 34 of IPC and referred the injured Ananda to the Primary Health Center. Thereafter, Ananda was shifted to 3 Cri.Appeal No.843/90 Civil Hospital, Sangli and he was in the hospital for 4-5 days. On 18.7.1989 he succumbed to the injuries and thereafter the offence was altered and section 302 of IPC was added. The police carried out investigation and submitted a chargesheet. The accused pleaded not guilty to the charge. Their defence was of total denial. They have denied the alleged quarrel with the deceased in the marriage procession. However, they have not disputed the fact that in the procession there was a quarrel between Rajendra and Mahadeo and that the deceased had slapped them both. On that, again there was a quarrel between the deceased Ananda and the parents of Rajendra and Mahadeo. There was a scuffle between Ananda and the parents of these boys, in which Ankush – P.W.6 and Kusum – P.W.7 also sustained injuries. Insofar as assault on the deceased Ananda at the time of procession is concerned, they have expressed complete ignorance about it. 3. The prosecution in support of its case examined 13 witnesses. Out of this, P.W6-Ankush Patil, P.W.7-Kusum Patil, P.W.8Laxman Patil and P.W.10 Rajendra Patil are the eye- witnesses. P.W.1- Dr Shalini Gajanan Mangle conducted the post mortem whereas Dr. Manohar Shankar Chavan examined the deceased as well as P.W.6 and P.W.7 and issued injury 4 Cri.Appeal No.843/90 certificates. 4. The prosecution case rests mainly on the evidence of the eye-witnesses. The alleged incident occurred on 13.7.1989 at 9.30 am when the complainant-P.W.6 was at his home. His wife Kusum and the wife of the deceased Ananda were also at home. When he heard an altercation between accused nos 2 and 4 and his brother Ananda he came out of the house. His wife also followed him. Then he saw the altercation/quarrel between the deceased Ananda and these accused going on behind the Bhairoba temple. He also saw accused nos 1 and 3 came running towards the spot and that they were armed with axe and cycle-chain respectively. Accused no.1, according to the complainant – Ankush-P.W.6, dealt axe blow on the head of Ananda and accused no.3 dealt chain blow as a result of which Ananda fell down. P.W.6 further states that when his wife Kusum went ahead and tried to intervene, accused no.3 dealt chain blow to Kusum. Accused nos 2 and 4 also, according to this witness, assaulted the wife of the deceased with kick and fist blows. When the complainant tried to intervene, accused no.3 assaulted him with chain on his head and left eye. Thereafter, all the accused fled from the scene of offence. Similar is the version of P.W.7 and P.W 8 but their evidence is not consistent 5 Cri.Appeal No.843/90 and contain material discrepancies. 5. The evidence of the complainant Ankush- P.W.6 and Kusum – P.W.7 is not consistent even in respect of the actual blows allegedly inflicted by the accused on the head of Ananda. Kusum has stated that accused no.1 dealt 2-3 blows of axe on the head of Ananda, whereas Ankush and Laxman have stated that accused no.1 Tukaram dealt only one axe blow. Even in respect of intervening the quarrel, the evidence of these witnesses is not consistent. Ankush has stated that in the beginning his wife-P.W.7 intervened and then Subhadra and thereafter he intervened. Whereas Kusum has stated that she and her husband together rushed towards the spot. She does not state in her evidence that she intervened. She has then stated that accused no.3 Maruti beat them (p.w.7 and her husband) with cycle-chain. Similarly Kusum did not refer to the fact that accused no.2-Sarjerao and accused no.4 Maruti dealt kick and fist blows to Subhadra when she intervened. Laxman, however, has not stated that the accused assaulted Subhadra. Insofar as Laxman -P.W.8 is concerned, having regard to the location of his house and his evidence, it becomes doubtful whether he had actually seen the incident from the front side of his house. He does not claim that he went running to the spot. In view thereof, 6 Cri.Appeal No.843/90 we perused the FIR and it is pertinent to note that the FIR does not make any reference either to Laxman or to any other witness being present at the time of the incident. The FIR also does not state that Kusum and Subhadra intervened and they were assaulted by the accused. All these discrepancies/contradictions in the evidence of the eye-witnesses have been considered by the learned Sessions Judge in paragraphs 17 and 18 of the Judgment. It would be advantageous to reproduce relevant observations to consider whether the conclusions recorded by the trial Court are possible or they are perverse. The relevant observations in paragraph 17 read thus : - “It is pertinent to note that Ankush has not referred to the presence of Kusum and Laxman in his complaint-Exh.26. Further Ankush has not mentioned in a complaint Exh-26 that Kusum and Subhadra intervened into the maramari and that the accused no.3 Maruti dealt a chain blow to Kusum and accused nos 2 and 4 dealt kicks and fist blows to Subhadra. Contrary to his oral evidence he has mentioned in a complaint Exh.26 that accused no.2 Sarjerao and accused no.4 Ananda Maruti dealt fist blows to deceased Ananda. He admits in his cross- examination that his complaint was recorded as was narrated by him. He further admits that he was asked by the police who assaulted whom and also the names of the persons who witnessed the incident. Nevertheless he has not given these details which he gave in his deposition before the court, in the complaint Exh.26. Ankush has not offered any explanation for not mentioning the names of the eye- witnesses in complaint Exh-26. Kusum has stated that she sustained injuries on left leg and left side of chest. However, her medical certificate reveals that she had sustained injury below the left knee and on 7 Cri.Appeal No.843/90 the right mandible region. That means she did not sustain any injury on the left side of chest. I have already stated that there is no mention in the complaint Exh.26 that Kusum in5tervened; that she was beaten by the accused and that she had sustained injuries.” 6. We have also perused the medical evidence and more particularly the depositions of Dr.Shalini Mangle – PW 1 and Dr Manohar Chavan – PW 9 coupled with the post mortem notes and the injury certificates of P.Ws. 6, 7, and 8. We have also perused the observations made by the learned Sessions Judge in the judgment where he has considered this part of the evidence to hold that the evidence in respect of the injuries sustained by the PWs 6,7 and 8 is suspicious. The relevant observation in paragraph 18 of the judgment read thus : “It could be gathered from the evidence of P.HC Mali – PW 12 that he had referred all the injured i.e. Ananda, Ankush and Kusum to Primary Health Center, Kundal. Ankush was admittedly given first aid at Primary Health Center, Kundal. However, the record did not reveal that Ankush and Kusum were examined by the Medical Officer at Kundal. Ankush and Kusum were examined by the Medical Officer – Dr. Chavan of Civil Hospital, Sangli after 4.45 pm on 13.7.1989. I am at loss to make out as to why P.H.C.Mali referred Ankush and Kusum for medical when there is no mentioned in the complaint that they were assaulted during the incident. This is all suspicious.” 8 Cri.Appeal No.843/90 7. On perusal of the observations made and conclusions drawn by the trial Court, we do not find any reason to take a view at variance with the one reached 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 reasons recorded by the trial Court are perverse or unreasonable. Every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he retains the benefit in the appellate court also. We do not find any substantial or compelling reason as to why we should not give the benefit of doubt to the respondent-accused, as is given by the trial court. 8. Further, it is pertinent to note that the statements of all the three eye-witnesses, namely Ankush – P.W.6, Kusum – P.W.7 and Laxman – PW 8 were recorded three days after the incident. All the three witnesses were available for recording their statements immediately after the occurrence. No satisfactory explanation for the delay in recording the statements of these witnesses has been offered by the prosecution. All the three witnesses, according to the prosecution, were present when the incident occurred. They were present even thereafter. From the evidence of Dr. Chavan and the injury certificates Exhibits 9 Cri.Appeal No.843/90 34 and 35 it is clear that these witnesses were sent for medical examination and they were actually examined by the doctor. Despite this why their statements were not recorded is not explained by the prosecution at all. Insofar as the injuries sustained by these witnesses are concerned, Dr. Manohar Chavan – P.W.9, though in his examination-in-chief, has stated that the injuries sustained by them are possible by cycle-chain, he has also opined in the cross-examination that if the blow of a chain, like Article 13 before the court, is given the victim would suffer laceration. The wounds described by the doctor do not support the opinion expressed in the cross-examination. Similarly, the second injury that was sustained by the deceased was only superficial abrasion. Having regard to the opinion expressed by the doctor in the cross-examination about the injury one would suffer if the blow of a chain is given it does not support the ocular evidence that the deceased was assaulted with the chain by accused no.3. That apart, none of the witnesses has stated that on which part of the body of the deceased accused no.3 inflicted a blow with the cycle-chain, and thus, this part of the medical evidence also does not support the prosecution case, as has been rightly observed by the learned Sessions Judge in the impugned Judgment. This fact also renders assistance to the accused in their defence that the 10 Cri.Appeal No.843/90 complainant and Kusum suffered injuries during the scuffle on the previous night. We would like to examine the case from another angle. Ananda had sustained serious injuries and he was unconscious. Still he was taken to Kundal after about 2.1/2 hours since the occurrence of the incident. The delay in taking the deceased to Kundal has not been explained by the prosecution. It is against this backdrop, the learned Sessions Judge in paragraph 18 made the following observations. “We cannot rule out the possibility of Ankush and his family members having a deliberation and consideration as to who should be implicated for the assault on Ananda. Ankush admits that prior to the incident there were no disputes in between his family and the accused. Absolutely there was no reason for the accused to assault Ananda on 13.7.1989. The accused are not directly connection with the incident which occurred on the night of 12.7.1989. They are remotely concerned with that incident as it took place in the marriage procession of the son of accused no.4 Ananda Maruti. But as deceased Ananda had slapped Rajendra and Mahadeo, there was no reason for them to have any grudge against the accused. It is none of the prosecution case that the fathers of Rajendra and Mahadeo questioned the accused about the slapping of Rajendra and Mahadeo by deceased Ananda. Had they questioned the accused in that way, then it would have been otherwise and there would have been some reason for the accused to assault deceased Ananda. As such in my view, this is a case where there is no motive for the accused to assault deceased Ananda on that day. For these reasons, I am not inclined to place any reliance on the testimonies of the alleged eye-witnesses, namely, Ankush, Ksum and Laxman.” 9. The prosecution has also relied upon the circumstantial 11 Cri.Appeal No.843/90 evidence consisting of discovery of the axe and the cycle-chain by accused no.1 Tukaram and finding of the blood of the deceased (Group “A”) on his shirt and on the clothes of accused no.3. Finding of the blood group of the deceased on the shirts of accused nos 1 and 3 is of no avail to the prosecution in view of the fact that their shirts were attached after about three weeks without offering any explanation for the delay. Moreover, the blood group of accused no.1 , P.W.6, P.W.7 and of Subhadra is also “A”. In view thereof, the learned Sessions Judge has rightly discarded this piece of evidence for connecting the accused with the crime. Insofar as the axe and the chain are concerned, no special identifying marks in respect thereof were either noticed or stated by the witnesses apart from the fact that they were not kept in a sealed wrapper. Thus, on appreciation of the entire evidence on record we are satisfied that this is not a fit case to hold that the conclusions drawn by the trial Court are perverse and they could not have been drawn on any view of the evidence. It is now well settled that the appellate court in appeal against acquittal has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal should be interfered with or disturbed. Merely because two views are possible, the one taken by the trial Court for acquitting the 12 Cri.Appeal No.843/90 accused need not be disturbed unless the conclusions drawn by the trial Court on the evidence on record are found to be unreasonable, perverse or unsustainable. In the present case, the findings recorded by the trial court, on appreciation of evidence, cannot be termed as perverse or unsustainable. In the result, the Appeal fails and the same is dismissed. (R.G.KETKAR,J.) (D. B.BHOSALE, J.)