1 CRI.APPEAL NO.718-92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 718 OF 1992 The State of Maharashtra .. Appellant Vs 1. 1.Raghunath Narayan Palayekar, aged 40 yrs, 2. 2.Krishna Narayan Palayekar, aged 30 yrs, 3.Ramesh Babi Nimbalkar, aged 30 yrs, All resident of villlage Amboli, Tal.Sawantwadi,Dist-Sindhudurg. .. Respondents Mrs Usha V. Kejariwal, APP, for the appellant-State. Mr Sachin B Shetye, Advocate for the respondents. CORAM : D.B.BHOSALE & R.G.KETKAR,JJ. DATE : 16/09/2010. ORAL JUDGMENT : (PER D.B.BHOSALE,J.) 1. This appeal is directed against the Judgment and order dated 25.9.1992 rendered by the Addl. Sessions Judge, Sawantwadi, in Sessions Case No.24 of 1991, acquitting all the accused, who were charged and tried for the offence punishable T 2 CRI.APPEAL NO.718-92 under section 302 read with section 34 of the Indian Penal Code. It was alleged that the accused, in furtherance of their common intention, caused the murder of Gopal Madgaonkar on 23.1.1991 between 11 and 11.30 am. 2. The prosecution case, as culled out from the evidence, in brief, is that on 23.1.1991, P.W.11 – Manohar had gone to the garage at about 8.30 am. After finishing his work there he reached forest office, where he met deceased-Gopal Madgaonkar. The deceased requested him to take him to his house. They both accordingly went to the house of the deceased. From there, after waiting for few minutes, they again came to Dodamarg on his motor cycle. There, this witness claims, he saw the accused assaulting the deceased. He has stated that accused no.1- Raghunath assaulted the deceased with chapal. Accused no.3-Ramesh assaulted the deceased with a wooden- log on his head, as a result thereof the deceased collapsed. He has also stated that Ramesh hit the wooden log on liver of motor cycle and as a result thereof, the lever broke and the motor cycle fell on the ground. Having seen the incident, this witness was frightened and he left the scene of offence and went towards the garage. According to the prosecution, one Ganpat Mitgaonkar rushed to the house of the complainant on a motor 3 CRI.APPEAL NO.718-92 cycle and informed him about the assault on his father. The complainant, immediately rushed to the spot on the motor cycle and noticed bleeding injuries sustained by his father. Huge crowd was gathered at the scene of offence. One Govind Shirodkar (P.W.7) tried to contact police on telephone from Trimurti shop. Since he could not contact the police on telephone he himself went to the Banda police station and informed PSI Sawant about the incident. The Banda police reached the scene of offence at about 2.30 – 3 pm. Arjun, the son of the deceased, lodged a report on the basis of which an offence came to be registered and then the investigation was carried out. The chargesheet was submitted in the Court of J.M.F.C, Sawantwadi. The Magistrate, in turn, committed the case to the court of Sessions, the offence being exclusively triable by the Sessions Court. 3. The prosecution, in order to bring home the guilt of the accused, examined as many as 16 witnesses including P.W 8- Ashok, P.W.9-Jagannath and P.W.11-Manohar as eye-witnesses. The defence propounded by the accused was of total denial. A specific defence propounded by accused no.1-Raghunath was that he had appeared as a witness against P.W.3- Manohar in a case against him and, therefore, he has deposed against him in 4 CRI.APPEAL NO.718-92 the present case. The case in which the accused Raghunath had deposed against Manohar was for outraging modesty of his sister. 4. We have heard learned counsel for the parties and with their assistance gone through the entire evidence on record. From perusal of the evidence of PW 11 – Manohar, who is the main witness in the case, we found that his evidence consists of material inconsistencies, omissions and contradictions and, in view thereof, the trial Court has held that his presence at the scene of offence was doubtful. In other words, the trial Court held that he is not a genuine eye-witness. Before we scrutinize the evidence of Manohar (P.W.3), we would like to offer our comments in respect of the evidence of two other eye-witnesses. P.W.8 – Ashok and P.W.9-Jagannath claim that they had seen the accused scuffling with the deceased Gopal Madgaonkar, on the date of the occurrence. P.W. 8 – Ashok is the owner of Trimurti Cloth Center, whereas P.W.9–Jagannath was working with the forest department. Though these witnesses have stated about the scuffle they turned hostile and, over and above that, did not support the prosecution case against the accused. However, on the basis of the contradictions brought on record in the evidence of the Investigating Officer, the trial court held that their 5 CRI.APPEAL NO.718-92 evidence would support the prosecution only to the extent to prove that there was a scuffle between the deceased and the accused in front of Trimurti shop on the date of incident. Therefore, over and above, the evidence of these two eye- witnesses is of no avail to the prosecution to prove the actual assault. 5. P.W.11- Manohar in his examination in chief in respect of the actual incident of assault stated thus : “At about 11.15 am we reached Dodamarg market. I heard noise of running of a man. Therefore, I turned back and saw. I saw Krishna Palekar and Raghunath Palekar on the back side. And I also saw Raghunath Palekar beating Madgaonkar with chappal. I also saw on the spot Ramesh Nimbalkar. Deceased Madgaonkar caught my left leg. Krishna and Raghnath were pulling dhoti of deceased Madgaonkar. Hence, we both fell down along with motor cycle on the ground. Due to this failing the catch of deceased Madgaonkar was released and he rushed upon Raghunath Palekar. I immediately lifted the motor cycle from the ground. In the meanwhile, accused Ramesh Nimbalkar came in front of my motor cycle. In the meanwhile. Ramesh Nimbalkar, who was holding a wooden log in his hand delivered a wooden blow to deceased Madgaonkar on his right side scapular region. Then deceased went towards Trimurti shop. Then deceased Madgaonkar went towards cement platform of Trimurti and fell down there taking right hand below his abdomen. Ramesh Nimbalkar rushed to the deceased and delivered one more wooden log blow on his head. I immediately rided on my motor cycle and ran towards my house. I do not know the relationship between deceased Madgaonkar and accused.” 6 CRI.APPEAL NO.718-92 In the cross-examination of this witness, material omissions were brought on record. It would be relevant to reproduce the following portion from the cross-examination of this witness which, in our opinion, as has been observed by the trial court, creates doubt about his presence at the scene of offence. “The lever of my motor cycle was broke in the incident. It is true that, if lever of the motor cycle is broken the motor cycle cannot move further. I repaired the lever half and hour thereafter in my own house. I stated before police that we fell down on the ground from the motor cycle. I cannot assign any reason as to how it does not appear in my statement before police. I stated to police that, Madgaonkar caught me by my leg. I cannot assign any reason as to how it does not appear in my statement before police. I stated to police that, Ramesh Nimbalkar delivered one wooden log blow on the back of deceased. I cannot assign any reason as to how it does not appear in my statement before police. I stated before police that, after deceased Madgaonkar falling on the ground, accused Ramesh delivered one wooden log blow on his head. I cannot assign any reason as to how it does not appear in my statement before police. I stated to police that, I went to Trimurti shop and Laxmibak to tell the incident. I cannot assign any reason as to how it does not appear in my statement before police. I stated before police that deceased fell down in front of Trimurti shop. I cannot assign any reason as to how it does not appear in my statement before police. I had shown to the police about breaking of lever of my motor cycle. I do not know if panchanama was prepared.” It is pertinent to note that the prosecution has not brought any 7 CRI.APPEAL NO.718-92 evidence to show that the deceased and P.W.3 – Manohar were seen together on the motor cycle at the relevant time. Admittedly, the incident occurred on the crowded street and it was witnessed by more than 100 persons. None of the persons or the witnesses came forward to support the prosecution case in respect of Manohar's presence at the scene of offence. Manohar has stated that the accused Ramesh hit on the lever of his motorcycle with the wooden log as a result of which the lever of the motor cycle broke. He admits that if a lever of the motor cycle is broken it cannot move further. The prosecution has not brought any evidence on record to show that the liver of the motor cycle had broken or the motor cycle was there at the spot when the incident occurred. None of the witnesses states that the motor cycle was seen and it fell down because of the blows given by the accused. It was possible for the prosecution to attach the motor cycle in support of its case to establish the presence of Manohar at the scene of offence. Even panchanama of the motor cycle was not drawn to show that the liver of the motor cycle was broken in the alleged incident. The prosecution has not offered any explanation for such material omissions in the investigation. 6. From the evidence led by the prosecution, we could not 8 CRI.APPEAL NO.718-92 find anything on record to show that all the three accused were present at the scene of offence and they were seen by the witnesses, except Manohar–P.W.11. Accused nos 1 and 2 are brothers. Accused no.3-Ramesh had absolutely no reason or motive to join accused nos 1 and 2 for committing the alleged murder of the deceased. Even the presence of accused no.2- Krishna was doubtful at the scene of offence. P.W.5-Deepak in the cross-examination admits that accused no.1-Krishna had gone to Bombay two days before the incident and was not present in the village on the date and time of the occurrence. Similarly, P.W.9-Jagannath and P.W.10-Chandrakanta also had seen accused Krishna on the date of occurrence in the forest office. There is yet another witness Chandrasekhar. He was knowing, both, the deceased as well as the accused Raghunath and Krishna. However, he does not state that they were present on the spot when the incident occurred. That apart, the prosecution has also failed to bring on record any material to show that the accused were knowing that the deceased along with Manohar (PW.3) were to come at the Trimurti shop where the incident occurred. In view thereof, the trial Court has rightly held that there was no material on record to hold that the accused shared common intention to assault the deceased Mandgaonkar. 9 CRI.APPEAL NO.718-92 7. The defence, in the cross-examination of the witnesses has brought on record and which was taken note of by the learned Sessions Judge that they had seen the deceased being chased by the mob and there was a scuffle. This further shows that the accused were not responsible for the murder of the deceased. The witnesses are not telling the whole truth. In any case, on the basis of such evidence it would not be possible to convert the order of acquittal into an order of conviction after 20 years. 8. Insofar as medical evidence is concerned, the trial Court, on appreciation of the evidence in paragraph 24 of the impugned judgment, made the following observations: “Accused no.3 delivered one wooden splinter blow in the right scapular region and another blow on the head of the deceased. Prosecution has failed to prove common intention. There is no allegation against accused Krishna specifically that he delivered any blow to the deceased. Therefore, accused Krishna is excluded from commission of murder. Accused Raghunath Palayekar used Chappal for assaulting the deceased. The blow was given admittedly on the head. But police have failed to produce the chappal before the court. Therefore, prima facie it is difficult to appreciate that chappal blow could have caused any fracture of the skull of the deceased. For the sake of arguments even if it is presumed that, the chappal was bearing horse shoe even then it cannot be appreciated that it could cause a fracture of the skull. Besides, only one chappal blow is alleged. Thus, causing fracture of the skull by accused Raghunath also goes away. Now Ramesh Nimbalkar, 10 CRI.APPEAL NO.718-92 accused no.3 reported to have inflicted only one splinter blow on the head towards right side of the deceased. Another blow was given in the right scapular region of the deceased. Medical Officer Shri Hankare did not support any injury to the scapular region of the deceased. He supports injury to the right side of the head of the deceased just above the ear and no other injury. However, perusal of post mortem report Exh.44, it appears that there are five injuries. He opined that injury nos 1 and 5 are fracture injuries and have caused the death of deceased. Now how these four injuries occurred when the accused did not cause them in presence of this sole witness PW Manohar. Manohar did not answer as to how other injuries occurred. The defence counsel was successful in extracting from the prosecution witnesses that a mob was chasing deceased Madgaonkar and Madgaonkar was scuffling with them. Probably somebody from the mob would have caused the remaining injuries.” 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 reasons recorded by the trial Court are perverse or unreasonable. Every accused is entitled to the 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 to interfere with the judgment of acquittal passed by the trial Court. 11 CRI.APPEAL NO.718-92 10. it is now well settled that the presumption of innocence in favour of the accused further stands strengthened by the acquittal. It is also well settled that if two views are possible on appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible view, the appellate court is not expected to interfere with an order of acquittal even if it is of the opinion that the other view is better. 11. Thus, on appreciation of the entire evidence on record which we are satisfied that it is definitely not sufficient to hold that the prosecution has proved beyond reasonable doubt the involvement of the accused. The findings recorded by the trial Court cannot be termed as perverse. The jurisdiction of this 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. In the present case, 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. As a matter of fact, the learned APP could not and did not point out either manifest illegality or perversity in the conclusion drawn by the trial 12 CRI.APPEAL NO.718-92 Court. In the result, we confirm the order of acquittal. The appeal is, accordingly, dismissed. (R.G.KETKAR,J.) (D. B.BHOSALE, J.)